Sexual harassment claims are not going to go away any time soon. The media's reports of harassment claims against visible, influential persons as well as substantial jury verdicts against harassers and their employers emphasize this is an issue which companies cannot ignore. Surprisingly, however, there are still companies which ignore the subject, hoping it will never find them. These companies are being naive and/or foolish. Employees are already aware of sexual harassment and their rights.
The courts, particularly those in New Jersey, have imposed a responsibility upon employers not only to stop and remedy harassment when they become aware of it but also to educate and train their employees to avoid and detect such conduct. Although it is not clear whether such efforts will insulate an employer from all liability, it will reduce the potential exposure for the company, especially for punitive damages and for harassment by non-supervisory personnel.
The purpose of this newsletter is to focus upon one aspect of a company's harassment policy -- -the investigation. It is important for a number of reasons: (1) it should reduce a company's potential expo-sure for harassment which has al-ready occurred; (2) it tends to stop future harassment; (3) it provides the company with an opportunity to find out what actually happened before memories fade, plaintiff's attorneys get involved, and positions harden; and (4) it may satisfy the victim and reduce the chances of a damages suit. We would also point out that we have begun to see claims seeking damages for inadequate investigations. A word of caution, however. There are few hard and fast rules. The law is evolving and the courts have not yet identified the rights of the complainant or accused, or described the procedures to be followed by the employer.
What is the Nature of the Investigation?
Although New Jersey courts have not yet described what an em-ployer is supposed to do in an investigation, it appears that the courts have created a duty to investigate as a means to stop the harassment promptly and remedy it before the situation becomes more serious, There are some, however, who are attempting to turn the investigation into a mini-lawsuit, calling for rights of cross-examination, hearings, appeals, etc. At this time it is unnecessary for the private employer to submit to these demands as long as the process followed is generally fair and there is an objective evaluation of the available evidence. While this is an admittedly general goal, we have attempted in this newsletter to identify what should be done by answering the questions we are most often asked. While the questions and answers may seem simple and obvious to some, there are many employers who are not following the proper procedures in doing their harassment investigations.
We would point out that collective bargaining agreements may require certain procedures to be followed. Similarly, public employers may have constitutional limitations which do not apply to the private sector, e.g. hearings.
We generally do not recommend that the procedures to be followed be described in detail in writing. This potentially reduces the company's discretion and subjects it to claims by disappointed parties that the company did not comply with its own procedures when there were good reasons not to in a particular case. Having said this, we still believe investigators must be trained and familiar with how an investigation should be done, and that a company generally follow the same process in performing investigations.
Who should conduct sexual harassment investigations?
The investigators must have good judgment, and be knowledgeable about sexual harassment and how to do an investigation. They should also be persons who make good witnesses because there is often ensuing litigation when they will need to testify. Investigators should also have the type of per-sonality which engenders trust and respect from the complainant, accused and others involved. It is vital that both the complainant and the accused believe they have had a chance to tell their story and that their claim/defense has been fully investigated. Human resource personnel, in-house attorneys and out-side counsel are the types of investigators typically used but others who have the requisite qualifica-tions may also be appropriate. Every company should have designated investigators.
If the alleged harasser is a high level executive, this poses a number of problems, not the least of which is who should do the investigation. In most cases, it will probably be a good idea to retain someone outside the company -- e.g. special outside counsel -- to avoid the claim of whitewash and to avoid putting an employee investigator into an impossible position.
How many investigators?
Generally, there should be two investigators. The presence of a second person at an interview will help the company rebut challenges to the process and evidence by those interviewed. It is often a good idea that there be both a male and female investigator to avoid claims of gender bias by one party or the other.
Will investigations conducted by attorneys be protected from disclosure?
This is an issue when there is a suit for damages after the inves-tigation. Often an employer will want the investigator to testify as part of its defense. There are various privileges, however, which po-tentially apply to the investigator if the employer wants to avoid disclo-sure. If the investigator is an attor-ney, the attorney/client privilege po-tentially applies to communications between the attorney and employees who qualify as part of the client.
We would note that there is a recent federal court decision in New Jersey holding that when an employer asserts as a defense that it has taken remedial action in re-sponse to a harassment complaint by the plaintiff, the company has waived the attorney/client privilege which would otherwise apply if an attorney did the investigation. This also means the attorney who conducted the investigation, may not act as trial counsel for the company. As a result, the company should not ask the individual attorney who is likely to defend the harassment suit to act as the investigator.
Should written statements be required?
We recommend that the alleged victim be required to prepare a written complaint containing all of her/his allegations of sexual ha-rassment. This will enable the investigators to define initially the parameters of their investigation. It will also permit the investigators to confront the alleged harasser with the full scope of the allegations. A collateral, but important, benefit is that a written statement makes it more difficult for the complainant to change her/his story later.
Whether the alleged harasser should provide a written statement is a matter of debate. We differ among ourselves as to whether this is wise and would suggest each situation be evaluated on its own merits. If a written statement is obtained, the alleged harasser must be given sufficient time to consider the allegations against him.
