Proceed carefully, objectively to investigate sexual harassment claims

During the 1991 sexual harassment testimony of Professor Anita Hill at the Senate confirmation hearings for Supreme Court nominee Clarence Thomas, many people were not sure which one to believe. We may not remember the specifics of what was said, but what many recall with horror is the manner of Hill's cross-examination.

Reasonable people can disagree as to the credibility of her testimony, but what can't be credibly debated is that the way she was questioned by the all-male committee was objectively wrong.

Yet, without guidance, most employers are likely to repeat the Senate's mistakes. While most companies now have specific policies on sexual harassment, few have developed guidelines or taught their supervisors how to investigate such claims.

Developing procedures and training supervisors after the claim has been raised is too late. By then, emotion rather than reason will dominate. Under these circumstances, objective, dispassionate investigation is all but impossible.

Here are some general guidelines to help employers develop and implement objective and effective procedures for investigating sexual harassment claims.

Don't presume guilt

I often have heard it said that employers should assume, at least initially, that all sexual harassment complaints are true. This is a dangerous assumption.

Employers should take all claims seriously, but presuming that the alleged harasser is guilty may subject the employer to a viable defamation claim.

Few allegations are potentially more damaging than one of sexual harassment, which can damage the employee's life both at work and at home. Not surprisingly, when confronted with such claims, employees fight back.

Thus, commencing the investigation with a presumption of guilt will make the process appear unfair to the accused. This apparent unfairness may provide him or her with the stimulus to sue.

Moreover, the guilt presumption may be used against the employer in litigation. Although truth is a defense to a claim of defamation, the accused may be able to argue the falsity of the employer's ultimate determination based on the underlying presumption on which the investigation began.

Therefore, when investigating sexual harassment and other EEO claims, employers must consider the rights of both the victim and the accused. The way the investigation begins is critical to this balance.

Reasonable-woman standard

To be actionable, the conduct giving rise to a sexual harassment claim must be, among other things, offensive. The question is, What is the legal definition of offensive?

Recently, several courts and the EEOC have held that, when the victim is female, a more specific reasonable-woman standard should apply instead of the theoretically gender-neutral reasonable-person standard applied previously. In so holding, these courts and the EEOC have recognized that men and women often have different sensibilities as to what is offensive workplace conduct.

The existence of the reasonable-woman standard is significant for employers. Since juries may be asked to determine whether the conduct would have been offensive to a reasonable woman, the employer's investigation guidelines and resulting determinations will lack credibility if a finding of no sexual harassment is made by a panel composed exclusively of men. Consequently, women must play a key role in all phases of the process.

Maintain confidentiality

Allegations of sexual harassment should not be broadcast to the workplace like they were broadcast to the nation in the Hill-Thomas hearings.

To minimize exposure to defamation claims, allegations of harassment generally should be disclosed only to those who have a "need-to-know" so a fair and adequate investigation can be conducted and/or appropriate corrective action can be taken. If disclosures are limited in this manner, there should be a qualified privilege with regard to defamation claims based on statements made during the investigation process.

For maximum confidentiality, HR should have authority over and control of the investigation process for sexual harassment claims. Supervisors should not have the authority to investigate such claims on their own initiative, because most of them will not have the training and/or skills necessary to perform the balancing act that these investigations require. Moreover, supervisors usually will not know the big picture, with the attendant risk of incomplete and/or inconsistent investigations.

Consequently, if an employee complains to a supervisor about sexual harassment, or the supervisor witnesses sexual harassment (even in the absence of a formal complaint), he or she should be required to notify Human Resources immediately before taking action or commencing investigation.

To further maintain confidentiality, individuals questioned in connection with the investigation should be encouraged not to share with others the allegations that have been discussed with them. Some employers go beyond this; they prohibit further discussions under the penalty of discipline, up to and including discharge.

Such prohibitions are not recommended because they almost certainly will violate the National Labor Relations Act. These discussions arguably are a form of protected activity, even in nonunion companies.

Similarly, such a prohibition may run afoul of Title VII (and similar state fair-employment practice ordinances). Title VII prohibits an employer from retaliating against an employee for raising concerns under the Civil Rights Act.

Written complaints have risks

Some employers require employees to put their complaints in writing, but such a requirement is not without risk.

As a practical matter, requiring a written complaint will formalize the process. If the process is formal, the employee may feel uncomfortable in handling it on his or her own and seek the assistance of outside counsel. If lawyers become involved, the stakes become higher and the bargaining power shifts.

