The Legal Obligation to Conduct Workplace Investigations Prepared for NAIS By: Donna Williamson and Morin I. Jacob November 2010

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1 The Legal Obligation to Conduct Workplace Investigations Prepared for NAIS By: Donna Williamson and Morin I. Jacob November 2010 Every year, school administrators around the country hear complaints from their staff. Some complaints are easily handled; others are more wish list complaints those that a school would love to change given unending resources and time. Then there are complaints that make every school uneasy. Complaints of harassment and discrimination make everyone sit up and take notice, but what should a school do once such an issue has been brought to its attention? The prevalence of harassment and discrimination claims, and a school s corresponding duty to investigate, can be easily placed into perspective given recent statistics. In 2009, the EEOC received 93, 277 complaints of harassment and discrimination. 1 This is up from 82,792 complaints of harassment and discrimination received by the EEOC in Legal Obligation to Perform an Investigation Federal law requires employers who know of, or should have known of, possible harassment, discrimination, or retaliation to investigate. 3 The Equal Employment Opportunity Commission ( EEOC ) is a federal administrative agency that handles the processing and investigation of complaints of workplace harassment, discrimination, or retaliation made by employees against employers. The EEOC has also imposed a general duty on employers to investigate complaints of harassment, discrimination, and retaliation. Schools should be aware of the various events that can trigger the legal obligation to investigate a complaint. Obviously, schools should take every complaint seriously. Any time a complaint is received, either formally or informally, the school must conduct an investigation. This is the case whether the complaint comes from the aggrieved employee, or from someone other than the persons involved in the alleged harassment. This is also the case even if the employee does not follow a school s procedures for reporting harassment. 4 For example, the obligation is triggered regardless of whether the term harassment is used. The obligation is triggered any time a supervisor personally observes inappropriate conduct or language, or has general knowledge of a potentially hostile work environment. 5 A hostile work environment exists where there is severe or 1 EEOC charge statistics can be found at 2 Id. 3 Bator v. State of Hawaii (9 th Cir. 1994) 39 F. 3d 1021; Nichols v. Azteca restaurant Enterprises, Inc. (9 th Cir. 2001) 256 F. 3d 864; Fuller v. City of Oakland (9 th Cir. 1995) 47 F. 3d Varner v. National Super Markets, Inc. (8 th Cir. 1996) 94 F. 3d 1209, Van Zant v. KLM Royal Dutch Airlines (2d Cir. 1996) 80 F. 3d 708, 715 1

2 pervasive conduct against a victim based on the victim s protected status, such as his/her race, gender, disability, age, etc. 6 Sometimes the hardest situations are those when the employee asks that nothing be done because they want to protect themselves. It is important to remember that the obligation to investigate remains even where a complaining party asks that nothing be done. Practical Issues to Consider In addition to recognizing events that trigger the legal obligation to commence an investigation, there are practical matters to be addressed before, during, and after an investigation. Selecting the Right Investigator An appropriate investigator must be selected before an investigation can begin. An investigator should have experience and training in conducting workplace investigations. The investigator can be a division head, dean, a human resources or business manager, an outside consultant, a private investigator, or a contract attorney. The person in charge of the investigation should be in charge of the investigation without interference from others within the organization. To fulfill the obligation to conduct a prompt, thorough, and fair investigation, the investigator must be provided access to the witnesses. In general, it is preferable to have an investigation conducted by someone who is of higher rank than those being interviewed, and someone who has established credibility within the school. A school should consider a potential investigator s experience, personality, demeanor, and character in determining the appropriate person for the job. The investigator should be someone who is thorough, is patient with people, and is assertive. Harassment investigations may involve interviewing people who are reluctant to provide information. The investigator must be someone capable of pursuing difficult lines of questioning while maintaining a non-accusatory, positive rapport with interviewees. A skilled investigator is not viewed as an advocate for the complainant, the alleged wrongdoer, or the school. Neutrality and objectivity enhance the credibility of the investigator and the investigation. In order to achieve true neutrality and objectivity, the investigator must not be in the chain of review for the complaint. To conduct an impartial investigation that minimizes conflict of interest claims, the investigator must not be biased nor have any preconceived ideas or conclusions about the matter being investigated. This presents challenges for smaller schools with few administrators and may make it impossible to have staff be in a position to adequately perform as an impartial investigator. An investigator should also be someone who is knowledgeable about what harassment is, be familiar with the school s policies and procedures that prohibit harassment, and the type of conduct that violates the school s policy. A school should generally strive to have one person within the organization responsible for handling all harassment complaints. 6 Steiner v. Showboat Operating Co. (9 th Cir. 1994) 25 F. 3d 1459,

