Employer's Guide to Investigating Harassment Complaints

@Victoria
L.H
erring,www.H
erringLaw.com
RESPONDING TO ALLEGATIONS
OF SEXUAL OR RACIAL
HARASSMENT
An Employer’s Initial Response: Conducting Effective
Investigations of Harassment Complaints
Victoria L. Herring
July 20, 2005 Des Moines, Iowa
page 1 @Victoria L. Herring, www.herringlaw.com created 2005

@Victoria
L.H
erring,www.H
erringLaw.com
How an Employer
Can Obey the law of Harassment
Protect itself from Litigation or
Minimize the effects of Litigation
picture: United States Supreme Court

@Victoria
L.H
erring,www.H
erringLaw.com
The Affirmative
Defense
An afﬁrmative defense can serve to protect a
defendant from being held liable, e.g.
Statute of Limitations
Prior settlement agreement or dismissal

@Victoria
L.H
erring,www.H
erringLaw.com
Harassment Law
The Afﬁrmative Defense is especially Powerful
in Harassment cases
Burlington Industries v. Ellerth, 524 U.S. 742
(1998) and Faragher v. City of Boca Raton, 524
U.S. 775 (1998): employers have an
afﬁrmative defense to protect them from
liability for claims of hostile environment
harassment committed by their supervisory
employees or others.

@Victoria
L.H
erring,www.H
erringLaw.com
Ellerth & Faragher
This defense requires the employer to prove
two necessary elements:
The employer exercised reasonable care to
prevent and correct promptly any sexually
harassing behavior, and
the plaintiff employee unreasonably failed
to take advantage of any preventive or
corrective opportunities provided by the
employer or to avoid harm otherwise.

@Victoria
L.H
erring,www.H
erringLaw.com
Iowa Court’s View
“Under the test adopted by our court in
Lynch, an employer is liable for hostile
environment harassment only if it knew or
should have known of the alleged harassment
and failed to take prompt remedial action.”
Vaughn v. Ag Processing, Inc., 459 N.W.2d 627, 634 (Iowa
1990) citing Lynch v. City of Des Moines, 454 N.W.2d 827 (Iowa
1990)

@Victoria
L.H
erring,www.H
erringLaw.com
The Burden is the
Employer’s
In both federal and Iowa court systems, a
burden is placed on the employer to
demonstrate its good faith efforts to prevent
and remedy harassment and doing so
effectively will inoculate the employer against
claims of harassment in the work
environment.

@Victoria
L.H
erring,www.H
erringLaw.com
Helpful Resources
EEOC Enforcement Guidance:
“Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by
Supervisors”, EEOC Enforcement Guidance
(June 1999),
EEOC’s regulations on discrimination
because of sex. 29 C.F.R. § 1604.11 (“sexual
harassment”).

@Victoria
L.H
erring,www.H
erringLaw.com
EEOC has also issued a “Policy Guidance on
Current Issues of Sexual Harassment” (N.o.
N-915-050, issued 3/19/90), also available at
the EEOC website.

@Victoria
L.H
erring,www.H
erringLaw.com
Although EEOC documents and many cases
mainly deal with sexual harassment in the
workplace, there is a long history of racial
harassment as well and other types of
harassment because of a protected class (e.g.,
national origin, religion, disability) have been
proven.
The concepts are the same: behavior which
severely or pervasively affects a person’s
employment terms and conditions based on an
illegal motive.

@Victoria
L.H
erring,www.H
erringLaw.com
Handling Complaints
H. R. Department or responsible person
Policy or Procedures Manual or materials
including statement on Harassment
not limited to sex/gender or race

@Victoria
L.H
erring,www.H
erringLaw.com
Complaint Process
Alternative avenues of reporting: safety
valve
no requirement of formal, written
complaint
Statement on Retaliation
Take complaints seriously and handle
promptly

@Victoria
L.H
erring,www.H
erringLaw.com
During the
Investigation
Reassignment of Complainant and Alleged
Harasser
Paid time off or administrative leave during
investigation
Equal handling of both parties as much as
possible - avoid appearance of penalizing the
person who raised the issue

@Victoria
L.H
erring,www.H
erringLaw.com
The Investigation
Have a process in place
how to ﬁnd a skilled investigator
how to handle the parties
what will the process be
who are those with a ‘need to know’
conﬁdentiality concerns

@Victoria
L.H
erring,www.H
erringLaw.com
Meritor Savings
Bank v. Vinson
U. S. Supreme Court requires “prompt” and
effective actions to be taken to address
harassment complaints
rule of law reﬂected in the ‘rule of the jury’,
its expectations of employer’s reaction
popular culture has educated juries as
much as the law has

@Victoria
L.H
erring,www.H
erringLaw.com
Having Policies
Important to have in place
Important to follow, fairly and evenly:
employees will see or look for unfairness
Dissemination of policies and training about
those policies
Evaluations based on following policies

@Victoria
L.H
erring,www.H
erringLaw.com
Obvious commitment of Employer to its
policies
Easier to prevent complaints (of harassment
or other impropriety) by having effective and
adhered to policies
Train regularly, up and down ‘chain of
command’ on policies
Effective policy can prevent the problem
from occurring, prevent ﬁling of complaints
or provide the afﬁrmative defense.

