7. Hot-Button Issues: Sexual Harassment and Workplace Violence

Sexual Harassment: Introduction

Sexual harassment became a legitimate theory of discrimination when the Supreme Court ruled in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) that sexual harassment is a violation of Title VII of the 1964 Civil Rights Act.

It has developed into a complex and broad area of law costing U.S. businesses approximately $50 million per year in settled payouts, according to statistics from the Equal Opportunity Employment Commission (EEOC).

A common misconception is that innocent flirtation, horseplay, and other forms of social interaction are actionable sexual harassment if the victim does not like the harasser’s words or actions. Also incorrect is the belief that isolated incidents of inappropriate conduct are enough to constitute sexual harassment—for example, a single sexually oriented remark, although offensive, probably isn’t enough, unless really serious, to be sexual harassment. In reality, as stated in the Supreme Court case of Oncale v.

Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), Title VII is not a ‘‘general civility code.’’

Basically, for words or actions to constitute sexual harassment, the victim must suffer some tangible employment action—for example, demotion, termination, or loss of pay—or they must be severe or pervasive enough to permeate the workplace and actually affect the victim’s terms of employment—that is, unreasonably interfere with his or her working environment.

Sexual harassment is not limited to men-women or women-men situations. The Oncale case stands for the proposition that there can be same- sex sexual harassment, and that same-sex sexual harassment can exist without any of the parties involved being homosexual. All that the victim must prove is that the unwelcome conduct was based on the sex of the victim and disadvantaged him or her because of gender.

EXAMPLE: In a work environment, if a man and a woman are continually flirting with one another, sexually touching each other, and otherwise engaging in conduct of a sexual nature in close physical proximity to the victim, and if their actions are severe and pervasive enough to interfere with the victim’s ability to do his or her job, then (1) the conduct is unwelcome, (2) it is based on sex, and (3) it has the purpose or effect of unreasonably interfering with the victim’s ability to do his or her job. That’s sexual harassment.

Unlawful harassment is not limited to sex but can also involve discriminatory treatment on the basis of race, color, religion, national origin, age 40 or older, disability, or protected class under other antidiscrimination statutes.

Sexual Harassment Defined

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when this conduct explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment.

There are two basic types of sexual harassment: quid pro quo and hostile environment. The lines between these two have blurred in recent years with the key issues now being (1) whether or not the victim suffered a significant change in working conditions, such as a tangible job action, or (2) whether the working environment is hostile, intimidating, or offensive because of sexual harassment even if the alleged victim has not suffered any job loss.

Quid Pro Quo (‘‘This for That’’ or ‘‘Something for Something’’) Sexual Harassment

The most obvious form of sexual harassment is where a supervisor requires some sort of sexual trade-off from an employee as a condition for job benefits. In other words,

Submission to such conduct is a term or condition of employment.
Submission to or rejection of such conduct is a basis for employment decisions affecting the worker.

EXAMPLE: If a supervisor discussed the employee’s performance review shortly before requesting that the worker perform oral sex on the manager, the close proximity in time between these two discussions would lead a reasonable person to believe a quid pro quo has been offered—that is, if the victim submits, he or she will gain a benefit or if he or she does not, he or she will suffer a job detriment.

Supervisor Status and Quid Pro Quo

Quid pro quo harassment requires that the harasser be a supervisor or other person in the organization who has the authority to (1) direct the employee’s daily work activities, or (2) undertake or recommend tangible employment decisions affecting the employee. In other words, the individual is in a position to give or deny a benefit, or otherwise change working conditions such as hiring, firing, demotions, promotions, working hours, working conditions, and training opportunities.

The harasser does not have to have the final say over employment decisions. As long as the individual’s recommendation is given substantial weight by the final decision maker(s), that individual meets the definition of supervisor.

Temporary Supervisory Status

An individual who is temporarily authorized to direct another employee’s daily work activities does qualify as a supervisor during that time period.

However, someone who merely relays other officials’ instructions regarding work assignments and reports back to those officials does not have true supervisory authority.

Harasser Outside Supervisory Chain of Command

Someone can also be a supervisor even if he or she is outside of the victim’s chain of command if the alleged victim reasonably believed the alleged harasser had authority to undertake or recommend tangible employment decisions affecting the employee.

Tangible Job Action—Vicarious Liability

In the highly significant cases of Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court made clear that if a supervisor engages in quid pro quo sexual harassment and it results in a tangible job action for or against the victim, the employer is strictly liable and has no legal defense.

Prior to Ellerth and Faragher, sexual harassment complaints were analyzed as quid pro quo or hostile work environment cases. These decisions hold that these legal theories remain valid; however, courts will no longer focus on the technical distinction between hostile environment and quid pro quo allegations. Now a distinction will be drawn between cases where:

Any tangible job action is taken against the plaintiff-victim by the offending supervisor.
No tangible job action is taken (e.g., the plaintiff-victim either remains employed or quits).

Where a harassing supervisor takes a tangible job action, the employer is strictly liable. Where no tangible job action is taken, the employer remains vicariously liable for the supervisor’s sexual harassment but may assert an affirmative defense relating to its efforts to prevent the harassment from occurring.

The employer’s vicarious liability is appropriate because supervisors are aided in their misconduct by the authority the employer delegated to them. Basically, the standard of liability set forth in these decisions is based on two principles: (1) an employer is responsible for the acts of its supervisors, and (2) employers should be encouraged to prevent harassment and employees should be encouraged to avoid or limit the harm from harassment.

Although the Faragher and Ellerth decisions dealt with sexual harassment, the Court’s analysis drew on standards set forth in cases involving harassment on other protected bases, and the EEOC has always taken the position that the same basic standards apply to all types of prohibited harassment, such as race, religion, age, national origin, or physical disability. Because of this vicarious liability standard, employers should establish antiharassment policies and complaint procedures covering all forms of unlawful harassment.

Examples of Tangible Job Actions An employment action qualifies as tangible if it results in a significant change in employment status. Unfulfilled threats are not enough.