3 In addition, the investigator must have the ability to compile and analyze data gathered during the course of an investigation in a concise and organized manner. A good report will address credibility assessments and will support conclusions with citations to specific facts gathered during the course of the investigation. The school should direct the investigator to gather facts, make credibility determinations, prepare factual findings, and issue a report summarizing the scope of the investigation and the findings of fact. This report is likely to be subject to disclosure during discovery in the event of litigation and it is therefore essential that it be a record that supports the school s actions. The school can then conduct an analysis of the report to develop conclusions about the conduct and to assess potential liability. If the school uses the services of an attorney to perform this analysis, it will not likely be subject to disclosure during discovery in the event of litigation. There may be occasions when it becomes necessary to employ the services of an outside investigator. For example, when the harassment complaint involves a high-level employee, or if the investigation is going to prove too complex and time consuming, the school should consider whether an outside investigator is appropriate to ensure that a fair, prompt, and thorough investigation is done. An outside investigator will be unbiased and impartial. Plus, the outside investigator can devote the time necessary to conduct a prompt and thorough investigation. Some states require that employers who hire outside consultants to conduct investigations hire investigators that are licensed. In California, for example, the Private Investigator Act requires that outside consultants retained to conduct investigations, other than attorneys, must be licensed private investigators. 7 In California, any person retained to conduct workplace investigations who is not licensed is guilty of a misdemeanor punishable by a fine and/or by imprisonment in the county jail not to exceed one year. 8 It is imperative that schools consult with an attorney to determine whether any such limitations exist on hiring outside consultants and/or outside attorneys to conduct workplace investigations. Some circumstances may warrant hiring an attorney to conduct an investigation. When the investigator is a school s attorney, the attorney-client privilege and the attorney workproduct doctrine may prevent disclosure of the attorney s notes, reports, and other information gathered during the investigation. However, if a school is sued and plans to use the report to establish that a prompt and thorough investigation was completed, it is likely the school will be required to disclose the investigation report to be able to establish that a proper investigation was completed. Determine Whether It Is Necessary to Implement Interim or Temporary Corrective Action Before the Investigation Begins Temporary or interim measures may need to be taken before an investigation begins. For example, in situations involving harassment or discrimination complaints, the employer 7 Business and Professions Code Sections 7521, et seq.. 8 Id. 3

