June 1998

Investigating Sexual Harassment

QUESTION:  

I received a complaint from two employees about sexual harassment from another employee, and I don't think they're making it up.  How sure do I have to be, though, before taking action against the alleged harasser?

ANSWER:

The good news is that according to a recent California Supreme Court decision, an employer's good faith investigation may not be second-guessed by a court or a jury.  The bad news is that not every investigation can meet this good faith standard.

BACKGROUND: 

On January 5, 1998, the California Supreme Court issued an opinion in Cotran v. Rollins Hudig Hall International, Inc. (17 Cal. 4th 93, 69 Cal. Rptr. 2d 900 (1998)), a case involving an individual discharged after an investigation into complaints of sexual harassment.  Overturning an award of $1.78 million to the discharged employee in his suit for wrongful discharge, the Court announced that the critical inquiry is not whether actual harassment occurred, but "whether at the time the decision to terminate his employment was made, [the employer], acting in good faith and following an investigation that was appropriate under the circumstances, had reasonable grounds for believing [that the alleged harasser] had done so."  (17 Cal. 4th at 108-109, emphasis added). 

Thus, while employers are freed of the uncertainty which usually accompanies after-the-fact analysis of its personnel decisions, the Court made very clear that a "good faith" investigation is required to support any termination for cause.  While the exact scope of such an investigation will vary depending on the nature of both the workplace and the allegations involved, several key elements are essential to most every appropriate investigation.

First, select a competent investigator.  Remember that if the adequacy of the investigation is the defense to a subsequent lawsuit, then the chief investigator will be the key defense witness.  Select an individual who can not only gain the confidence of the accused, the accuser(s) and any other witnesses, but who will be able to present a case well before a judge or a jury.  While in many cases, a human resources professional from within the organization is a wise choice, circumstances may call for  a more neutral outside party.

Second, collect all the facts.  First, interview the complaining employee and try to determine exactly what the alleged conduct entailed, including the names of potential additional witnesses.  Next, the accused should be questioned about each of the accusations.  Finally, after interviewing all additional witnesses (including those identified by the accused) the investigator

should revisit both the accused and the complaining employee.  The accused should be allowed to respond to the evidence which the investigator has gathered, while the complaining employee will want to ensure that all accusations were addressed. 

Third, make certain that the investigation is appropriately documented.  Factual records should be made of each witness interview.  In the tradition of Joe Friday, these records should include, "just the facts."  Unnecessary sarcasm or commentary-or even legal analysis-should be omitted.  Furthermore, these factual records should be produced as soon as the information is gathered, while memories are still fresh.

Fourth, present the findings in a logical, professional manner.  A careless report will taint even the most scrupulous investigation. 

> Introduce the report, including the purpose and scope of the investigation; 

> List those witnesses who were interviewed and explain if other key individuals were not interviewed;

> Provide a factual chronology, setting forth facts in a detailed, non-judgmental manner;

> Summarize the factual findings, stating whether the factual allegations are supported by the facts. Avoid stating legal opinions (i.e., state "The facts seem to support the allegation that Ricky sent sexually suggestive email messages to Lucy on at least three occasions", not "Ricky sexually harassed Lucy by sending sexually suggestive email messages on at least three occasions").  Again, "just the facts;"  and lastly,

> Identify any special considerations (including mitigating factors) which the investigation may have uncovered which should be taken into account in determining the appropriate action to be taken.

 

In sum, be conscientious about the investigation.  Do not rush to judgment.  Do not close the investigation without interviewing appropriate witnesses and certainly not without providing the accused an opportunity to respond to the allegations against him.  Especially in the public employment context, due process rights are substantial, and the Cotran decision does not provide a mechanism to "sanitize" a poorly managed investigation.

Finally, be aware of the rights of all parties involved: accuser, accused and all witnesses.  Employees do not lose their right to privacy simply by virtue of an accusation against them or because they witness misconduct.  Every effort should be taken to prevent unnecessary disclosure of sensitive information.  On a similar note, do not promise total confidentiality to witnesses; instead, assure them that the information will only be disclosed on a need-to-know basis.  Then, live up to that pledge, or your district could face a whole new set of legal problems.

The CSRMA Employment Hotline provides free legal advise to all CSRMA members on various employment issues.  For more information on the hotline please call Lynn Lieber with Fisher & Phillips at (650)592-6160.