It seems every time we turn around there’s another story about a Hollywood or media executive or government official guilty of sexual harassment. Could there be someone like that in your workplace? Unfortunately, yes. Sexual harassment has been illegal for more than 50 years, yet it still runs rampant. Allegations alone can be enough to bring down a once-powerful executive – and often the company s/he represented. Add to that, the stories from many women, coming forward as a result to allege that men in all sectors at all levels have sexually harassed them and many times their complaints were ignored or swept under the rug. This trend if anything appears to be growing. Employers, business owners and HR practitioners need to know how to respond to sexual harassment allegations, and what measures they can, and should, take to prevent it from occurring at all. Join Janette Levey Frisch, “The EmpLAWyerologist” as she outlines the appropriate actions to take when you receive a sexual harassment complaint and how to be proactive in ensuring a harassment-free work environment. Some of the Many Things You Will Learn During this Informative HR Webinar include: Your legal obligations to prevent harassment in your workplace What constitutes harassment and the types of harassment that can occur in the workplace Proper responses to allegations of sexual and unlawful harassment in the workplace to protect your organization What to do if the alleged harasser, is your CEO or a “C” Suite Executive? Understanding and complying with your obligations regarding confidentiality and refraining from retaliatory actions. And much more

1. Investigating and Preventing
Sexual Harassment at Work
Janette Levey Frisch, Esq.

2. Janette Levey Frisch, Esq.
Employment and HR attorney Janette Levey Frisch has more
than 20 years of legal experience, more than 10 of which
she has spent in employment law. It was during her tenure
as sole in-house counsel for a mid-size staffing company
headquartered in Central New Jersey, with operations all
over the continental US, that she truly developed her
passion for Employment Law.
Janette works with employers on most employment law
issues, acting as the Employer’s Legal Wellness Professional
— to ensure that employers are in the best position
possible to avoid litigation, audits, employee relations
problems, and the attendant, often exorbitant costs.

3. Disclaimer & Proprietary Information
• The contents of this presentation are for informational purposes only and
are not intended as legal advice or to replace consultation with local
counsel.
• This presentation is intended as an overview of key legal issues with
respect to investigating and preventing sexual harassment allegations.
Employment laws are subject to change and can vary from state to state.
Consult with local employment counsel with any questions specific to
your organization.
• Content herein is proprietary information and may not be duplicated,
published or disseminated without express permission from Janette
Levey Frisch, Esq

4. First Things First… What Is Sexual
Harassment?
• Unwelcome sexual advances, requests for sexual favors or other verbal
or physical conduct of a sexual nature, where submission to or rejection
of such conduct either implicitly or explicitly:
a) affects one’s employment, OR
b) unreasonably interferes with one’s work performance; OR
c) creates an intimidating, hostile or offensive work environment.
• The victim can be male or female, and does not have to be the person
harassed, but could be anyone affected by the harasser’s conduct.
• The harasser can be the victim’s supervisor, an agent of the employer,
a supervisor in another area, a co-worker, or a non-employee.

5. A Few Sexual Harassment Facts
• Unlawful sexual harassment may occur without economic injury to or
discharge of the victim.
• Same sex harassment violates Title VII if the employee is harassed
because of his or her gender.
• Unwelcome conduct under a protected basis violates Title VII if it creates
an intimidating, hostile, or offensive work environment.
• The harasser’s conduct must be unwelcome.
• An employer is always liable for harassment by a supervisor that results
in tangible employment action. (More on that in a bit).

6. Applicable Laws
Title VII of the Civil Rights Act of 1964:
“It shall be unlawful practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national
origin; OR
2) to limit, segregate, or classify his employees or applicants for
employment in any way which would deprive or tend to deprive
any individual of employment opportunities or otherwise adversely
affect his status as an employee, because of such individual’s
race, color, religion, sex, or national origin. (emphasis added).