4 should assess whether corrective action is required to avoid the risk of continuing harassment or discrimination. Failure to take immediate and appropriate corrective action, especially where such action can be easily taken, can create additional liability for the school. In one case where an employer ultimately terminated an employee but delayed the investigation and failed to take appropriate corrective action prior to the investigation, the court upheld a verdict against the employer for intentionally inflicting emotional distress on the employee. 9 In Swenson v. Potter, an employee complained that she had been subjected to sexual harassment by a male co-worker and that the employer violated Title VII by failing to take appropriate corrective action in response to her complaint. 10 The employer had separated the two employees by moving the complaining party to a different position prior to initiating the investigation. The complaining party sued and alleged that she had been placed in a less desirable position for making a complaint of harassment. The court held that there was no evidence indicating that the position was less desirable than the one she held at the time of her harassment complaint. The court noted that while it is not proper to transfer a complainant to a less desirable location, an employer has broad discretion to choose how to minimize the contact between an employee who has been accused of harassment and an employee who is making a complaint of harassment. The school must consider the types of corrective action that may be required based on the circumstances. Appropriate corrective action measures may include a temporary transfer, placing the alleged wrongdoer on leave, temporarily changing office locations, assigning an interim supervisor during the pendency of the investigation, or other temporary measures designed to minimize interaction between the complaining employee and the alleged wrongdoer. It is important that the school adopt temporary measures that have the least negative impact on the complaining employee to avoid claims of retaliation by the complaining employee. A school should proceed cautiously in moving a complaining employee or taking any employment action that could be perceived as adverse to the complaining employee. It may be more appropriate to temporarily transfer the alleged wrongdoer as opposed to the complaining employee. It may be prudent to ask the complaining employee for his or her input to achieve a mutually satisfactory interim solution that reduces the potential for ongoing or compounding liability. A school should carefully document any discussions that take place with the complaining employee. The Investigator Should Collect and Review Relevant Documents After an investigator has been selected and any appropriate interim or temporary corrective action has been taken, the investigator should gather and review all relevant documents. Relevant documents typically include the personnel file of the alleged harasser, s, correspondence, diaries, journals, memos, etc. Documents relevant to the complainant and other witnesses may also need to be reviewed. The investigator should review the relevant documents at the outset of the investigation and question witnesses about their knowledge pertaining to the documents. Each person interviewed 9 Baker v. Weyerhauser Co. (10 th Cir. 1990) 903 F. 2d Swenson v. Potter (9 th Cir. 2001) 271 F. 3d

5 as part of the investigation should also be asked whether they have, or are aware of, relevant documents that will assist the investigator. The investigator should also gather and review all applicable school policies and procedures relating to investigations, harassment, conduct in the workplace prior to interviewing witnesses. These policies and procedures will help the investigator determine the facts to be gathered. Conducting Effective Investigation Interviews A poorly executed investigation can prove disastrous for a school. For example, in one case, an employer failed to initiate a prompt investigation despite repeated complaints of offensive conduct to supervisors. 11 When the employer did eventually begin an investigation, the employee was told that she might be terminated if her allegations were not sustained. During the investigation the investigator interviewed witnesses who did not speak English without an interpreter. Finally, the employer failed to take corrective action by transferring the harassers even though it was feasible for the employer to do so. The court upheld the award to the plaintiff in the trial court and sharply criticized the investigation. These types of scenarios demonstrate the importance of thoughtful planning to ensure an effective investigation is completed. The investigator must develop a game plan at the outset. The investigator must determine who needs to be interviewed. Typically, the investigator should interview the complaining party first to ascertain the nature and scope of the complaint. This is advisable even if the complaining party has submitted a complaint in writing. There may be a need to conduct one or more follow-up interviews with the complaining party based on statements provided by other witnesses. The investigator should advise the complaining party of this at the outset. In addition to the complaining party, the alleged wrongdoer should be interviewed as well. Typically, the alleged wrongdoer is interviewed after the complaining party and other witnesses have been interviewed. There may be a need to conduct one or more follow-up interviews with the alleged wrongdoer based on statements provided by other witnesses. In addition to the complaining party and alleged wrongdoer, the following should also be interviewed: eyewitnesses to the incidents at issue; witnesses identified by the complaining party, alleged wrongdoer, or other witnesses; and authors of relevant documents that may have information pertinent to the investigation. All witnesses should be asked if they know of any person who has relevant information, or if they know of any documents relevant to the investigation. Follow up interviews should be conducted after all witnesses, the complaining party, and the alleged harasser have been interviewed for the first time. The investigator should prepare an opening statement to be read to all witnesses, determine what questions will be asked, and determine how to document the statements obtained from the witnesses. It is recommended that all interviews be recorded to avoid 11 Henderson v. Simmons Foods, Inc. (8 th Cir. 2000) 217 F.3d

