By Kenneth J. Rose and Robert H. Rose, TRG WORKPLACE INVESTIGATIONS a division of The Rose Group, APLC.
Since the revelations about Harvey Weinstein in October, the news cycle has been filled with one celebrity after another facing accusations of sexual harassment. Harvey Weinstein may actually have caused more people to talk about sexual harassment in the workplace than Anita Hill did during the Senate hearings on Clarence Thomas’ nomination to the United States Supreme Court in 1991.
The sheer number of new accusers, accusations of sexual harassment, and accused has been staggering, with Hollywood and Washington D.C. coming particularly under fire for what has been described as a culture of powerful individuals taking advantage of those in their control. Along the way, public trust in these institutions has eroded, and many lives and careers have been irreparably damaged.
It should come as no great shock that Time magazine named “Silence Breakers” as its 2017 “Person of the Year”.
But while the famous and infamous have grabbed most of the headlines to date, accusations of sexual harassment extend far beyond the walls of Congress and the movie studios. These situations can arise in any workplace, big or small. No prudent employer can ignore these warning signs.
Our hometown newspaper, the San Diego Union-Tribune, in its Sunday December 10, 2017 edition, had no less than four headlines indicating that public perception of sexual harassment is at an all time high.
“What You Need to Know About Reporting Sexual Harassment: Local Attorneys, Experts Who Know About Breaking Silences Offer Answers”
“Beyond #Metoo: What You Need to Know About Reporting Sexual Assault, Harassment.”
“Could Racketeering Law Be Used in Weinstein Case?”
“Anita Hill Makes Push for Lasting Change.”
It is only a matter of time when we start seeing more allegations of sexual harassment against employers and their managers in traditional industries. This is no longer a concern that should be primarily delegated to Human Resources. In Corporate America, Boards of Directors and Executive Management are asking: What should OUR company do when presented with an allegation of sexual harassment?
For employers who learn of sexual harassment allegations, being proactive and getting ahead of the issue is crucial. Impartial investigations must be undertaken immediately.
Employers should investigate all reports and complaints of sexual harassment no matter what the employer thinks of the merits of the complaint. Besides the obvious strategic value in having investigations as a risk management tool, employers are required by law to promptly investigate all complaints of sexual harassment in the workplace.
The Equal Employment Opportunity Commission’s (“EEOC”) “Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors,” states that “An employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment.”
Many State anti-discrimination laws have similar dictates. In California, the California Fair Employment and Housing Act (“FEHA”) requires employers to take “all reasonable steps necessary to prevent discrimination and harassment from occurring.” CA Gov. Code section 12940(k). The FEHA further makes it unlawful for an employer who “knows or should have known of this conduct and fails to take immediate and appropriate corrective action.” CA Gov. Code section 12940(j). This duty to prevent harassment and to take corrective action for any harassment an employer should have known about has been interpreted by courts as an employer’s duty to thoroughly investigate complaints of sexual harassment. See, e.g., Holly D. v California Inst. of Technol. (9th Cir 2003) 339 F3d 1158, 1177. The failure to do so can open an employer to additional liability for “failure to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”
Whether the accusations which effect your workplace are litigated in the court of public opinion or in the State and Federal Courts or private arbitration, having a full view of the situation before it gets out of control makes all the difference. Undertaking an immediate thorough investigation of complaints (or even rumors) of sexual harassment ensures that before the accusations evolve into a challenging lawsuit, the employer already knows the full extent of the accusations, and the witnesses and evidence which support or refute them—and thus is prepared to appropriately respond and proactively manage the situation.
Conversely, should an employer react slowly or fail to thoroughly to investigate a complaint or fail to investigate at all– in addition to the reputational damage such accusations can cause– the costs of defending, and potentially paying substantial damages, in a lawsuit for sexual harassment can be overwhelming. Once an accusation of sexual harassment has become a court complaint of sexual harassment, the litigation discovery process –to uncover the “the good, the bad, and the ugly” evidence which would have been revealed by a timely through independent investigation–could cost tens, even hundreds, of thousands of dollars, and take a year or more to complete.
About who should do the investigation of employee sexual harassment complaints, the previously mentioned EEOC Enforcement Guidance” advises:
“The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.”
Given the seriousness of accusations of sexual harassment, employers should take particular care to see that there is little question as to the investigation’s completeness and fairness. Hiring an experienced outside investigator to undertake the investigation is one such way of ensuring a thorough investigation takes place that is fair to both the complainant and the accused. Using external objective and unbiased resources is critical to protect the employer and the individuals involved. Without an impartial investigation respectful of all parties, future investigations will be hampered, fewer victims will report issues and witnesses and offenders will be less likely to cooperate. Having an efficient and respectful process will demonstrate the employer’s commitment to all stakeholders.
An experienced outside investigator will be able to determine the necessary depth of an investigation based on the allegations the employer’s policies, and the applicable State and federal laws implicated. Through confidential interviews of witnesses and review of relevant documents, an experienced investigator will be able to provide findings which will enable an employer to take steps—oftentimes before a lawsuit has been filed– to prevent further harassment or to counter false accusations. If an investigation reveals that sexual harassment has occurred, and the alleged harasser is terminated as a result, the existence of a thorough and fair investigation provides a strong defense to a wrongful termination claim. Cotran v Rollins Hudig Hall Int’l, Inc. (1998) 17 C4th 93; Silva v Lucky Stores, Inc. (1998) 65 CA4th 256. Conversely, an investigation that is not thorough and fair, and which exonerates the accused, may be used by the complainant as evidence of unlawful retaliation for the protected activity of making complaints of harassment to the employer.
The Weinstein moment has had the effect of making everyone pay closer attention to the issue of sexual harassment in the workplace. Accusers may now be more likely to come forward, and the public is ready to pounce on any hint that such conduct has not been adequately investigated and dealt with. Although nothing can fully insulate against employees making legitimate or illegitimate complaints, immediately bringing in an experienced outside investigator to review accusations of sexual harassment is not only the right thing to do, it also gives employers the best chance of protecting themselves from potential liability and reputational harm.