According to the EEOC, characteristics of a tangible employment action are:

A tangible employment action is the means by which the supervisor brings the official power of the enterprise to bear on subordinates, as demonstrated by the following:
It requires an official act of the enterprise.
It usually is documented in official company records.
It may be subject to review by higher-level supervisors.
It often requires the formal approval of the enterprise and use of its internal processes.
A tangible employment action usually inflicts direct economic harm.
A tangible employment action, in most instances, can be caused only by a supervisor or other person acting with the authority of the company.

Examples of tangible employment actions include the following:

Hiring and firing
Promotion and failure to promote
Demotion
Undesirable reassignment
Decision causing a significant change in benefits
Compensation decisions
Work assignment

An instructive case as to the nature of what constitutes a tangible job action is Jin v. Metropolitan Life Ins. Co., 295 F.3d 335 (2nd Circuit, June 27, 2002). In Jin, a supervisor forced the victim to perform sexual acts each week to keep her job. The court ruled that a plaintiff who is forced to submit to sexual acts to keep her job has been subjected to a tangible employment action. A plaintiff who has paychecks withheld or has a paycheck delayed—for example, temporarily withheld—has suffered a tangible employment action. It also ruled that a lower court erred when it instructed a jury that a Title VII plaintiff alleging sexual harassment must be subjected to a ‘‘tangible adverse action.’’ Some sexual harassment victims receive ‘‘benefits.’’ For example, in this case the defendant argued that the victim received the benefit of keeping her job in return for submitting to sexual acts. (Notice that this reasoning is consistent with that part of the definition of sexual harassment that reads, ‘‘Submission to or rejection of such conduct is a basis for employment decisions affecting the worker.’’)

No Tangible Job Action—Hostile Environment

When a supervisor engages in sexual harassment that does not result in a tangible job action, the sexual harassment is deemed to be hostile environment harassment no different from that perpetrated by anyone else, such as a coworker or someone external to the organization.

If it is hostile environment harassment, the employer can raise an affirmative defense (the Ellerth/Faragher Defense) to liability or damages. (See ‘‘The Ellerth/Faragher Defense’’ in this chapter.)

Hostile Environment Sexual Harassment

Hostile environment sexual harassment occurs when the plaintiff can show that the work environment is hostile, intimidating, or offensive due to sexual harassment, even when no tangible job loss occurs because of the harassment. Basically, the harasser’s conduct must have the purpose or effect of unreasonably interfering with the plaintiff’s ability to do his or her job.

For the harasser’s words or actions to rise to the level of actually being actionable, they must be sufficiently severe or pervasive to alter the victim’s conditions of employment and to create an abusive working environment. The burden of proof is heavier in hostile environment lawsuits than in quid pro quo cases. For example, in a quid pro quo case a single incident could be enough; however, in hostile environment situations, it generally takes the plaintiff showing that his or her injury resulted from multiple incidents, comments, or conduct that occurred with some frequency.

In deciding whether or not an environment is hostile or abusive, all of the circumstances must be considered. Some of the criteria the courts have used include:

Totality of the physical environment of the plaintiff’s work area
Lexicon (vocabulary) of obscenity that pervaded the environment both before and after the plaintiff’s introduction into it
Reasonable expectation of the plaintiff on entering the environment
Nature of the unwelcome sexual acts or words
Frequency of the offensive encounters (e.g., a small number of isolated incidents will not support a hostile environment claim)
Total number of days over which the offensive meetings occurred
Context in which the sexual harassment occurred
Whether the conduct unreasonably interferes with an employee’s work performance

Conduct Must Be Unwelcome

The EEOC and the Supreme Court have said that a key part of a sexual harassment claim is that the alleged sexual advances were unwelcome. For example, if everyone in a working environment continually uses foul and vulgar language and no one cares, then no one cares and it’s not a hostile environment.

Sexual attraction often plays a role in the day-to-day social exchange between employees. In its various Guidances relating to sexual harassment, the EEOC has acknowledged that it is sometimes difficult to make a distinction among invited, uninvited-but-welcome, offensive-but-tolerated, and flatly rejected sexual advances. However, because sexual conduct is only unlawful when it is unwelcome, the distinction is essential. The Eleventh Circuit federal court provided a general definition of unwelcome conduct in Henson v. City of Dundee, 682 F.2d at 903: The challenged conduct must be unwelcome ‘‘in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive.’’ Also, the conduct must be unwelcome through the eyes of a reasonable person—not necessarily from the viewpoint of the alleged victim. (See “Reasonable Person Standard.’’)

The employer will often be confronted with conflicting evidence as to welcomeness—for example, the parties may have had a prior consensual relationship. You must evaluate each situation on a case-by-case basis and look at the total circumstances. (See ‘‘The Investigation’’ in this chapter.)

Reasonable Person Standard

For sexual harassment to arise, the action must be unwelcome to a reasonable person under similar circumstances.

The reasonable person concept is a mainstay of U.S. jurisprudence; however, it is a very difficult standard to actually apply. Acknowledging that this test is not and cannot be mathematically precise, the Supreme Court emphasized that whether a work environment is hostile or abusive can be determined only by looking at all the circumstances.

According to the Supreme Court in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), some factors that could be part of the circumstances of the case include the following:

Frequency of the discriminatory conduct
Severity of that conduct
Whether it is physically threatening or humiliating or a mere offensive utterance
Whether it unreasonably interferes with an employee’s work performance

The Ellerth/Faragher Defense

In 1998, when the Supreme Court decided Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998), it set forth an affirmative defense that may be used by an employer to avoid liability for sexual harassment based on a hostile work environment when no adverse employment action has been suffered by the employee.

The defense consists of two necessary elements:

Employer exercised reasonable care to prevent and correct promptly any harassment.
Employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Basically, if the employer can prove that it acted in a reasonable manner and that the employee could have avoided being harmed but unreasonably failed to do so, the employer will avoid liability for unlawful harassment.

As a practical matter, the Ellerth/Faragher Defense means that if the employee doesn’t avail himself or herself of the employer’s internal administrative procedures in a timely manner, the courts will grant the employer a summary judgment against the worker.

Note: Because of the wording of its state Fair Employment Practices Act, California does not recognize the Ellerth/Faragher Defense. However, California follows an avoidable consequences rule. Basically, in California there will not be a summary judgment against the plaintiff; however, the amount of damages will be reduced by the degree to which the harm could have been avoided if the employee had timely followed the employer’s internal remedies.