7. Title VII, cont’d
Title VII does not explicitly prohibit sexual harassment, but the U.S.
Supreme Court held that it is a form of unlawful sex discrimination in
violation of the Title VII in Meritor Savings Bank v Vinson 106 S. Ct.
2399, 40 EPD ¶ 36,159 (1986).
NOTE: Consent is not necessarily a defense. The Supreme Court held
that if the conduct was unwelcome that submitting to the conduct does
not make it consensual.
Oncale v. Sundowner Offshore Service, Inc., 523 U.S. 75 (1998): The
Supreme Court decided that Title VII applied to same-sex harassment
cases where the plaintiff can prove that the harassment is because of
the plaintiff’s sex. But if an employee is harassed solely because he or
she is gay, that does not violate Title VII, since the Act does not prohibit
discrimination based on sexual orientation.

8. Applicable Laws
• Many states and localities have passed laws prohibiting
sexual harassment. Always check the laws of the states and
localities where your employees work.
• Some states and localities have passed legislation prohibiting
harassment based on sexual orientation or gender identity.

9. Elements of a Sexual Harassment Claim
• Conduct is unwelcome,
• Victim/target belongs to a protected class,
• Incident(s) result in a tangible employment action; OR
• Perpetrator created a hostile work environment, AND
• There is legal basis upon which to hold the employer liable.

10. 2 Types of Sexual Harassment
• Quid Pro Quo: a) an individual’s submission to or rejections of
unwelcome sexual conduct; and b) is used as a basis for employment
decisions affecting the individual.
SUCH AS:
• hiring, firing, promotions, awards, transfers, or disciplinary action.
(e.g. supervisor coerces employee into sexual relationship and
awards him/her promotion or disciplines employee who rebuffs sexual
advance.
Hostile Work Environment: unwelcome sexual conduct unreasonably
interferes with an individual’s job performance or creates an
intimidating, hostile, or offensive working environment. Can constitute
discrimination, even if there are no tangible economic job
consequences (whether by co-worker or manager).

11. Examples of Hostile Environment
TYPICAL EXAMPLES of misconduct which may constitute evidence of a
hostile environment are:
•displaying “pinup” calendars or sexually demeaning pictures;
•making sexually oriented jokes or offensive remarks; or
•subjecting another employee to unwelcome sexual advances or touching.
Remember: a) anyone ( supervisor or co-worker) can create hostile
environment; b) intentions don’t matter if person felt harassed/humiliated;
c) different people may react to and interpret behaviors differently.

12. Why A Good Investigation is Important
• Well-done investigations:
• may resolve issues at the lowest possible level;
• send a message that you expect employees to comply with
policies relating to unacceptable conduct;
• usually result in the parties feeling that they have been treated
fairly, no matter what the outcome;
• will assist in defending your organization if an employee sues or
files a charge.
• NOT investigating deprives you of a strong and needed defense
to a lawsuit or charge.

13. • When you don’t investigate or you do a poor investigation;
o You can’t properly remediate the problem;
o You send your employees the message that their policies
don’t really mean what they say;
o You may cause your employees to hesitate to report future
incidents.
What (Else) Happens When You Don’t
Investigate?

14. Who Should Investigate?
• Use an investigator who is trained in the skills that are
required for interviewing witnesses and evaluating credibility;
• Person complained of should not have supervisory authority
over the investigator;
• Investigator should be familiar with and follow employer’s
investigation policies;
• Does not need to be an attorney;

15. Investigation: First Things First
• What if the complainant does want you to investigate?
• Failure to investigate, even at the complainant’s request “risks
liability for not quickly and effectively remedying the situation. A
reasonable jury might hypothesize that it requires substantial
emotional strength for a harassment victim to overcome the
embarrassment and intimidation engendered by the abuse, report
the harassment endured, and face becoming the subject of office
schadenfreude. Too narrow a view of what is appropriate in
reacting to an employee's conflicting needs for protection and for
privacy may inhibit well-founded, valid complaints; too broad a
view may unreasonably expand employers' duties beyond what
Title VII requires and lead to unpleasantly gelid work
environments.” (Gallaher v. Delaney, 139 F.3d 338 (2nd Cir. 1998)

