Sex, Lies and INVESTIGATE THIS!! Conducting Investigations of Sexual Harassment Complaints

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1 Sex, Lies and INVESTIGATE THIS!! Conducting Investigations of Sexual Harassment Complaints Joseph W. Gagnon Fisher & Phillips, LLP Presented by A. Kevin Troutman Fisher & Phillips, LLP Atlanta Baltimore Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Gulfport Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Antonio Phone San Diego (713) San Francisco Tampa Washington, DC

2 Cast of Characters Complainant: Nancy, Client Relations Specialist Accused: Brian, Sales VP and Nancy s Supervisor HR Vice President: Jim HR Manager: Angela President: Michelle Let s see what happens...

3 FIRST MEETING

4 What are potential legal problems? Hard core quid pro quo harassment? Pressured relationship harassment? Retaliatory action for ending relationship? Hostile work environment? Is the United proposal a pretext? Or, is it just poor judgment by the Sales VP (and Nancy) in consensual relationship?

5 What are potential business problems? Potential lawsuit Potential offensive work environment Potential loss (firing) of very valuable sales VP and the clients/revenue he controls Potential loss of Nancy as valuable employee

6 What Do I Do Now????

7 How should Jim proceed? Brian said - Don t let her sidetrack the issue Proceed with disciplinary discussion? Switch to investigation? Group discussion? Interview Nancy? Interview Brian? Let s see how Jim handled it...

8 First Meeting Cont d

9 How did Jim do? Took control over situation Message to Nancy Message to Brian Does your HR Director have the support of upper management to do what Jim did? Let s see the interview of Nancy...

10 Interview of Nancy

11 What did Jim and Angela accomplish? Connection with Nancy Presence of Angela for Nancy interview Nature/Severity of offensive conduct? Pressured relationship? Threats after breakup? The interview continues...

12 Interview of Nancy Cont d

13 Observations What was Jim s next question? Consent issue Jim covered the basics Recordings, witnesses, documents, photos, s, texts Let s go back to the interview...

14 Interview of Nancy Cont d

15 Great work by Jim Interview took a turn for worse Nancy pushes back Dangerous question about getting an attorney Jim s excellent response Jim brought her back (hopefully) Let s see how the interview concludes...

16 Interview of Nancy Cont d

17 Conclusion of Nancy Interview Question: What do you think would be fair outcome? Explanation of what will happen next Sends Nancy home with pay Maintain contact with Nancy So what does Brian say...

18 Interview of Brian

19 General Observations Brian wants to know what she said Jim properly resists Brian is evasive Jim properly persists Consent defense Importance? Strength?

20 Interview of Brian Cont d

21 General Observations Photos Significance? Was Nancy being honest? Brian s violation of relationship policy Significance? Brian asks to meet with Jim in private Good idea?

22 Quick Vote - If You Had to Decide Now Brian Nancy Fire Relationship Fire United as pretext Discipline/Final warning Exonerate on consent Fire Relationship Fire - Dishonesty Discipline/Final Warning Exonerate/Free Pass on United and everything else Jim reports to Michelle...

23 Jim s Report to Michelle

24 Legitimacy of President s Concerns New blond girl... She looked like trouble But she also said no tolerance for sexual harassment Is he guilty? Did he do it? Jim -- good summary of evidence no way to tell Why assume she s the one telling the truth? Because safest thing to fire Brian true? Okay to consider sales/profits/keep people employed? Lawsuit and jury is the problem? Use of arbitration program/agreement?

25 Michelle s Direction to Jim

26 Instructions from President I expect you to figure out how to fix this problem Your job to keep us out of lawsuits Keep business profitable Don t lose top salesperson over trumped up complaint Don t think firing Brian is best option Don t want to take her word for it But if he did it, he s slime, and need to get rid of him Owe him some loyalty after 30 years Offer Nancy money to leave? Concern is get lawyer and sue us for millions Just want you to figure out how to solve: Handle It

27 Time for Legal Analysis Harassment based on relationship Harassment based on comments in workplace Harassment based on retaliation Harassment based on threats of retaliation If harassment occurred Employer must take prompt and effective remedial action What about any claim by Brian?

28 Time for Decision - You Make the Call On Brian On Nancy Fire Final Warning No Discipline Fire Discipline No Discipline Transfer Promotion

29 Jim s Decision

30 How Did Jim Do? Agree/Disagree? Punishment for Brian? Documentation of Decision To Nancy To Brian To File

31 Is the Problem Solved? Nancy is satisfied No lawyer involvement No EEOC Charge/Lawsuit No loss of Brian President is happy Congrats Jim! BUT is the story over?

32 Is the Story Over? Maybe Still a risk of a lawsuit? Why? Can still assert claim Future alleged harassment/retaliation Continuing violation theory How can Jim minimize that risk? Follow up regularly with Nancy Keep an eye on Brian Training/vigilance

33 Closing Observations/Lessons A sexual harassment complaint is an opportunity to solve a business problem Act fast/high priority Treat complainant with respect and appreciation Focus on finding a solution that ensures professional work environment, avoids a lawsuit and promotes business interests

34 Final Questions? Thank You Atlanta Baltimore Boston Charlotte Chicago Cleveland Columbia Columbus Dallas Denver Fort Lauderdale Gulfport Houston Irvine Kansas City Las Vegas Los Angeles Louisville Memphis New England New Jersey New Orleans Orlando Philadelphia Phoenix Portland San Antonio Phone San Diego San Francisco Tampa Washington, DC (zzz) zzz-zzzz

35 Fisher & Phillips is committed to taking a practical, businesslike approach to solving labor and employment problems. In seventy years, Fisher & Phillips has grown to become a national law firm with 300 attorneys and 31 offices, and we still share that commitment of our founders. Specifically: We provide practical business solutions to our clients' legal problems. We learn our clients business and industry. We are responsive. A. Kevin Troutman Partner We respect our clients' time. Joseph W. Gagnon Partner OFFICE LOCATION Because of our deep knowledge and experience, we are economical. OFFICE LOCATIONS Houston (713) phone We help our clients avoid legal problems. We are national and local, with attorneys admitted in just about every U.S. jurisdiction. We represent a wide range of public and private employers. Our clients include employers in the agriculture, automotive manufacturing, automobile dealership, banking, broadcasting, casino and gaming, construction, health care, hospitality, insurance, legal and professional services, manufacturing, mining, real estate, retail, technology, transportation, and wholesale and distribution industries, as well as state and local government entities, non-profit organizations, schools, colleges and universities. Houston (713) phone San Antonio (210) phone

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