Employer’s Duty to Exercise Reasonable Care

In order for the employer to position itself to use the Ellerth/Faragher Defense, it must show that it undertook reasonable care to prevent and promptly correct harassment. Generally, the employer must establish, disseminate, and enforce an antiharassment policy and complaint procedure and take other reasonable steps to prevent and correct harassment.

It is clear from the Ellerth case that if an employer does not have a written policy, it will probably not be able to prove that it exercised reasonable care. And, simply having a written policy is not enough. You, the employer, should:

• Provide every employee with a copy of the policy and complaint procedure,

Redistribute the policy and complaint procedure periodically,
Post the policy and complaint procedure in central locations,
Incorporate the policy and complaint procedure into employee handbooks, and
Provide training to all employees to ensure that they understand their rights and responsibilities.

Because of the differences in levels of responsibilities, liabilities, and perspectives between supervisors and general staff, training should be separated into sessions for each respective category.

Simply having a written and widely distributed policy and procedure against sexual harassment (or discrimination generally) does not create a safe harbor—the employer must actually follow and enforce the policy in an effective manner.

Employer’s Discrimination/Harassment Policy

An antiharassment policy and complaint procedure should contain, at a minimum, the following elements.

Clear Explanation of Prohibited Conduct

An employer’s policy should make clear that it will not tolerate harassment by anyone in the workplace—supervisors, coworkers, or nonemployees— based on sex (with or without sexual conduct), race, color, religion, national origin, age, disability, and protected activity—for example, opposition to prohibited discrimination or participation in the statutory complaint process.

Although simply using the EEOC’s definition of sexual harassment, found in the Meritor case and discussed in ‘‘Sexual Harassment Defined’’ in this chapter, and often used in sexual harassment policies, you may wish to expand on what your prohibitions are. For example, you may want to explain that there are four basic types of sexual harassment:

1. Verbal Harassment—Sexually suggestive comments (e.g., about a person’s clothing, body, or sexual activities; sexually provocative compliments about a person’s clothes or the way his or her clothes fit; comments of a sexual nature about weight, body shape, size, or figure; comments or questions about the sensuality of a person or his or her spouse or significant other; repeated unsolicited propositions for dates or sexual intercourse; pseudo-medical advice such as ‘‘You might be feeling bad because you didn’t get enough’’ or ‘‘A little TLC will cure your ailments’’; continuous idle chatter of a sexual nature and graphic sexual descriptions; telephone calls of a sexual nature; derogatory comments or slurs; verbal abuse or threats; sexual jokes; suggestive or insulting sounds such as whistling, wolf calls, or kissing sounds; homophobic insults)

Physical Harassment—Assault, coerced sexual intercourse, attempted rape or rape; sexual gestures such as licking lips or teeth, holding or eating food provocatively, and lewd gestures such as hand or sign language to denote sexual activity; sexual looks such as leering and ogling with suggestive overtones; sexual innuendoes; cornering, impeding or blocking movement, or any physical interference with normal work or movement; touching that is inappropriate in the workplace such as patting, pinching, stroking, or brushing up against the body, mauling, attempted or actual kissing or fondling
Visual Harassment—Showing and distributing derogatory or pornographic posters, cartoons, drawings, books, or magazines; writing or distributing in any manner or medium, including but not limited to e-mail or text messaging, material whose purpose or effect is to create an offensive, intimidating, or hostile working environment
Sexual Favors—Persistent pressure for dates; unwanted sexual advances that condition an employment benefit upon an exchange of sexual favors

Assurance That Employees Who Make Complaints of Harassment or Provide Information Related to Such Complaints Will Be Protected Against Retaliation

In Burlington Northern & Santa Fe (BNSF) Railway Co. v. White, 548 U.S. 53 (2006), the Supreme Court substantially enhanced legal protection against retaliation for employees who complain about discrimination or harassment on the job.

The 9-to-0 decision adopted a broadly worded and employee-friendly definition of the type of retaliation that is prohibited by Title VII of the Civil Rights Act of 1964. Prior to this case, it had been almost impossible to win a retaliation case unless the retaliation resulted in dismissal. In this case, a worker was transferred to a less desirable job after complaining of discrimination.

By contrast, under the standard the justices adopted in the BNSF v. White case, any “materially adverse’’ employment that ‘‘might have dissuaded a reasonable worker’’ from complaining about discrimination will count as prohibited retaliation.

Depending on the context, retaliation might be found in an unfavorable annual evaluation, an unwelcome schedule change, or other action well short of losing a job.

Clearly Described Complaint Process That Provides Accessible Avenues of Complaint

A harassment complaint procedure should be easy for the (alleged) victim to use. Although the procedure should have some step-by-step structure, it should not create any unreasonable obstacles to someone coming forward. Also, it should not be rigid. In other words, if an employee complains to management about alleged harassment, the employer is obligated to investigate the allegation even if it doesn’t conform to a particular format or is not made in writing.

It is important that the procedure provide accessible points of contact for the initial complaint. That is, if a complaining worker must always go to his or her immediate supervisor first about the alleged harassment, then the procedure is not effective (because that supervisor might be the harasser). Your procedure should allow employees to approach any supervisor, who, in turn, is obligated to report the complaint to appropriate officials.

The procedure should allow the worker to bypass his or her chain of command. This privilege would provide additional assurance that the complaint will be handled in an impartial manner.

Your antiharassment policy and complaint procedure should also contain information about the time frames for filing charges of unlawful harassment with the EEOC or state fair employment practice agencies (FEPAs). The statute of limitations for most FEPAs varies from 180 to 365 days. The deadline for filing with the EEOC is 300 days in states that have a FEPA, and 180 days for the few states that do not. Alert employees that the deadline runs from the last date of unlawful harassment.

Note: If an aggrieved worker wants to take advantage of Title VII protections, he or she must exhaust his or her administrative remedies with the EEOC before going to court. Whether or not an aggrieved worker can go straight to state court and bypass his or her state FEPA is a matter of the individual state’s law.