Moreover, a written-complaint requirement, while not unlawful on its face, may be unlawful in its application. Generally, an employer is liable for hostile work-environment harassment only if it has actual or constructive knowledge and fails to take appropriate corrective action. An employer that has received an oral complaint of harassment has knowledge within the meaning of the law and, therefore, a duty to investigate.

However, an employee's refusal to provide the employer with a written statement may not be entirely irrelevant. This is one factor that an employer should be able to consider in assessing credibility. What an employer probably cannot do is refuse to investigate altogether because of the employee's refusal.

Teach managers how to question

Perhaps the most tragic aspect of the Hill-Thomas hearings was the perception--indeed, the reality--that Professor Hill was treated like the proverbial rape victim who asked for it. To the extent that an employer's investigation process is controlled by aspiring (or former) prosecutors, it is doomed to fail.

The purpose of the investigation is to find the truth, not to destroy the credibility of an individual who has the courage to step forward. The complainant should be cross-examined carefully, but the questioning process must be structured so that there is neither the existence nor the appearance of a "kangaroo court."

At a minimum, managers who participate in the investigation process must receive training on the do's and don'ts of interviewing. This training is necessary not only to protect the integrity of the process from conservative influences, but also to ensure that the employer has maximum opportunity to find out what actually happened rather than what the interrogators believe may have happened.

Complaints need documentation

A not-so-uncommon practice is for an employee to raise informally his or her concerns about sexual harassment, but then discourage the employer representative from taking any corrective action. In fact, the employee registering the complaint may implore the employer to do nothing further. What should the employer's response be in these circumstances?

If an employee indicates that the conduct is not so detrimental as to require further action on the part of the employer, doesn't it follow that the employer should honor the employee's wishes? Why make a federal case where none exists?

Most supervisors follow this train of thought. While this is understandable, it may cause problems later. For example, if the employee is subsequently let go for poor performance, or voluntarily terminates because it is clear that his or her employment is in jeopardy, the employee may allege that his or her performance began to deteriorate because the employer failed to correct the hostile work environment reported earlier. In deposition the employee's testimony will look nothing like what actually happened. After coaching by an attorney, the employee now will allege that he or she asked the employer to take corrective action, but that his or her request fell upon deaf ears.

Who will prevail in such a situation? This is a credibility issue for the jury to decide. At a minimum, there is the cost of defense.

To prevent employees from setting them up in this way, intentionally or otherwise, employers need to document all complaints of harassment and how they were investigated and resolved. When no action is taken at the complaining employee's request, a memo should be placed in the employer's investigation file documenting why no further action was taken. In some cases, it may be appropriate and/or necessary to give a copy of that memo to the employee. Such documentation should prevent the employee from changing his or her story upon "the advice of counsel."

Moreover in some circumstances, an employer may have no choice but to investigate the complaint, despite the employee's admonition to the contrary. For example, if the employee alleges sexual harassment that is also directed toward others, the employer has a duty to protect the other employees who are affected.

Finally, an employer's duty to investigate applies not only when an employee has complained about sexual harassment. As noted above, employers generally can be held liable for hostile work-environment harassment if they have actual or constructive knowledge of the harassment and fail to take appropriate corrective action. Consequently, even without a complaint, if the employer knows that there is inappropriate conduct in the workplace (perhaps because of its pervasiveness), then the employer has an affirmative duty to investigate and take appropriate corrective action.

Avoid retaliation

Despite an employer's best efforts, sometimes it is impossible to determine which party is telling the truth. In such situations, one option is to separate the two.

While separating the parties should minimize the likelihood that there will be additional allegations in the future, this form of "corrective action" may give rise to a whole new set of legal problems.

Under the law, an employer cannot retaliate against an employee for registering a complaint. Even if there is no loss in pay, change in the terms and conditions of employment can serve as the factual grounds for a viable retaliation claim.

Consequently, before separating the parties, employers should consider carefully which one (if any) should be moved, not assuming automatically that it will be the complainant. If it is the complainant, the employer should attempt to obtain his or her informed consent prior to the move, rather than risk a retaliation claim.

Conclusion

Defining sexual harassment is difficult; investigating claims, even more so. Employers must consider the rights of both the victim and the accused. Laws other than those pertaining to sexual harassment must be considered as well. Investigating sexual harassment claims is not an exercise to be taken on casually without experienced guidance.

Author's note: This article should not be considered legal advice or to pertain to specific factual situations.

Jonathan A. Segal, Esq., is a partner with the Philadelphia-based law firm of Wolf, Block, Schorr and Solis-Cohen. Segal's practice concentrates on the training of managers and the development and implementation of policies and programs designed to avoid litigation, unionization and other employee relations problems.

COPYRIGHT 1993 Society for Human Resource Management
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