Volume 19, Number 6
CHECKING OUT CLAIMS OF HARASSMENT: HOW TO INVESTIGATE BY THE BOOK
By Anne Buckleitner
To sensitize your clients to the importance of handling employee allegations of sexual or racial harassment complaints with speed and care, consider sharing with your client the results of these recent cases in which employers' responses shaped their legal destiny:
- In Madison v. IBP, Inc., the Eighth Circuit affirmed a $1.7 million jury award to an employee who reported severe verbal and physical harassment. The accused denied the allegations, and management conducted only limited investigation. Although the complainant informed management of continued harassment, no further investigation took place. The circuit court was critical of management in several areas. These included its failure to take reasonable care to investigate or stop civil rights violations or to systematically record counseling sessions for employees who engaged in harassing conduct; its tendency to ignore reports of harassment, to rely on unsubstantiated reports, and to maintain policies that the court viewed as punishing victims; and its discouraging reporting of civil rights violations.
- In Hill v. American General Finance, however, responsive and alert employers were able to avoid liability by responding quickly and appropriately to employee allegations. The Seventh Circuit in this case approvingly noted that the employer acted with "commendable alacrity in almost a textbook example of what is supposed to happen" in responding to complaints of "ignorant and loutish" supervisory behavior. The employer testified that the complainant had been put on notice that the human resources office was responsible for making sure there was no sexual or racial harassment of employees, and the complainant reported knowing she could complain if there was a problem. Within two days of receiving her complaint, the company conducted an investigation, disciplinary actions were taken, and the complainant was transferred away from the alleged perpetrator. The court found that the company's conduct satisfied the standard to avoid vicarious liability for a supervisor's acts.
To be effective, an employer must have an appropriate anti-harassment policy in place, and the employer's response must be initiated soon after an allegation is made. Regardless of who conducts the investigation, once an allegation of sexual or racial harassment surfaces, the employer's response should involve the following elements:
- Making a prompt and thorough investigation,
- Immediately implementing whatever remedial and disciplinary measures are identified as a result of the investigation,
- Informing the complainant of the outcome of the investigation, and
- Protecting the complainant from retaliation.
Many employers assign investigative responsibilities to senior staff or to human resources staff. This is not an inherently poor choice, but interviews can be difficult and awkward when the investigator and the subjects already know one another. An independent lawyer grounded in employment law and investigative fundamentals may be a better choice. The paramount reason employers should use outside counsel is to cover the chance the investigator may be called to testify as a fact witness in ensuing litigation, which would disqualify the same lawyer from representing the employer in the litigation under the laws of most (if not all) states.
A lawyer-investigator's relationship to the employer and its regular counsel can be structured in either of two ways: as a "special counsel" or as an "independent investigator/fact witness." Being a special counsel could protect an investigator's information from discovery both by having it classified as attorney work product and by claiming the attorney-client privilege. Protecting the investigation in this way is not typical, however. A more common objective would be to structure the relationship so the investigator's testimony, notes, and report support the employer's affirmative defense. In this way, the relationship among the investigator, employer, and counsel for the employer would reinforce the investigator's independence and neutrality and permit the investigator to testify as a fact witness without disturbing the attorney-client relationship.
The investigator should know basic interview techniques-including being able to ask difficult questions-and be familiar with employment law fundamentals. The success of an investigation can depend on the investigator's interviewing skills; sound interrogation techniques include the following:
- Demonstrating respect for the speaker,
- Listening closely and focusing on what is not being said,
- Pursuing follow-up questions based on the interviewee's respons-es, and
- Knowing when to be silent.
The first portion of the investigator's report should include a chronology of events that led to the investigation, the initial investigative steps, and all contacts with the investigator. Equally important to acting quickly is documenting that timeliness. If delays occur, reasons for them should be noted, particularly if they are beyond the employer's control.
Each person interviewed must be told that the investigator is working for the employer and that the purpose of the interview is to gather information that will be given to management. Stress that efforts will be made to restrict the report to a need-to-know basis but, because the objective is to gather information for management's planning considerations, confidentiality cannot be guaranteed. Assure the interviewees of management's promise that no retaliation will occur for sharing information.
Choosing whom to interview will affect the success of an investigation. Typically, the complainant is interviewed first, followed by witnesses or those in a position to corroborate or dispute various points, then the alleged perpetrator, and finally those who require follow-up. Contacting people who have observed workplace dynamics but are not personally involved in the allegations can also be helpful. Such disinterested testimony can provide valuable perspective in corroborating or sorting through conflicting commentary. Remember that each interviewee's commentary must be considered for bias and motivation.
Regardless of the number of people participating in an interview, only one set of notes should be made for each interview; even slight discrepancies among notes made by different interviewers could cast doubt on the reliability of all recollections. To minimize concern about invasion of privacy and defamation allegations, counsel your client to control access to the investigator's report and attachments and to make copies only when absolutely necessary. The report should be marked as confidential, and recipients should be advised to handle it as such. The report also could become evidence in litigation. If presented to an unemployment agency, to a civil rights agency such as the EEOC, or as evidence in litigation, counsel should look to the relevant law of qualified immunity to verify appropriate protections.
Employers should review detailed summaries of each interview in order to obtain a fuller view of what goes on in the workplace. In addition, interview information buttresses the report and aids management in forming its response. To protect privacy while at the same time providing the level of detail that makes a report useful, the body of the report can be split into two sections: a summary of chronological and factual data and general assessments, and a detailed appendix with the investigator's observations about each interview. This gives the employer several options when circulating information about the case.
It is essential that the complainant be told the results of the investigation and that the employer monitors workplace assignments to preclude retaliation. These follow-up measures can be important in establishing compliance with the Civil Rights Act and similar statutes and are beneficial to workplace morale by eliminating gossip and the perception that the employer is all talk and no action.
Anne Buckleitner practices employment law in St. Joseph, Michigan, and was recently appointed as an assistant U.S. attorney for the Western District of Michigan.
This article is an abridged and edited version of one that originally appeared on page 20 of Business Law Today, January/February 2002 (11:3).