An employer should adopt a company policy against misconduct of all kinds, including harassment and unlawful discrimination. This policy may be part of an overall Ethics Policy as discussed in Section II.B.2. Under such a policy, even one harassing "event" should subject the harasser to discipline notwithstanding that such an isolated occurrence may not give rise to legal liability. The policy should state that every complaint will be taken seriously, every complaint will be investigated promptly, and appropriate remedial action will be taken to assure harassment is not repeated.
The advantage of this approach is that the employer can discipline an employee for behavior that violates "company policy" without having to find (and later establish in court) that the person engaged in unlawful conduct. Having such a "zero tolerance" approach, however, is dangerous if it is not consistently followed.
Whether "zero tolerance" or not, a good written policy should:
1. Describe with specificity behavior that constitutes a violation of company policy while giving management discretion;
2. Unequivocally state that these behaviors will not be tolerated, and that those found guilty of such conduct will be subject to appropriate sanctions that may include termination;
3. Provide confidentiality on a "need to know" basis, but never promise it as an absolute;
4. Promise and provide protection from retaliation for complainants and witnesses; and
5. Provide a number of avenues through which a complaint may be initiated.
A sample anti-harassment policy is attached as Appendix W and a model grievance procedure is attached as Appendix X.
The policy should be widely disseminated to all employees and posted in a central location. In addition, the policy should be included in any relevant personnel manuals or employee handbooks, and distributed periodically. It is wise to have employees sign a document stating that they have read, understood and agree to abide by the policy. Statutory posting requirements are contained in Appendix C.
The policy should be internally consistent with the employer's other discipline and personnel policies. For example, the employer's policy should explicitly provide that conduct in violation of this company rule might result in an employee's immediate termination, despite a general policy of progressive discipline (if applicable). This policy also should be noted in the employer's progressive discipline procedure, if one exists.
In unionized settings, some collective bargaining agreements allow employees to substitute a separate sexual harassment resolution procedure in lieu of the standard grievance process established for other types of disputes. If no special provisions exist, employers should not hesitate to negotiate better procedures.
All personnel, particularly supervisors, should be taught what constitutes a policy violation and why such conduct is not permitted in the workplace so they can be alert to inappropriate conduct and take appropriate action. Many states already require the dissemination of information about certain misconduct, such as sexual harassment, but employers should go further and conduct live training sessions at which personnel are encouraged to discuss their concerns and help raise the sensitivity of their co-workers. They also should be directed to report all complaints to designated officials and should be cautioned against unconscious retaliation against employees who complain.
It is generally preferable to conduct training of managers and non-managers separately. Separate sessions, for example, allow the trainer to emphasize the differing responsibilities of the groups.
New York does not have any statutory or other specific requirement regarding training and education.320 New York employers should follow the guidance set forth above for training of all employees.
Connecticut law ("An Act Concerning Sexual Harassment Education and Training in the Workplace," Public Act No. 92-85)321 requires employers with 50 or more employees to provide training and education on sexual harassment to all supervisory employees. The term "supervisory employees" is not defined by the statutes or regulations, but should be broadly interpreted. The Act also requires employers with three or more employees to post information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment.
All supervisory personnel had to complete a two-hour training session by October 1, 1993. Thereafter, all new supervisory personnel must complete a two-hour training session within six months of their assuming a supervisory position. Employers are required to provide training for all executives, administrators, managers, supervisors, and work leaders. The training must be presented "in a classroom-like setting" and "in clear and understandable language. Under the Commission's regulations, the training must include the following:
· A description of all federal and state statutory provisions concerning sexual harassment with which the employer is required to comply;
· Information regarding the definition of sexual harassment contained in the Connecticut Fair Employment Practices Act;
· Discussion of the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can involve persons of the same or opposite sex;
· A description of the remedies available in sexual harassment cases including, but not limited to, cease and desist orders, hiring promotion, or reinstatement, and compensatory damages and back pay;
· An advisory that civil and criminal penalties may be imposed against any employee who commits acts of sexual harassment; and
· Discussion regarding sexual harassment prevention strategies.