Assurance That the Employer Will Protect the Confidentiality of Harassment Complaints to the Extent Possible

Do not promise total confidentiality! An employer must effectively investigate complaints of discrimination or harassment and cannot do so without revealing at least some relevant information to the alleged harasser or potential witnesses.

Of course, information about the harassment allegation should be shared only with those who need to know about it, and records relating to harassment complaints should be kept confidential on the same basis.

A supervisor who agrees not to reveal any information about a harassment complaint sets the stage for the victim to be revictimized, for others to be harmed by the harasser, and denies the alleged wrongdoer any opportunity to defend himself or herself. In fact, if the supervisor takes no action and the harasser later harms someone else, that knowledge coupled with inaction will almost certainly result in a charge that the organization condones discrimination.

Complaint Process That Provides a Prompt, Thorough, and Impartial Investigation

You, the employer, should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment. See ‘‘The Investigation’’ in this chapter.

Assurance That the Employer Will Take Immediate and Appropriate Corrective Action When It Determines That Harassment Has Occurred

The employer must take action that is “reasonably calculated to end the harassment’’—it doesn’t necessarily actually have to be successful in its efforts. For example, in Austin v. Norfolk Southern Corp., 158 Fed. Appx. 374 (3d Circuit, 2005), the railroad (the ‘‘company’’) undertook an investigation of the complaint, interviewed witnesses, reissued its sexual harassment policy, and took other steps to stop the harasser(s) from putting offensive graffiti around company property. The company was never able to identify the harasser(s) and the harassment periodically reoccurred. The court felt that the company had acted in a reasonable manner and was not liable for the occasional continued acts.

Also, the company’s corrective actions should be proportionate to the harm done. Job death for the harasser may be inappropriate in every situation. Corrective actions could include one or more of the following:

Oral and written warning
Remedial training
Reprimand
Suspension
Transfer
Demotion
Discharge

Do not overreact! An accused who has been severely disciplined based on an incomplete or inconclusive investigation could sue for alleged wrongful termination, slander, or defamation.

The Investigation

Internal investigations, including sexual harassment investigation, should be triggered when the employer learns of possible misconduct by employees involving violations of rules, regulations, or law that, even if proved, will not likely result in criminal prosecution. Don’t rush out and act impulsively; however, launch the investigation as soon as possible. We’ve all heard or read the old saying, ‘‘Justice delayed is justice denied.’’

A complaint is not always the event that triggers a company’s duty to investigate. The duty to investigate doesn’t arise only after a complaint has been made. When an employer observes acts or statements that suggest prohibited activity or even becomes aware of rumors regarding such acts or events, it must take effective action. Recent legal decisions have made certain that employers have an unequivocal duty to investigate promptly and thoroughly as soon as the employer is put on notice of possible wrongdoing.

Privacy matters related to internal investigations in the workplace in general are discussed in Chapter 8, ‘‘Privacy Issues.’’

Choosing Your Investigator

An immediate concern for an employer is what party will undertake the investigation.

Potential candidates include HR personnel, internal security, and nonlawyer third-party investigators. Lawyers, either outside counsel or inhouse counsel, should also be considered.

HR Personnel

Investigating workplace complaints is a common function of an HR department. HR personnel are often perceived as objective and nonthreatening and have generally had experience in investigating a number of different issues within the company. Also, the HR department is usually the most familiar with the organization’s history, policies, and procedures, as well as with its employees.

A feeling among workers that the HR department is too closely linked to management to be impartial and fair could work against using someone from that department. Also, if the alleged harasser is superior to the HR investigator in the investigator’s chain of command—for example, the harasser can take or recommend tangible employment decisions affecting the investigator—the appearance of undue influence will be almost impossible to overcome.

Internal Security

Using in-house security personnel is advantageous because they often have some sort of law enforcement background and therefore possess investigation experience and, generally, exhibit a more assertive investigative demeanor than someone in HR.

Unfortunately, in-house security personnel are often viewed as being intimidating. Their approach may be, or at least could be, viewed as being too aggressive or inquisitorial. And, once again, if the alleged harasser is superior to the investigator in the investigator’s chain of command, the appearance of undue influence will be almost impossible to overcome.

Nonlawyer Third-Party Investigators

The perceived lack of objectivity that using internal staff might bring up is somewhat overcome by using nonlawyer third-party investigators.

Organizations sometimes use former or retired employees to conduct investigations into workplace complaints because of their knowledge of the business and its employees.

Other times, and more commonly when outside resources are used, actual investigators are hired to conduct the investigation because of their knowledge of investigatory methods and techniques.

In the past, a major disadvantage associated with using outside investigators emanated from statutory restrictions on an employer’s ability to anonymously obtain certain information about an employee who was the subject of a complaint. For example, up until 2003, the Fair Credit Reporting Act of 1970 (FCRA) and the Consumer Credit Reporting Act of 1996 precluded companies seeking to use third-party investigators from maintaining anonymity in the investigation of employee complaints.

Those statutes required that notice be given to the employee under investigation, that the employee consent to have his or her credit report disclosed to the investigator, and that the findings of the investigation be disclosed to the employee upon completion of the investigation. This created situations where the alleged wrongdoer could destroy evidence, intimidate witnesses, etc.

The Fair and Accurate Credit Transactions Act of 2003 (the FACT Act), which became effective on March 31, 2004, amended the FCRA. The new law clarified the application of the FCRA to employers’ investigations of employee misconduct. The FACT Act allows an employer to use a third party to conduct any type of workplace investigation without having to comply with the FCRA’s consent and disclosure requirements at the outset of the investigation.

Specifically, the FACT Act excludes certain employer investigations conducted by outside organizations from the FCRA’s definition of consumer report, which was the designation that previously triggered the onerous notification and authorization obligations under the Federal Trade Commission’s view. The law explicitly exempts these investigations from the FCRA if they concern ‘‘suspected misconduct related to employment’’ and likewise exempts investigations concerning “compliance with federal, state, or local laws and regulations’’ and compliance with ‘‘the rules of a self-regulatory organization, or any preexisting written policies of the employer.’’