6 error and to keep a record of what each witness said. Recording also frees the investigator up to fully participate in the interview in a conversational manner and to ask spontaneous follow-up questions, rather than remaining focused on taking accurate handwritten notes. An opening statement should be read to each witness before the interview begins. The purpose is to provide an explanation about what the investigation is about and what is expected of the witness. The goal is to put the witness at ease, as witnesses are often nervous or apprehensive about participating. The content of the opening statement should generally address the following: that the investigator appreciates the witness s time and cooperation; an explanation of the nature of the matter being investigated (for example, sexual harassment, disability discrimination claim, etc.); that the information provided will be kept confidential, but only to the extent possible; that the cooperation of the witness is mandatory and failure to answer questions may result in discipline; that the witness is to keep his/her conversation with the investigator strictly confidential to avoid influencing the outcome of the investigation and failure to abide to the confidentiality order may be grounds for discipline; and that retaliation against the witness for participating in the investigation is prohibited and should be reported immediately. It is best to prepare the interview questions in advance to avoid overlooking details. An outline of questions will help the investigator organize the issues and address the main questions with each witness interviewed. Generally, an investigator should ask openended questions to avoid making it seem as though the investigator is leading the witness. The investigator should strive to ask who, what, where, when, how and why types of questions to elicit relevant information. It may be necessary to ask difficult or embarrassing questions. If possible, save these questions for the end to maintain a comfortable environment for the witness. The investigator should ask follow up questions and end the interview asking the witness if there is anything else to add. The witness should be told to contact the investigator if he or she remembers any additional facts that could be helpful to the investigation. The investigator should at all times avoid offering opinions or conclusions about the investigation. Prior to ending the interview, the investigator should review his/her notes to ensure that all of the issues have been addressed. Finally, a closing instruction should be read to each witness reminding them of the investigator s opening instructions regarding confidentiality and non-retaliation. Contents of the Written Investigation Report After interviews are completed, it will be time to prepare a written report. The investigation report sets forth the investigator s evaluations, findings of fact, and conclusions. There are a number of ways that a written report can be presented, but the following is a recommended structure for the written report: Introduction; Methodology and Persons Interviewed; 6

7 Background Facts. (This category depends on the complexity and nature of the investigation. It may not be necessary); Allegations; Chronology. (It may be appropriate, depending on the nature of the allegations, to combine the allegations with the chronology); Findings of Fact; Credibility Determinations; and Conclusions. The report should be objective and balanced. The investigator should avoid advocating for a position. The investigator should attach relevant documents to the investigation report. These documents may include s, CDs, pictures, drawings, or other documents gathered during the investigation. Determine Whether Permanent Corrective Action is Required After the Investigation After the investigation is completed, the school needs to determine whether appropriate corrective action must be taken. Permanent, appropriate corrective action takes place after, and relies upon, the findings of a timely, thorough, and complete investigation. 12. A school s ability to defend its remedial steps (or to defend the decision that remedial steps are not warranted) will largely depend on the quality of its underlying investigation. Schools must take corrective action if the investigation reveals that discrimination or harassment in violation of school policy has occurred. The remedial action must be reasonably calculated to end harassment and must deter future harassment by the same offender or others. 13 The type of corrective action required will depend on the following factors: the seriousness of the offense, the employer s ability to stop the harassment, the likelihood that the remedy will end the harassment, and the remedy s ability to persuade potential harassers to refrain from unlawful conduct. 14 The corrective action should also reflect the severity of the misconduct. If the corrective action does not stop the harassment, the school should take more severe remedial action until the harassment stops. This may ultimately mean termination. Depending on the severity of the harassment, the harasser may be terminated after the investigation of even a single complaint is completed. What level of discipline is appropriate depends on the 12 Perry v. Costco Wholesale, Inc. (2004), 98 P.3d 1264, Fuller v. City of Oakland (9 th Cir. 1995) 47 F. 3d Intlekofer v. Turnage (9 th Cir. 1992) 973 F.2d 773 7