@Victoria
L.H
erring,www.H
erringLaw.com
BOTH LARGE AND
SMALL BUSINESSES
Distinction between handling by large
corporation with many resources
hotlines
established investigatory teams
paid leave for all concerned

@Victoria
L.H
erring,www.H
erringLaw.com
and smaller business with fewer resources
clear policy
‘open door policy’
regular meetings, camaderie
hired investigator: lawyer, HR
professional

@Victoria
L.H
erring,www.H
erringLaw.com
What is the Process which should be
followed? What objectives?
what are the relevant company policies
what are the relevant laws or regulations
who should investigate
who should be involved in the investiga-
tion and itnerviews?
PLANNING THE
INVESTIGATION

@Victoria
L.H
erring,www.H
erringLaw.com
The Plan for the
Investigation
Employer should have clear plan or process
to follow in handling investigation
Might be part of its policy and disseminated
or an internal policy or ad hoc

@Victoria
L.H
erring,www.H
erringLaw.com
Who should investigate
lawyer or professional
demonstrates employer’s commitment to its
policy
sensitive to obtaining and handling private
and troubling information
Old Capitol pillars
Washington D.C.

@Victoria
L.H
erring,www.H
erringLaw.com
Who should Investigate the Complaint:
external investigator versus internal
manager or employee?
someone with conﬁdence of employer
someone with or capable of developing
conﬁdence of complainant, alleged
harasser, other employees
someone provided ample resources

@Victoria
L.H
erring,www.H
erringLaw.com
Who should be interviewed, and in what
order
What questions should be asked
Should the interviews be taped??
Are there any documents, tapes, or other
materials to get?
How prompt can the investigation be and
still be meaningful?

@Victoria
L.H
erring,www.H
erringLaw.com
How should the Investigator investigate:
notations or recording
standard questions or checklists
supplemented by inquisitiveness and
common sense
who, what, when, where, why, how = open
ended, solicit informative answers
sensitivity to nature of information

@Victoria
L.H
erring,www.H
erringLaw.com
Caution: either the complainant or the
alleged harasser may be protected by other
laws, e.g., collective bargaining agreement or
regulations, and adjustments may be needed
in how the interviews and investigation will
be conducted

@Victoria
L.H
erring,www.H
erringLaw.com
Need reasonable and prompt handling of
complaints and remedial measures
what amount of time between notice of the
complaint and commencement of
investigation?
Sims. v Health Midwest Physician Services Corp., 196 F.3d 915 (8th Cir.
1999)[prompt response is first requirement of affirmative defense].
Factors Supporting
the Affirmative
Defense

@Victoria
L.H
erring,www.H
erringLaw.com
How long did the investigation take, and
why?
Investigation should be thorough: interviews
of complainant, alleged harasser, anyone who
may know about the behavior, gathering of
documents, emails etc.
possibly re-interview parties after entire
factual context established, tie up loose ends

@Victoria
L.H
erring,www.H
erringLaw.com
What else could the Employer have done?
to prevent the harassment from occurring
in handling the complaint
in remedying the harassment

@Victoria
L.H
erring,www.H
erringLaw.com
Will the Remedial Action be sufﬁcient?
If “not harassment”, should something still be
done?
If harassment is found, what actions should
be taken?
Should a formal written report be made?
Results of
Investigation

@Victoria
L.H
erring,www.H
erringLaw.com
Employer actions after investigation should
afﬁrm to the employees:
making a complaint is acceptable and,
even, desireable
allegations of harassment are taken
seriously, even if not rising to level of illegal
activity
employer will be proactive when possible

@Victoria
L.H
erring,www.H
erringLaw.com
What is appropriate employer action?
What does policy provide?
What will send a message?
What might prevent re-occurrence or
occurence of harassing events?

@Victoria
L.H
erring,www.H
erringLaw.com
Employee training or retraining
Evaluations and personnel ﬁle notations
written warnings or other forms of discipline
transfers, demotions, terminations
What steps should
the Employer Take?

@Victoria
L.H
erring,www.H
erringLaw.com
The Goal:
Prevention
Remedial Action

@Victoria
L.H
erring,www.H
erringLaw.com
The Goal
Attained
through
planning and
prevention
T h a n k y o u
V i c t o r i a L . H e r r i n gpage 35 @Victoria L. Herring, www.herringlaw.com created 2005

@Victoria
L.H
erring,www.H
erringLaw.com

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