The new law does not completely eradicate all FCRA-related obligations. Under the FACT Act, an employer that uses an outside organization to investigate allegations of employee misconduct, legal compliance, or other issues, and that later plans to take adverse action against an employee as a result of information received from the investigation, must provide the employee with a summary containing the nature and substance of the report after taking the adverse action. Employers are not required to disclose the sources of the information acquired in preparing the report. This summary need not be provided until after the adverse action takes place.

Attorney Investigators

Ethical and privilege issues arise when lawyers, both in-house and outside, act as internal investigators. Specifically, lawyers should always disclose to witnesses that the company, not the accused employee, is the attorney’s client.

The use of outside counsel brings objectivity to an investigation. This is essential in situations where allegations are too sensitive for an employee-investigator to be objective—for example, when a high-level executive is accused of harassment. A negative is that outside counsel often lacks knowledge of the organization, its culture, and its employees.

There are some real benefits to using in-house counsel as your investigator. He or she has knowledge of employment laws, the company, its corporate culture, and its employees. Furthermore, in-house counsel benefits from the attorney-client privilege. Note, however, the attorney-client privilege will probably be waived, in whole or in part, when an employer asserts the defense that it exercised reasonableness in conducting a prompt and thorough investigation. The in-house counsel would be forced to discuss what he or she did, whom he or she talked to, etc.

Whether in-house or outside counsel, lawyer-investigators can be perceived as intimidating, which could prevent complaining parties and other witnesses from being completely forthright and honest.

There’s no reason that you have to choose only one person to investigate an employee complaint. In fact, if you have the necessary resources, using a team consisting of, for example, an outside attorney and an HR employee is often particularly effective. The team approach also offers the essential element of corroboration should the complaining employee, the accused, or witnesses alter their earlier statements.

Witnesses

Do not simply rush out and start interviewing people. Witnesses are not equal in importance. You may not be ready to talk to a particular witness because you need to talk to another witness first or because you aren’t yet sufficiently prepared to question that particular person. You may want to pay a visit to the scene before talking to a certain witness or to first gather and read documents or examine physical evidence. The point is that there are different types of witnesses and you will want to interview them with a view toward eliciting different types of information or setting the stage for a hearing.

Percipient Witnesses

A percipient witness is someone directly involved in the incident being investigated, an eyewitness to it or who otherwise has direct, firsthand knowledge of the matter.

Percipient witnesses should generally be interviewed first. Often you will need to reinterview them after developing facts or other information from other witnesses and sources.

The most important percipient witnesses in any investigation are: (1) the employees who allege they have been victimized because of race, religion, sex, etc., and the alleged harasser, or those who were injured in an accident; (2) other employees closely associated with the work activity at the time of the incident or accident; and (3) those employees responsible for supervising the work activity at the time of the event(s).

Fact Witnesses

A fact witness is any person who possesses information relating to, or explaining, the circumstances leading up to, and including, the issue in question.

An example of a fact witness might be someone who works in the same department as the parties directly involved in a dispute. The fact witness can testify about the normal working conditions and interactions of the parties in the past, working conditions in that department, and so forth.

Predicate Witnesses

A predicate witness is a person who may have no personal knowledge of the facts of the case but is necessary as a conduit to establish the legal predicate (foundation) for the admissibility of evidence—for example, your organization’s payroll administrator or records clerk.

Character Witnesses

Character witnesses are individuals who have direct knowledge of the past actions of one or more of the parties in given situations or circumstances.

A character witness may be called to testify to an admissible character trait of the accused, another witness, or the complainant.

Expert Witnesses

An expert witness is a person whose education, training, skill, or experience is believed to give them more knowledge than the average person in a particular subject matter, industry, and so forth. That level of knowledge is deemed sufficient that others can legally rely on his or her opinion about evidence or a fact issue within the scope of his or her expertise.

A qualified expert witness, who may have no firsthand knowledge of the alleged crime, is permitted to venture admissible opinion testimony about disputed issues.

Investigatory Procedures

Steps in Questioning Any Witness

Basic steps in interviewing any witness are:

Take detailed notes, as close to verbatim as possible, during each interview.
Sign and date the notes.
Identify the individual being interviewed at the top of a new page for each witness and place the names of those present at the interview and the date, time, and place of the interview.
Pin each witness down to facts: specifically what the witness saw, heard, did, smelled, or felt. Distinguish matters that the witness has personal knowledge of from hearsay.
Interview the witness—don’t let the witness interview you. At the commencement of the interview, state what is being investigated without giving the witness specifics; for example, ‘‘We are investigating an employee complaint of improper conduct,’’ not ‘‘We are investigating whether or not Simon tried to kiss Maya.’’
Explain:
Information obtained during the interview will be reported to those within and possibly outside the company who have a ‘‘need to know’’ of it.
The seriousness of the investigation.

• The importance of accurate information and the individual’s obligation to provide truthful, thorough information.

Caution the witness against discussing your interview or any information the witness obtains during the interview with any other persons.
Ask the witness to list all individuals who may have knowledge of any of the events and identify in as much detail as possible what information the witness believes the individuals possess.
Follow up on answers with appropriate additional questions by developing questions to corroborate or refute information provided by other witnesses or evidence typically without disclosing the source. For example, if the complainant (Betsy) states that a coworker (Ian) tried to kiss her while she was clocking in and she says Eric saw the event, then when you interview Eric, rather than ask him if he saw Ian try to kiss Betsy, ask Eric if he saw anything unusual while he was near the time clock when he was clocking in. Let Eric tell you in his own words what he saw.
Start with open-ended questions and move to more narrow, focused, and even leading questions after the witness has sketched the limits of the events as he or she recalls them, for example, ‘‘Marc, did you see Alana yesterday?’’ ‘‘Okay, when you saw her, was she with Lydia?’’ ‘‘So, you say you did see them directly approach Charlene?’’’
Avoid using compound questions, for example, ‘‘Do you remember when Shawn saw Rachel in the office and she became upset?’’ Do you remember is one question and she became upset is another. Ask one question at a time. Typically, ask questions that force the witness to relate events chronologically to ensure thorough coverage.
Try to save unfriendly or embarrassing questions until the end of the interview. Hostile or tough questions usually cause the interviewee to become defensive. However, do not conclude the interview without asking the tough questions, even if the interviewee is uncomfortable.
Never give the impression that you disbelieve any witness.
Guard your emotions and do not express an opinion, either by outright statement or by verbal intonation, as to whether something inappropriate occurred during this fact-gathering process. In other words, saying, ‘‘I can understand why she might feel that way,’’ is neutral. However, saying, ‘‘I can understand why she might feel that way,’’ expresses a negative opinion of the person or what she said.
Prior to concluding the interview, ask if the witness has any other information that may be relevant. Ask if there are any questions that were not asked that the witness feels should have been asked. Let the witness know that if he or she has forgotten or later recalls any information or documents, the witness should call you immediately when additional information comes to mind.
At the conclusion of each interview, review with the witness the points contained in your notes to confirm their accuracy and determine whether the interviewee has anything to add. Review and finalize the notes immediately on completion of the interview or other communication.
Remember that, in general, tape-recording interviews is not advisable. Tape recorders often frighten interviewees and make them hesitant to share the facts they have.
If you will be sending the witness a statement, declaration, or memorandum for review and signature, explain what you will be doing and obtain a promise of cooperation.
Stress the importance of not disclosing the questions asked, information given, or other information about the interview to others to facilitate a thorough, impartial investigation.
Avoid discussing theories, strategy, assessment, or other evidence with the witness.
Do not include in your interview notes your own interpretations, beliefs, assumptions, or conclusions about the information given to you by the interviewee.