16. Investigation
• First: Get the facts;
• Identify all the principals:
• Complainant or Harassee;
• The Accused or Harasser;
• Witnesses
• identified by the Complainant
• identified by the Accused;
• The Supervisor or Manager

17. Investigation
• Interview all principals
• Make a list of sub-candidates identified by principals
• Target individuals for an interview that may offer direct
testimony (eye-witness accounts)
• Avoid individuals with second-hand information from a third party;
 Avoid ‘office sweeping’ interviews

18. Investigation, cont’d
• Listen to everything!
• Avoid interrupting the interviewee;
• Write down your questions beforehand (ask open-ended
questions, ask follow-up questions, and ones aimed at finding
movtive)
• Try to maintain eye contact with interviewee as much as possible;
• Avoid nodding and making emotional facial expressions.
• Repeat the question in a different way later in the interview
• Look for inconsistency

19. Investigation, cont’d
• Avoid ‘filling in the blank’ responses
• Don’t settle for the ‘You know?…’
• Don’t let the interviewee turn you into the interviewee!
• Be careful of the “answer the question with a question”
responses

20. Tailor Questions to the Allegations
• Example:
• Was the conduct in issue sexual in nature?
• Difference between expletives and directing language at a specific person
• Did the conduct unreasonably interfere with a persons’ work
performance?
• If behavior is physical, one instance might be enough;
• If behavior is verbal, one comment may not suffice.
• Was the conduct unwelcome on the part of the recipient?
• Was there a previous relationship between the complainant and
the respondent where such conduct was welcome? If so, was
there a discussion/action that should have or did notify the
respondent that such conduct was no longer welcome?

21. Tailor Questions to the Allegations, cont’d
• Example: Retaliation
• Did the complainant make a complaint of harassment or
discrimination?
• If the complaint was made in good faith, that’s enough;
• Did the complainant suffer a threat, intimidation, reprisal or
adverse action related to employment?
• Is there a causal connection between the two events?
• Did alleged retaliator know about the protected conduct?
• Was the employment action in progress before the complaint was made?

22. Other General Questions
• Are there any documents, e-mails, etc. that you think I should review?
• Why are those items relevant to this claim (if relevance is not
obvious)
• Are there any persons that you know of who have relevant
information?
• Who are they and what information do you think they have?
• Have we discussed all of the key information relating to this
claim/your response?
• Probe issues regarding motive to be untruthful;
• For respondent who denies allegations: Do you know of a motive
for the complainant to make a false accusation?

23. What Should You Do About…?
• Hearsay- A statement made out of court, offered to prove its truth;
• Rumor- disregard unless rumors are part of the claim (example=
case where either complainant or accused did not want to be
questioned by female attorney)
• Opinion not backed by fact- deal in facts;
• Credibility (important in he said/she said cases);
• Is there a motive to be untruthful?
• Is allegation inherently implausible?
• Demeanor and cooperation
• Watch for cultural issues (e.g. witness not looking investigator in the eye as
example; But: cultural issues do not excuse violation of policy)

24. • Anonymous letter sent to employer alleges that a supervisor sexually
harasses female employees. Investigator interviews female
employees, but fails to evaluate credibility, differentiate between first-
hand knowledge, hearsay, rumors, or mere gossip. Based on this
report, employer fires supervisor.
• Result: $1,000,000 damages to supervisor for wrongful termination
(Kestenbaum v. Pennzoil Co. (1988) 108 N.M. 20);
• Cotran v. Rollins Hudig Hall (17 Cal. 4th 93): if the employer can
prove it had a good faith belief that employee violated rules, it will not
be held liable for wrongful termination even if it turns out that
conclusion re rule violation was wrong.
Avoid Slip ups…

25. • Take Every Complaint Seriously – Do not respond mechanically, do not use a
one-size-fits-all approach;
• Investigate all allegations promptly and communicate with the complainant-
especially if you are also investigating other matters at the same time;
• Continue following up with the complainant: let him/her know that the matter is
still active and that you are taking it seriously;
• Document, document, document !!!!!
• Document all conversations, all steps taken, your conclusions and your
reasons.
• Issue a report at the end of the investigation. Frame the issues primarily (if not
solely) in terms of whether any particular policies have been violated, and if so
which ones. If citing statutes or laws, speak with legal counsel first.
Investigations- What Else Should You Do?