While written statements from other witnesses may, on a case by case basis, be appropriate, we do not recommend that they generally be required of anyone other than the complainant and harasser. However, the investigators should take notes which can be used a later time as evidence of the witness' statement.
Confidentiality - Should the identity of the complainant be revealed?
Yes, except in the most unusual situations where the safety of the complainant is at risk. Unless there is disclosure, it is virtually impossible for the accused to defend himself. The complainant should be advised that her identity will be disclosed. Everyone inter-viewed during the course of an investigation should be admonished that the interview and investigation must be kept confidential.
What form should the investigation take?
Any investigation must start with a thorough interview of the complainant. Not only should the investigators make specific inquiries into the alleged harassment, the complainant should also be asked to identify her prior working and/or social relationship with the alleged harasser. The investigators should also ask the complainant to identify any witnesses who may be able to corroborate the allegations and whether there is any relevant documentation. Similarly, the alleged harasser should be asked the same types of questions. He should also be given the opportunity to identify any witnesses to the events.
The investigators should interview each of the witnesses identified by both the complainant and harasser. These witnesses should be specifically reminded that the content of the investigation is confidential and that should they breach this confidentiality they may be subject to discipline.
If there are documents -- -e.g. notes -- the investigators should gather and review them.
It is also important that the investigation be conducted as soon as possible after the internal complaint has been received. The courts require that both the investigation and remediation take place promptly.
What should you do if the alleged harasser refuses to cooperate?
Occasionally, the alleged harasser refuses to cooperate with the investigators except to deny the allegations generally. If this should occur, the investigation should continue with a recognition that there has been a general denial. However, the investigators are fact finders who must weigh the evidence and credibility of witnesses. A failure to support one's denial with facts may be considered in evaluating the harasser's credibility.
What happens when a complainant wants to withdraw a complaint?
Once a sexual harassment complaint has been made, the employer must investigate the complaint, regardless of whether the complainant persists in her desire to seek redress. In fact, an employer has a duty to act even if a formal complaint is not made but a man-ager becomes aware that harass-ment may be occurring. The courts have placed the onus on the employer to monitor the workplace. Once an employer has been put on notice that there may be a problem, the employer must determine whether harassment has occurred. If the employer ceases its investigation because a complainant with-drew a complaint, the employer would expose itself to future liability if the same person later committed harassment or the complainant pursues a suit.
Should the employer conduct a hearing?
Under present law, a hearing is unnecessary. While the alleged harasser must be given the opportunity to address the allegations against him, he need not, and indeed, should not, be given the opportunity to confront his accuser or question witnesses. He should also be admonished that he must not attempt to intimidate or harangue either the complainant or anyone else during the course of the investigation.
What role should attorneys for the complainant and harasser play in the process?
In the recent past we have been contacted by attorneys for several complainants who want to par-tcipate in the employer's internal investigation. While the courts have not addressed this issue, we would recommend that neither attorneys for complainants nor alleged harassers be permitted to participate in the investigation process except in unusual circumstances and where the attorney is not going to interfere with the investigation. Once the attorneys for the parties get involved, they may attempt to control the process. Their interest is the representation of their individual client rather than resolving the dispute in the manner most helpful to all the parties concerned.
Should the investigators prepare a written report?
We believe that a written report summarizing the allegations, the harasser's response, and the witness interviews should gener-ally be prepared by the investigators. The report also often contains the investigators' conclusion of whether harassment has occurred and a recommendation for discipline but a separate memorandum on these subjects may be wise. A separate document may reduce the chances of a court requiring its production in subsequent litigation even when the investigator's "factual" report is produced.
While a report may limit the future testimony of the investiga-tors, it forces the investigators to be thorough, organize their thoughts, and review the evidence. Drafts of the report should be discarded once the report is finalized.
When the decision-maker is different from the investigator, there are advantages to the investigator just preparing a "factual" report and then meeting with the decision-maker to discuss conclusions and discipline. If the investigator prepares a written recommendation which differs from the ultimate decision, this would create problems in later litigation.
Who makes the decisions?
When the employer's organization is large enough to permit the investigators to be different than the person who makes the ultimate decision on the complaint and discipline, we believe this is the best system. This should not suggest, however, that the investigators should not be consulted. Smaller companies may find it necessary to combine the two functions. When this occurs, someone else should at least review the decision with the investigator/decision-maker before it is implemented to protect against obvious errors or bias.
What should the parties be told?
The complainant and alleged harasser should be told the results of the investigation and of any discipline as well as the general basis for the decision. It is unnecessary and unwise to tell anyone what each of the witnesses said. We would also suggest that any report or documentation generated during the investigation should remain confidential and not be shared with the parties. Finally, the par-ties should be instructed that there is to be no retaliation and that the investigation should remain confidential.
It is also wise for a manager to follow up with the complainant and harasser periodically to make sure no new problems have arisen.