The Complainant/Victim

When interviewing the complainant/victim, consider asking the individual to write down, either before or at the start of the interview, all incidents of improper conduct in chronological order, and all facts and witnesses that establish what occurred. A handwritten statement by (or at least one prepared by) the complainant/victim

is desirable at this early stage before he or she has counsel who may recast the events in a more negative light. It is helpful to have a checklist/questionnaire form to assist you in capturing basic facts during a witness interview. For example:

Information about complainant

Name (Last, First , Middle)
Address	City	Zip
Home Phone	Work Phone	Cell Phone
Job Title	Immediate Supervisor	Date of Hire
Race/Ethnicity	Sex	Age/Date of Birth
Religion		Other

Information about alleged harasser

Name (Last, First , Middle)
Address	City	Zip
Home Phone	Work Phone	Cell Phone
Job Title	Immediate Supervisor	Date of Hire
Race/Ethnicity	Sex	Age/Date of Birth
Religion		Other

Basis of charge of discrimination/harassment

RaceColorAncestryNational	Sex/Gender (M/F, pregnant)Sexual Orientation (heterosexual, homosexual, bisexual)Gender Identity	□ Disability What is the disability?
□ Other
Origin	□ Marital Status
□ Age	□ Genetic Predisposition
□ Religion	□ Retaliation (opposed	□ Other
	discrimination)

Discriminated by being:

□ Fired/Discharged	□ Denied Promotion
□ Not Hired	□ Denied Transfer
□ Forced to Quit	□ Refused Pay Raise
□ Laid Off	□ Unequal Pay
□ Sexually Harassed	□ Unequal Hours
□ Harassed	□ Suspended
□ Refused Accommodation	□ Other (specify):

Date of last discriminatory action:
Summary of facts

Dates of Discrimination	Description of Discriminatory Adverse Actions

You should also ask the complainant/victim the following questions:

• Did you ever indicate that you were offended or somehow displeased by the act or offensive statement? (Don’t give the impression that unless the complainant said or did something to display displeasure he or she has ‘‘hurt’’ his or her credibility. The Meritor case indicates that circumstances may force the victim to submit to the harasser and such acquiescence is not neces- sar-

ily interpreted to mean that the harasser’s actions were welcome.)

What did you say to show your displeasure? (Try to get exact words spoken.)
What did you do to show your displeasure? (Try to get the exact words and/or actions.)
What was the harasser’s response to your act or statement? (Try to get exact words spoken.)
When did you indicate your displeasure?
Did you ever specifically tell the harasser to stop?
Did you ever specifically say that you found the conduct to be offensive or to constitute illegal harassment?
Did you speak to anyone else about the offensive behavior or statement?
With whom did you speak?
When did this conversation take place?
What did you and he or she say [exact words used]? (Also ask about verbal intonation.)
Did you ever make any notes or record of this incident?
Did you tape-record it? When?
What do your notes or recordings say?
Where is a copy?
Can we obtain one? (You may want to have a notary public certify that the copy given to you is a true and correct copy of the original it was made from. This can help get something into evidence later on.)
What did you do after the offensive statement or incident? (Find out if the individual was able to return to normal activities. It is very important to ascertain if the employee was able to return to normal activities because actions constitute hostile environment harassment only if they unreasonably interfere with the victim’s ability to do his or her job.)
Did you ever seek any medical treatment or counseling as a result of the incident or offensive statement?
When did you first learn of the company’s antiharassment policy and complaint procedure?
To whom did you first report the offensive incident or statement?
If the individual did not use the complaint procedure promptly: Why did you wait so long to use the complaint procedure to report the incident or statement?
What action do you want the company to take? (Make no representations regarding what actions the organization may or may not ultimately take! Remember that just because a com- plainant/victim indicates that he or she wants or doesn’t want the company to take certain action does not mean that the individual will not later file a lawsuit claiming that the action taken was inadequate. Also, the victim will always want the harasser severely punished. Job death may be disproportionate to the facts in question.)
Before concluding the interview with the complainant/victim you

should:

Thank the employee for raising the issue.
Reaffirm that the company does not permit retaliation or reprisal for making an honestly believed complaint.
Ask the employee to keep the investigation and information provided during the interview confidential.
Express the company’s commitment to conclude the matter in a timely manner.
Confirm that all facts, evidence, and persons with potential information have been disclosed to the best of the individual’s ability.

The Accused

The Cat’s Paw or Dupe Theory of Liability Always interview the accused party and allow the person the opportunity to fully and fairly tell his or her side of the story. Do not rely solely on information about an employee that you receive from someone else.

In several jurisdictions, the EEOC has successfully argued that an employer should be liable for discrimination even if it did not know that the

disciplined employee was a member of a protected class. An example can be drawn from EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, No. 04—2220 (10th Circuit, June 7, 2006). The EEOC successfully argued that Coca-Cola could be liable for race discrimination even though the human resources decision maker was unaware of the employee’s race. She made her decision based solely on information she received from the employee’s allegedly biased supervisor, who made her his ‘‘cat’s paw’’ or dupe.

