So You Received A Sexual Harassment Complaint, What To Do and What Not To Do A Trial Lawyer s Perspective

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1 So You Received A Sexual Harassment Complaint, What To Do and What Not To Do A Trial Lawyer s Perspective Presented by Kyle Kring and Laura Hess Kring & Chung, LLP 2014 California HR Conference August 27, :00 am - 9:15 am

2 In our media driven culture where the message sometimes seems to be the sexier the better, it can be easy to lose sight of the fact that sexual advances in the workplace, no matter the gender of the initiator, are a recipe for (a very expensive) disaster.

3 Overview Facts/Statistics About Sexual Harassment Claims Why an Investigation is Important - Mendoza Case What is Pretext What to Do and What Not to Do When to Hire Outside Investigator Investigation - Best Practices

4 Facts/Statistics About Sexual Harassment Claims

5 Statistics Sexual harassment in the workplace One in four women One in ten men 25 % of men say they worry about being falsely accused *November 2013 ABC News/Washington Post poll

6 How Costly are Sexual Harassment Claims? Average cost to defend is $150,000 per plaintiff. Average court verdict is $350,000. Does not include the cost of diminished productivity and bad publicity.

7 Sexual Harassment in the Workplace $44.6 million in damages received from sexual harassment claims filed with the EEOC in Each claim could cost company between $50,000 and $250,000 in legal fees and settlements.

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9 Losing a Sexual Harassment Case Can be Exceedingly Costly Plaintiff's remedies include: Back pay, including lost wages and benefits Front pay or reinstatement Emotional distress damages Plaintiff's attorney fees (typically larger than fees expended by defendant) Court costs Possible punitive damages

10 Employer s Liability Strict liability for supervisor s harassment. Liability for non-supervisory harassment only if employer knew or should have known of harassing conduct and failed to take immediate and appropriate corrective action.

11 Employee s Liability Personal liability imposed on any individual who harasses another person in workplace as long as there is an employment relation between two persons. Whether the harasser was employed in a supervisor or managerial capacity to the victim is irrelevant for imposing personal liability on the harasser.

12 Why a Proper Investigation is Important - Mendoza Case

13 Mendoza v. Western Medical Center (Jan. 2014) Issue on appeal causation (whether report of sexual harassment was motivating reason for firing). the motivating factor, or a motivating factor. Inadequate investigation is evidence of pretext Real issue shortcomings of investigation = employer did not value truth. Court highlighted numerous shortcomings of investigation.

14 Pretext

15 Pretext Employer - fired for legitimate business reason: Poor performance Policy violation Employee - fired for reporting harassment

16 Factors Timing of termination in relation to report of harassment. 4 months (Flait v. North Am. Watch Corp.)

17 Factors Identity of person making termination decision Could the jury conclude the report of sexual harassment influenced the termination decision? A supervisor annoyed by a worker s complaints about sexual harassment might decide to get rid of that worker by, for instance, fabricating a case of misconduct, or exaggerating a minor instance of misconduct into one that will lead to dismissal. (Reeves v. Safeway Stores, Inc.)

18 Factors Employee s job performance history before termination Is there documented history of misconduct? Jury will look poorly upon decision to terminate employee with lengthy and positive employment history. If there is history of poor performance, is there now a heightened management response to the performance issues after the report of sexual harassment? (Yanowitz v. L Oreal)

19 Factors Different treatment Did other employees commit the same policy violation/have performance issues? Did company treat those employees the same way as the employee who reported sexual harassment? Is there precedent for handling situation this way?

20 Factors Lack of a rigorous investigation Must be timely Impartial investigator Must be thorough Failure to take immediate and corrective action

21 What to Do and What Not to Do

22 What Not to Do Ignore complaints. Fail to prepare written investigation plan. Not beginning investigation immediately and taking steps to separate alleged harasser and victim.

23 What Not to Do Not use impartial and trained investigator - appointing harasser s co-worker/colleague to investigate. Interview victim and harasser at same time. Not preparing written statements, signed by witnesses. Failing to determine if alleged victim and harasser completed sexual harassment training required by California law. Concluding he said, she said. Not determining the credibility of the victim and alleged harasser by interviewing independent witnesses.

24 What Not to Do When confronted with he said/she said stories during the investigation, it is not OK to fire both parties (Mendoza). Joke about situation/ comments made behind claimants back. Employer still needs to conduct thorough investigation and make good faith decision based on results of investigation.

25 What Not to Do Not following company s (progressive or other) discipline plan. The slap on the wrist. Ignoring or isolating claimant.

26 Case Evaluation Tips (The Role of Human Nature in Sexual Harassment Claims) Take all claims seriously, but do not overreact. Eliminate emotion and personal bias in evaluating witnesses credibility (people have tendency to pick sides and see things one way when it may not be the truth). Arrogant managers and supervisors usually make bad witnesses.

27 Case Evaluation Tips (The Role of Human Nature in Sexual Harassment Claims) Explain why a person would jeopardize their career to make a sexual harassment complaint. Small lies/exaggerations or unimportant facts by the alleged victim don t make a liar in the eyes of a jury. Effect of having a policy in an employee handbook and not uniformly enforcing it.

28 Case Evaluation Tips Put yourself in the position of the alleged harasser, ask yourself: Is there equal power between me and the person I m interacting with? Would I act this way if my spouse or significant other was next to me? Would I want someone to act this way to my spouse or significant other? Is there equal initiation and participation between the other person and me?

29 Common Mistakes by Employer After Investigation Retaliating against victim Gov t. Code (b) prohibits the discharge of a any person because the person has filed a complaint under this part. A complaint under this part includes sexual harassment. California Constitution, Art. 1, section 8 provides A person may not be disqualified from entering or pursuing a business, profession, vocation or employment because of sex, race, creed, color, or national or ethnic origin.

30 Common Mistakes by Employer After Investigation Failing to review any and all subsequent adverse employment actions against the alleged victim. Is the proposed adverse action consistent with employer s actual practice? Is the proposed action supported by appropriate documentation? Is the claimant now being criticized or disciplined for performance or conduct that the employer deemed acceptable or tolerated prior to the claim? Would an unbiased observer think the action was reasonable? Would the employers best employee be treated the same way?

31 When to Hire Outside Investigator

32 Advantages Neutrality: Defeats argument that investigation was biased/sham. Attorney representing company may be accused of bias. Concerns about own future within company. Concerns about investigating/disciplining one of the company s power players.

33 Advantages Experience: In house HR person may not have legal knowledge to know right questions to ask. Has in house person received training in how to conduct sexual harassment investigations? Not conducting thorough investigation. Common mistake - getting conflicting stories from both sides and stopping there. Will this person make a good trial witness? This will be one of the key witnesses if the case goes to trial.

34 Confidentiality Less likely that investigation will turn into office gossip. Employees interviewed will likely feel more comfortable being open and honest if interviewer is not a co-worker.

35 When is Hiring Outside Investigator Warranted? More serious allegations. Person accused (high ranking, HR or legal staff). Likelihood of litigation.

36 Tips Once outside investigator hired, limit your involvement in investigation process to providing access to witnesses and documents. Do not try to influence outcome of investigation in any way by, i.e., stating your opinion of character of employees involved.

37 Investigation Best Practices

38 Take Aways Prompt Unbiased/impartial Confidential Protect complainant Corrective action Communicate corrective action and follow-up

39 Questions? Thank you for your time! Please feel free to call or your questions to: Kyle Kring Laura Hess Kring & Chung, LLP 38 Corporate Park Irvine, CA (949)