8 severity and persistence of the harassment and the effectiveness of any initial remedial steps. 15 Schools Can Protect Themselves By Enforcing Anti-Harassment Policies The good news is that schools can take steps to protect themselves before a claim is even filed. Schools, like other employers, are obligated to exercise reasonable care to prevent harassment in the workplace. 16 A school is entitled to a defense to discrimination claims where it can establish that it took steps to immediately correct and stop harassment. 17 Schools must take the following actions: have an anti-harassment policy in place; disseminate the policy by providing a copy to every employee, directing them to read it, and encouraging them to seek explanations as to its meanings and requirements from a designated individual or office; and providing mandatory periodic training of employees on the employer s harassment policy. 18 An employer must show that it exercised reasonable care to prevent and correct harassment, and the employee unreasonably failed to take advantage of preventative or corrective opportunities made available by the employer. 19 For example, courts have held that an employee who delayed in filing an internal harassment complaint until nineteen days after the harassment occurred did not unreasonably fail to take advantage of the employer s preventative or corrective measures. The court stated that the delay was not unreasonable because the employee may have hoped the situation would resolve itself or may have been concerned about adverse employment consequences. 20 As such, the employer who did not appropriately respond in this situation, was not entitled to the defense. However, in another case, the same court found that an employer successfully established a defense where the employer tried to take steps to immediately correct the employee s work situation. The employer had offered to conduct an investigation, but the employee insisted on handling the situation himself. In addition, the employee never described the full extent of the details of the alleged harassment so the employer was never aware of the severity of the alleged misconduct despite attempts to obtain those details. 21 These cases remind schools about the importance of disseminating a written anti-harassment policy to all employees and effectively following up on any allegations of discrimination or harassment. 15 Waltman v. International Paper Co. (5 th Cir. 1989) 875 F. 2d 468, Faragher v. City of Boca Raton (1998) 524 U.S. 775; Burlington Industries, Inc. v. Ellerth (1998) 524 U.S Hardage v. CBS Broadcasting,. Inc. (9 th Cir. 2005) 427 F. 3d Faragher v. City of Boca Raton (1998) 524 U.S. 775; Burlington Industries, Inc. v. Ellerth (1998) 524 U.S Kohler v. Inter-tel Technologies (9 th Cir. 2001) 244 F. 3d Craig v. M&O Agencies (9 th Cir. 2007) 496 F. 3d Hardage v. CBS Broadcasting,. Inc. (9 th Cir. 2005) 427 F. 3d

9 Conclusion A prompt and thorough investigation is not only required by law, but it is also the only way that a school can determine what happened. It will assist the school to address workplace complaints in an expeditious manner with the goal of trying to avoid litigation. In the event that there is litigation, an adequate investigation can be a defense to liability for Title VII or state discrimination claims. Although the steps may seem excessive at first glance, they are actually examples of good management and a model for students and employees on how to respond to alleged wrong doing. The following is a summary of the steps that a school should take to conduct a proper investigation: The school must investigate any allegations of unlawful discrimination, harassment, or retaliation. This is true even if the complaint is informal or delayed or if the complainant does not want it addressed. The school must select an appropriate investigator who is objective and experienced. The investigator should be given access to the relevant documents and witnesses to conduct the investigation. Prior to beginning the investigation, the school must assess what, if any, temporary corrective measures should be taken to prevent ongoing harassment, discrimination or retaliation. Failure to take interim measures may result in ongoing misconduct that potentially exposes the school to additional liability. The investigator must prepare for and conduct witness interviews. Follow-up interviews should be conducted where necessary. The investigator will need to prepare a comprehensive and balanced written report at the end of the investigation that documents the investigator s findings of fact and conclusions. After the school has reviewed the investigation report, the school must determine whether corrective action is required. Appropriate corrective action is required if the investigation determines that employee misconduct occurred which violates school policies on harassment, discrimination or retaliation. The corrective action should reflect the severity of the misconduct, and the school should be prepared to continue to take more severe remedial action until the misconduct stops, up to and including termination. Obviously, a school s interest in deterring and preventing harassment, discrimination and retaliation reaches beyond the goal of minimizing exposure to legal liability. This type of 9

10 misconduct impacts the working and learning environment including having a negative impact on student and employee morale and performance. In addition, it can deter quality applicants for employment from applying to the school; potentially fosters a poor public image of the school; and can result in hundreds of thousands of dollars spent on attorneys fees and damages awards, rather than for the benefit of the school itself. Donna Williamson and Morin I. Jacob are attorneys with Liebert Cassidy Whitmore, a California-based law firm representing independent schools. 10