Steps and Questions for the Accused

Identify and give the individual an opportunity to respond to each alleged improper statement or action.
Disclose the incidents/statements in full detail so that the accused has a full opportunity to refute or disprove them.
Ascertain the extent and nature of the interactions the accused has had with the alleged victim. For example:
Have gifts, cards, or notes been exchanged?
Has there been a dating, sexual, social, or working relationship?
Has the alleged victim initiated or participated in any sexual or otherwise inappropriate discussions, jokes, or gestures? Remember, you are trying to ascertain whether a reasonable person in the same circumstances as the alleged harasser would have deduced that his or her words or actions would be welcome.
Has the alleged victim ever indicated any displeasure with anything the accused has said or done or ever asked the accused to stop?
Ask the accused for any facts that show anyone else may have a motive to fabricate the allegations against the accused. If the accused denies wrongdoing and claims that the person raising the issue is lying, explore possible reasons.
Ask why the accuser would make the claim.
Ask if anything has happened between the two individuals that would explain why one would make a meritless complaint.
Give the accused an opportunity to provide any alibis or mitigating circumstances.
Ask the accused to identify all persons he or she believes should be interviewed as part of the investigation and what relevant information each is likely to have.
Request that the accused provide you with all relevant documents and other evidence.
Ask the accused what steps he or she believes should be taken to ensure a thorough investigation.
Explain to the accused that the company prohibits any retaliation or reprisal against anyone making a complaint of illegal harassment or anyone who provides information concerning the complaint.

Weingarten Rights

Union employees have a right to union representation at investigatory interviews if they request such representation and reasonably believe the interview will result in their being disciplined. See NLRB v. Weingarten, Inc., 420 U.S. 251, 88 LRRM 2689 (1975 Supreme Court case).

Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his or her conduct.

There is no duty to advise (Weingarten is not Miranda). Employers have no duty to advise employees of their Weingarten rights. Consequently, employers may conduct investigatory interviews without the participation of an employee representative if one is not requested.

If an employee makes the request to have union representation present and the employer does not want to grant that request, the employer can present the employee with the choice of (1) participating in the interview without a union representative or (2) having no interview and forgoing any attendant benefits (e.g., the chance to tell his or her side of the story).

There is no right to counsel. The National Labor Relations Board (NLRB) has held that an employee’s right to have a representative present at an investigatory interview does not include the right to be represented at the interview by a private attorney. See McLean Hospital, 264 N.L.R.B. 459, 474 (1982). This ruling has particular import for companies that cooperate in investigations by, for example, the Securities Exchange Commission and the Justice Department, since effectively interviewing employees who are sitting at the interview table with their attorneys may be unproductive or impossible.
A Weingarten representative cannot interfere in the investigation.

In Weingarten, the Supreme Court expressly stated that the representative’s role is to assist the employee and ‘‘may do so by attempting to clarify the facts or suggest other employees who may have knowledge of them.’’ The Court made clear, however, that the employer may ‘‘insist’’ on hearing only the employee’s own account of the incident under investigation. Consistent with this principle, a Weingarten representative oversteps the bounds if he or she directs the subject of the interview not to answer questions or to answer questions only once. See New Jersey Bell Telephone Co., 308 N.L.R.B. 277 (1992). An employer who ejects the representative who engages in such obstructionist tactics acts lawfully because ‘‘it is within an employer’s legitimate prerogative to investigate employee misconduct in its facilities without interference from union officials.’’

The employer may proceed without delay. Although an employee has a right to demand the presence of a representative, the employer is not required to unreasonably delay its investigation. If the requested representative is ‘‘unavailable either for personal or other reasons for which the employer is not responsible,’’ and if another representative whose presence could be requested is available, the employer is not obligated to postpone the interview. See Coca-Cola Bottling, 227 N.L.R.B. 1276 (1977). Rather, because ‘‘the right to hold interviews without delay is a legitimate employer prerogative,’’ the burden remains on the employee to request the presence of an alternative representative. Of course, if the requested representative is not then available, but would be shortly, the NLRB would likely find that no legitimate employer interest is impaired by delaying the interview until the chosen representative can attend.

Conclusion of Investigation

Results

If the results of the investigation are conclusive, take appropriate action. If the results of the investigation are inconclusive, document that outcome and take the most appropriate action reasonable under the circumstances at that time.

Advise the complainant and the accused of any disciplinary action or other corrective steps to be taken, and urge the complainant to come forward immediately if there is any recurrence of the activity or retaliation.

Communicate the outcome only to those members of management or the general staff with a ‘‘need to know.’’

Final Report

Investigative reports aren’t book reports. They are detailed and logical documents that discuss the following:

Issue/Facts—What were the allegations and facts?
Rule/Policy—Was there a specific company rule, policy, or procedure, or a federal, state, or city law or ordinance covering the situation?
Analysis—This part of the report compares the allegations and facts to the policy, rule, or law.
Conclusions—These are the results of the analysis, including recommendations and determinations as to the validity of the allegation^).

The final report provides a document that decision makers can use to determine appropriate action that should or should not be taken.

Workplace Violence

Employer’s Duty to Provide a Safe Workplace

An employer’s duty to provide a safe workplace can be directly derived from Section 5 of the Occupational Safety and Health Act of 1970 (OSHA), commonly known as the General Duty Clause.

The General Duty Clause says:

Each Employer:
Shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees
Shall comply with occupational safety and health standards promulgated under this act
Each employee shall comply with occupational safety and

health standards and all rules, regulations, and orders issued pursuant to this act which are applicable to his own actions and conduct.

Anything can become a recognized hazard, including workplace violence, and OSHA applies to any private employer with one or more employees, federal employers, and public sector (state, county, or city) employers in twenty-six states and U.S. territories that have their own OSHA-approved programs.

OSHA invokes the General Duty Clause and levies penalties when the following criteria are met:

There is not an applicable OSHA standard (regulation). There is no standard dealing with workplace violence.
The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed.
The hazard is (or should have been) recognized by the employer.
The hazard is causing or was likely to cause death or other serious physical harm.
There is a feasible and useful method to correct the hazard.