26. • Take detailed notes and type them up shortly after completing an
interview (You can also summarize after the interview);
• Should interviewees be asked to sign summary statements?
• Many trainers recommend this
• Pros and cons;
• Recording pros: clear record of what was said and how it was said;
• Recording cons: has a chilling effect, tapes aren’t always audible,
expense associated with transcription
About that Documentation…

27. • Retain ALL investigative materials
• Do not discard drafts or working notes
• Keep an organized file
• Date your interview notes
• Keep a chronology
• Evidentiary sanctions for willful destruction of investigative materials
• Attorneys know what to look for and they will ask for it!
• Report:
• Introduction and overview
• Identify persons interviewed, dates of interviews, and documents reviewed
• Note anyone who refused to be interviewed or could not be interviewed
• State reason for not interviewing person identified as possible witness
• Use a separate heading for each allegation
• Allegations should comport with claims in written complaint
Documentation, cont’d

28. • Don’t retaliate!!!
• Follow up with anti-retaliation communications to
complainant(s) and witnesses: tell them to let you know if they
sense retaliation by anyone;
• If applicable, remind the subject of the complaint that any
retaliation is prohibited and will be subject to discipline up to
and including termination of employment.
What Else Should You Do? Cont’d

29. • There is usually corroborating evidence to help you determine
credibility-but if there isn’t, consider the following statement:
• Both parties were credible in their statements and explanations
for their actions. There is no evidence to support a conclusion
that [complainant] had a motive to fabricate the claim, yet there is
also no evidence other than his statement that the event
occurred. There are no co-workers who observed inappropriate
conduct on the part of [respondent] towards [complainant] or any
other man in the office. [Respondent] denies having any romantic
interest in [complainant].
What if You’re Not Sure Who’s Telling the
Truth?

30. In General:
•Show sensitivity, while remaining impartial and be professional;
•Be respectful to the complainant, all witnesses and even the
subject of the complaint (giving him/her the benefit of the doubt);
•Review applicable statutes, policies and codes;
•Review positions of principal parties in organizational hierarchy;
•Ask the right questions.
What Else Should You Do? Cont’d

31. Failure to investigate at may be all but begging for liability.
•See Kimzey v. Wal-Mart Stores (1997)107 F.3d 568;
•Employee complained that her supervisor and store manager made
lewd jokes about her breasts, and that the supervisor tried to kiss her;
•Employer did not investigate.
•Result: Verdict for plaintiff of $1 in economic damages, $35,000 for
emotional distress, and $50,000,000 in punitive damages (later reduced
to $5,000,000)
Some More Points About Investigations…

32. • When determining extent of employer liability, courts will look at the
thoroughness of the investigation. (Applies to all types of
harassment/discrimination)
Case Example: Booker v. Budget Rent-A-Car Systems, 17 F. Supp.
2d 735 (M.D. Tenn. 1998).
• $17 million judgment against a California aircraft manufacturer.
• The HR representative who investigated the claim was chastised by
the court for not investigating further.
• The HR only focused on the original written complaint submitted by
the complainant.
Some More Points About Investigations…

33. Another case example:
•Castalluccio v IBM 3:09CV-1145 (TPS)Dist CT 1/24/14 just under
$1.5 m verdict for 61-year old age discrimination plaintiff.
•Jury found that IBM “knew or showed reckless disregard for whether its
termination of [the employee] constituted age discrimination.”
•Court concerned about investigation that “while purporting to make
objective findings” failed to consider evidence that would have been
favorable to the employee.” Court suspected that “the purpose of the
investigation was more to exonerate IBM than to determine if [the
employee] was treated fairly.”
•Bottom Line: Thoroughness includes considering all relevant evidence,
even and especially if it does not put the employer in a favorable light.
Thoroughness of Investigations

