# Presentation: 140470

## Sexual Harassment:

- A Guide to Working a Complex and Sensitive Investigation

- _Cornell Dillard_
**Chief Human Relations Officer**

## Training Objective

- Know the Law
- Investigative Techniques
- Importance of Confidentiality
- Importance of Case Closure

## The Law

- Federal Statutes

- The 1964 Civil Rights Act

- Title VII

- Such as:

## Title VII does not explicitly prohibit sexual harassment, but the U.S. Supreme Court has made clear that it is a form of unlawful sex discrimination in violation of the Civil Rights Act.

**The Law**

## The Law

- State Statutes

- State Human Rights Acts

- Such as:

## Some sexual harassment may violate state fair employment practices laws, and it may serve as a basis for a tort claim.

**The Law**

## 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.

- 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.

**The Law**

## Some state and local jurisdictions prohibit discrimination based on sexual orientation.
For example, the Sexual Orientation Non-Discrimination Act of New York State prohibits discrimination on the basis of actual or perceived sexual orientation (heterosexuality, homosexuality, bisexuality, asexuality) in employment, housing, public accommodations, education, credit, and the exercise of civil rights.

- For example, the Sexual Orientation Non-Discrimination Act of New York State prohibits discrimination on the basis of actual or perceived sexual orientation (heterosexuality, homosexuality, bisexuality, asexuality) in employment, housing, public accommodations, education, credit, and the exercise of civil rights.

**The Law**

## Municipal Codes/Ordinances

**The Law**

- City rules
- County codes

- Such as:

## The Law

- Employment Policy Manual

- Department’s Policies/Rules

- Employee’s Handbook

- Union/Employment Contract

- Such as:

## Investigative Techniques

- Learn all the facts!

- Identify the Principals
- Complainant or Harassee
- The Accused or Harasser
- Witnesses
-  identified by the Complainant
-  identified by the Accused
- The Supervisor or Manager

## 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

- 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

**Investigative Techniques**

- Avoid ‘office sweeping’ interviews!

## Listen to everything!
Avoid interrupting the interviewee
Write down your questions beforehand
Try to maintain eye contact with interviewee as much as possible
Avoid nodding and making emotional facial expressions
Resist the ‘mmhmm’ and ‘humph’

- Avoid interrupting the interviewee
- Write down your questions beforehand
- Try to maintain eye contact with interviewee as much as possible
- Avoid nodding and making emotional facial expressions
- Resist the ‘mmhmm’ and ‘humph’

**Investigative Techniques**

## Investigative Techniques

- Ask questions!
- Repeat the question in a different way later in the interview
- Look for inconsistency
- 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

## PRIVACY
DEFAMATION
QUALIFIED PRIVILEGE

- DEFAMATION
- QUALIFIED PRIVILEGE

**Confidentiality**

## Confidentiality

- _PRIVACY_

- When reviewing the legality of investigations, 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.

## Under the common law, there are three types of privacy rights that are directly relevant to investigations:

**Confidentiality**

## 1.  Public disclosure of private facts(informational privacy)

- The right to privacy includes the right to keep certain *personal information* from public knowledge.  Informational privacy prohibits employers from disclosing information that would be offensive to a reasonable person and not of any legitimate concern to the public.

- Confidentiality

## If an investigation publicizes information about an individual’s private affairs, such as having AIDS or being HIV-positive, the individual may sue for an invasion of privacy.

- Confidentiality

## If an investigating employer assigns false attributes or associations to the targeted employee, and these false attributes are broadcasted to a large number of people, there may be recovery for invasion of privacy.

- 2. Placing in a false light(false light privacy)

- Confidentiality

## Wrongly labeling someone a racist or a child molester may be enough to create liability for false light privacy, even if there is no injury to the employee’s reputation.

- Confidentiality

## The right to privacy protects employees’ physical and psychological “space.”  Basically, unless there is a legitimate business purpose, employees have a right to be left alone.  Accordingly, any intrusion of an employees’ physical environment or psychological liberty could be a common law invasion of privacy.

- 3. Intrusion into another’s seclusion(autonomy privacy)

- Confidentiality

## No Federal laws offer protection against discrimination of smokers, but several states have passed laws prohibiting employers from refusing to hire smokers.
Also, employees cannot be prevented from smoking when off-duty or on break.
But, states and municipalities may regulate smoking in public areas.