Basically, because of the General Duty Clause, employers must provide a workplace that is safe from foreseeable workplace violence.

In addition, Section 5(b) puts a duty on each employee to comply with workplace rules, including those related to workplace violence. Therefore, it is important that you (the employer) have a written, published, and widely disseminated workplace violence policy. In this regard, many of the features of a sexual harassment policy should appear in your workplace violence policy. See ‘‘Employer’s Discrimination/Harassment Policy’’ in this chapter.

Workplace Violence Definitions

Workplace violence includes but is not limited to intimidation, threats, physical attack, domestic violence, or property damage and includes acts of violence committed by employees, clients, customers, relatives, acquaintances, or strangers against employees in the workplace.
Intimidation is engaging in actions that include but are not limited to stalking or behavior intended to frighten, coerce, or induce duress.
Threat is the expression of intent to cause physical or mental harm. An expression constitutes a threat without regard to whether the party communicating the threat has the present ability to carry it out and without regard to whether the expression is contingent, conditional, or future.
Physical attack is unwanted or hostile physical contact such as hitting, fighting, pushing, shoving, or throwing objects.
Domestic violence is the use of abusive or violent behavior, including threats and intimidation, between people who have an ongoing or prior intimate relationship. This could include people who are married, live together, or date or who have been married, lived together, or dated.
Property damage is intentional damage to property and includes property owned by the organization, its employees, visitors, or vendors.

Types of Workplace Violence and Their Characteristics

Workplace violence occurs in a variety of forms, including violence by strangers, violence by customers or clients, violence by coworkers, and violence by personal relations.

Violence by Strangers

Violence by strangers involves verbal threats, threatening behavior, or physical assaults by an assailant who has no legitimate business relationship to the workplace. According to OSHA, violence by strangers is responsible for the majority of fatal injuries related to workplace violence nationally. Workplaces at risk of violence by strangers commonly include late- night retail establishments and taxicabs.

Violence by Customers or Clients

Violence by customers or clients involves verbal threats, threatening behavior, or physical assaults by an assailant who either receives services from or is under the custodial supervision of the affected workplace or the victim. Assailants can be current or former customers or clients. They can be (1) individuals who have exhibited violent behavior in the past or (2) those who are situationally violent—for example, individuals provoked when they become frustrated by delays or by the denial of benefits or social services.

Violence by Coworkers

Violence by coworkers involves verbal threats, threatening behavior, or physical assaults by an assailant who has some employment-related involvement with the workplace, such as a current or former employee, supervisor, or manager. Any workplace can be at risk of violence by a coworker.

Violence by Personal Relations

Violence by personal relations involves verbal threats, threatening behavior, or physical assaults by an assailant who, in the workplace, confronts an individual with whom he or she has or had a personal relationship outside of work. Personal relations include a current or former spouse, lover, relative, friend, or acquaintance.

Identifying the Risk Factors and Symptoms of Workplace Violence

Employees as well as managers should be trained to recognize the stages of workplace violence. That recognition is essential for the employer to intervene in a timely and appropriate manner before a violent episode occurs. Management should have a plan in place for appropriate, early intervention.

The following indicators can signal the risk potential of violent episodes:

Sudden and persistent complaining about being treated unfairly
Blaming of others for personal problems
Sudden change in behavior, deterioration in job performance
Statement that he or she would like something bad to happen to a supervisor or coworker
Paranoid behavior
Sudden increased absenteeism
Sexually harassing or obsessing about a coworker: sending unwanted gifts and/or notes, unwanted calling, stalking
Increased demand of supervisor’s time
Alcohol or drug abuse
Talking to oneself
Instability in family relationships
Financial problems combined with not receiving a raise or promotion
Poor relationships with coworkers or management
History of violent behavior
Previous threats, direct or indirect
Presenting and talking about reading material that is violent in nature
Carrying a concealed weapon, or flashing one around
Quiet seething, sullenness
Refusal to accept criticism about job performance
Sudden mood swings, depression
Sudden refusal to comply with rules or refusal to perform duties
Inability to control feelings: outbursts of rage, swearing, or slamming of doors

If an employee begins demonstrating any or a combination of the previous indicators, it is important that management refer him or her to the employee assistance program (EAP) or other counseling services as soon as possible. To assist the employee, to protect other workers, and to avoid liability, it is imperative that management respond in an empathic, caring, and non-shaming manner, remembering that time is of the essence.

Prevention Strategies

Environmental Designs

Some common environmental violence prevention strategies include, but are not limited to, the following:

Cash-handling policies in using locked drop safes, carrying small amounts of cash, and posting signs and printing notices that limited cash is available.
Providing physical separation of employees from customers, clients, and the general public through the use ofbullet-resistant barriers or enclosures.
Making high-risk areas visible to more people and installing good external lighting.
Controlling access to and exits from the workplace, the ease with which nonworkers can gain access to work areas because doors are unlocked, and the number of areas where potential attackers can hide.
Using numerous security devices such as closed-circuit cameras; alarms; two-way mirrors; electronic control access systems; panic- bar doors locked from the outside only; and trouble lights or geographic-locating devices in mobile workplaces, such as trucks, vans, and cars.

Administrative Controls

Administrative violence prevention and control strategies include, but are not limited to, the following:

Publishing a workplace violence policy and distributing it to all employees.
Establishing a system for documenting violent incidents in the workplace. Such statistics are essential for assessing the nature and magnitude of workplace violence in a given workplace and quantifying risk.
Using security guards or receptionists to screen persons entering the workplace and to control access to actual work areas.
Developing appropriate work practices and staffing patterns during the opening and closing of establishments and during money drops and pickups.

Behavioral Strategies

Behavioral violence prevention and control strategies include, but are not limited to, the following:

Enforcing workplace violence policies.
Training employees in nonviolent response and conflict resolution.
Emphasizing the appropriate use and maintenance of protective equipment, adherence to administrative controls, and increased knowledge and awareness of the risk of workplace violence.

A proactive approach can greatly help in reducing workplace violence and in mitigating its impact if it does occur.