34. Baldwin v. Blue Cross/Blue Shield of Alabama (11th Cir. March 19,
2007).
Employee challenged adequacy of investigation.
Held:
•Employer not required “to conduct a full-blown, due process, trial-type
proceeding in response to complaints of sexual harassment.
•All that is required of an investigation is reasonableness in all of the
circumstances;
•Permissible circumstances may include conducting the inquiry
informally in a manner that will not unnecessarily disrupt the company's
business, and in an effort to arrive at a reasonably fair estimate of truth.”
Thoroughness of Investigations, cont’d

35. • Oral or written warning or reprimand
• Transfer or reassignment
• Demotion
• Reduction of wages
• Suspension;
• Termination
Corrective Action

36. • Training or counseling of harasser to ensure that he or she
understands why his or her conduct violated the employer’s
anti-harassment policy; and
• Monitoring of harasser to ensure that harassment stops.
Corrective Action, cont’d

37. 3 Main Concerns:
•PRIVACY;
•DEFAMATION;
•QUALIFIED PRIVILEGE.
Confidentiality

38. Privacy: the law generally balances an employer’s interest in
maintaining a safe and efficient work force against the employee’s right
to be free from unreasonable invasions of privacy.
3 Common Law Privacy Rights:
• Public disclosure of private facts (informational privacy);
• Placing in a false light;
• Intrusion into another’s seclusion (autonomy privacy);
Investigation - Confidentiality, cont’d

39. • Right to keep certain personal information from public
knowledge. Prohibits employers from disclosing information
that would be offensive to a reasonable person and not of any
legitimate concern to the public.
• Example: An investigation publicizing information about
someone’s private affairs, such as HIV-status or psychiatric
condition.
Informational Privacy

40. • Assigning false attributes or associations to the targeted
employee, and then causing them to be broadcasted to a large
number of people. Can lead to lawsuit and award of damages
for invasion of privacy.
• Example: Wrongly labeling someone a molester or racist
could create liability under this theory –even if there is no
actual damage to the person’s reputation.
False Light Privacy

41. • Protects employees’ physical and psychological “space.” Any
intrusion of an employees’ physical environment or
psychological liberty could be a common law invasion of
privacy—unless there is a legitimate business purpose.
• Example: Prohibiting/stopping an employee from using the
rest room.
Autonomy Privacy

42. • You may obtain damaging and even false information during an
investigation;
• Divulging that information to anyone, including co-workers, friends, staff
incurs a risk of liability for defamation of character;
• Elements of Defamation:
• False oral or written statement;
• Communicated to third party;
• With reckless/malicious disregard for the truth;
• Damages a person’s reputation either by exposing the person to
hatred, contempt ridicule or causing him/her to be shunned or
avoided; AND
• No qualified privilege to divulge the information.
Confidentiality-Defamation

43. • Allows employers to divulge even defamatory information to people
who have a “need to know”;
• Examples of people with a “need to know”:
• The person in charge of the investigation
• Disciplinary Committee
• Appointed authority (e.g. Directors, Deputy Directors)
• Legal Unit
• Does NOT apply to defamatory information disclosed in bad faith or
lacking in credibility;
• Example:
Confidentiality-Qualified Privilege

44. • Best tool for eliminating sexual harassment at work;
• Prevention tools:
• Anti-harassment policies;
• Training employees;
• Monitoring enforcement and compliance with policies;
• Investigations.
• Prompt, appropriate corrective action.
Prevention

45. Thank-you for participating
Contact Janette Levey Frisch, Esq., (732) 902-0728
janette@theemplawyerologist.com
www.theemplawyerologist.com
@JLeveyFrisch
Contact i-Sight
j.gerard@i-sight.com
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