- Also, employees cannot be prevented from smoking when off-duty or on break.
- But, states and municipalities may regulate smoking in public areas.

- Example:

## DEFAMATION of CHARACTER

**Confidentiality**

- During an investigation, damaging and perhaps false information may be obtained.  Anyone who divulges information gained in an investigation to others, including co-workers, office staff and personal friends, risks liability for defamation of character.

## Defamation typically means:

- A false oral or written statement;

- Communicated to a third party;

- That injures an individual’s reputation by exposing the person to hatred, contempt, or ridicule, or by causing the person to be shunned or avoided; and
- That is unprivileged.

- Confidentiality

## An employer has a qualified privilege to divulge even defamatory information to persons who have a demonstrated “need to know” the information.

- Qualified Privilege

- The person in charge of the investigation
- Disciplinary Committee
- Appointed authority (Director/Deputy Director/Division Directors)
- Legal Unit

- Example:

## The privilege does not apply to defamatory information that is disclosed in bad faith or that lacks credibility.

- Qualified Privilege

## Case Closure

- Courts often look to the thoroughness of an investigation when deciding the extent of an employer’s liability.

## Claim led to a $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.
Booker v. Budget Rent-A-Car Systems, 17 F. Supp. 2d 735 (M.D. Tenn. 1988).

- 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.
- Booker v. Budget Rent-A-Car Systems, 17 F. Supp. 2d 735 (M.D. Tenn. 1988).

- Case Closure

## Take it Seriously!
Avoid the risk of treating every complaint as routine and simply a dress rehearsal

- Avoid the risk of treating every complaint as routine and simply a dress rehearsal

**Case Closure**

- Promptly Investigate!
- If you have several pending cases, simply notify the complainant that you received the complaint and that he or she will be contacted in the near future.
- Do follow-ups to remind the complainants that their cases are important and that the case is still active.

## Create Written Record(s)
Always document your conversation.  Everything should be ‘on the record.’
This is especially true when conducting telephone interviews

- Always document your conversation.  Everything should be ‘on the record.’
- This is especially true when conducting telephone interviews

**Case Closure**

- Cite laws/statutes/policies in your report
- This allow reviewers (courts/executives/independent investigators) to know if laws have been broken and/or rules violated.

## Include anti-retaliation communication
Inform complainants to follow up with you if they sense retaliation.
Actively remind the subject of the complaint that any conduct of a retaliatory nature toward the complainant is strictly prohibited.

- Inform complainants to follow up with you if they sense retaliation.
- Actively remind the subject of the complaint that any conduct of a retaliatory nature toward the complainant is strictly prohibited.

**Case Closure**

## Conclusion

- BE SENSITIVE yet IMPARTIAL
- AVOID APPEARANCE OF BEING A RUBBER STAMP FOR MANAGEMENT
- BE INFORMED
- Know the statutes/policies/codes
- Review the organizational chart of principal parties
- BE RESPECTFUL
- ASK THE RIGHT QUESTIONS

## Be Professional!
Avoid
T.V Detective
Super Detective

- Avoid
- T.V Detective
- Super Detective

**Conclusion**

## Electronic Discovery Rules

- Effective December 1, 2006.
- Requires parties in federal litigation to preserve electronic evidence.
- Requires parties to produce electronically stored information that is “ordinarily maintained or reasonably usable.”
- Failure to preserve and produce electronic discovery might result in sanctions and/or adverse inference instructions at trial.

## Point of Interest

- Baldwin v. Blue Cross/Blue Shield of Alabama (11th Cir. March 19, 2007).
- Employee second-guessed adequacy of employer’s investigation into her complaint of harassment.

- Conclusion

## HELD:  Employer is 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 and the 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.”

- Point of Interest

- Conclusion

## What would the Court say about your investigation?

- Conclusion

## QUESTIONS?

- Cornell Dillard
- Chief Human Relations Officer
- _[Cornell.dillard@dolir.mo.gov](mailto:Cornell.dillard@dolir.mo.gov)_
- Missouri Department of Labor and Industrial Relations
- 573-751-1339