The Commission's regulations also suggest that the training include the following:
· Information regarding the importance of preventative strategies to avoid the negative effect sexual harassment has upon both the victim and the overall productivity of the workplace due to interpersonal conflicts, poor performance, turnover, and grievances;
· An explanation of the employer's policy against sexual harassment, including a description of the procedures available for reporting instances of sexual harassment and disciplinary actions that can and will be taken against persons who engage in sexual harassment;
· An explanation of the benefits of learning about and eliminating sexual harassment, including a more positive work environment with greater productivity and potentially lower exposure to liability because employers -- and supervisors personally -- have been held liable when it is shown that they knew or should have known of the harassment;
· Experiential exercises such as role playing, coed group discussions and behavior modeling to facilitate understanding of the nature of sexual harassment;
· Information regarding the importance of interpersonal skills such as listening and attempting to understand what a person who is sexually harassed may be experiencing;
· Emphasis on the fact that all complaints of sexual harassment must be taken seriously and that once a complaint is made, it should be reported immediately to officials designated by the employer, and that the contents of the complaint are personal and confidential and are not to be disclosed except to those persons with a need to know;
· Discussion regarding the perceptual and communication differences among all persons and, in this context, the concepts of "reasonable woman" and "reasonable man" developed in federal sexual harassment cases;
· Additional information that harassment or intimidation based on any protected status is illegal, and that supervisory personnel are also responsible for ensuring that these forms of harassment do not occur in the workplace; and
· A question-and-answer period.
Employers are not required to provide the two hour training session for supervisory personnel who have received training after October 1, 1991 that "substantially complies" with the content of the training just described, that was provided in "a classroom setting," and that lasted at least two hours.
The Commission "encourages" employers with fifty (50) or more employees to provide an update of legal interpretation and related developments concerning sexual harassment to supervisory personnel once every three (3) years.
Although there are no penalties associated with failure to provide sexual harassment training under the Act or the Commission's regulations, the Commission will have the authority to order employers to comply with the requirements. More importantly, failure to comply with the Act could expose employers to potentially greater liability with respect to sexual harassment charges. By contrast, compliance with the Act will support a stronger defense in the face of such charges.
Employers who are required to provide training under the Act are also encouraged to maintain records concerning all training provided. The records should include at least the following:
· Documents showing the content of all training given, such as the curriculum;
· The names, addresses, and qualifications of the personnel conducting the training;
· The names and titles of the personnel trained and the date(s) that each individual was trained.
The Commission suggests that all such records be maintained for a minimum of one year, or if a discriminatory practice complaint is filed involving personnel who participated in the training, until such time as the complaint is finally resolved.
The Act requires employers with three or more employees to post notices in "prominent and accessible locations" concerning the illegality of sexual harassment and the remedies available to victims of sexual harassment. The regulations provide a lengthy list of information that must be included in the notices.322
If an employer's liability hinges on the behavior of its supervisory personnel, it stands to reason that no one should be made a supervisor in the first place if there is any record or other indication of a propensity to engage in unacceptable workplace behavior. Thorough pre-hire screening, reference-checking and on-the-job performance evaluations are essential before any individual is hired or promoted.
Once appropriate supervisors are hired and properly trained, employers should motivate these supervisors to take actual or potential misconduct situations seriously and to handle them well. Employers should strongly consider formally evaluating supervisors on their compliance with all human resource policies, including those dealing with misconduct. Indeed, many employers find the best way to motivate supervisors (and demonstrate a strong commitment to providing a safe workplace) is to include this category in the annual review process, which in turn is tied to merit increases.
An employer may want to consider adopting a non-fraternization policy that prohibits supervisor-subordinate romantic relationships. That kind of policy can give employers the ability to separate a romantically involved supervisor and subordinate before the relationship deteriorates and a sexual harassment or favoritism claim is made. A non-fraternization policy must be accurately drafted and implemented, however, to avoid potentially problematic concerns about invasion of privacy and marital-status discrimination.
A consistent comprehensive grievance procedure, for harassment and any other grievance, is indispensable for any employer. It should include provisions for intake and documentation of complaints, confidentiality, response, inquiry and investigation, and follow-up procedures. The grievance procedure should be clear, disseminated to all employees, and put into effect promptly and consistently. A model grievance procedure is contained in Appendix X.
Employers must be alert to any potential "warning signals" that something is amiss in the workplace. Once alerted, prompt and effective action is essential. An employer failing to respond effectively to reported misconduct, or perceived misconduct, could face substantial liability, particularly in the sexual harassment area.
Conducting a prompt investigation of a complaint is more likely to result in a swift resolution of the dispute. Prompt investigations demonstrate the responding party's commitment to determining the truth and protecting its employees. Once a complaint is received, investigators should move quickly, usually within 24 hours to meet with the complainant.
Rumors or "informal or confidential reports" should be taken seriously. Once an employer is advised of a problem, even by rumor or by "confidential" communication, it is put on notice and should investigate. No promise of confidentiality should be made to employees who report; explain that the employer has a strong policy against retaliation and will protect the truthful complainant.
Specific individuals can be designated as "intake" personnel to whom problems may be brought, thereby providing an employee with access to someone other than the immediate supervisor. These individuals should be specially trained in the applicable law and must be perceived as impartial. It may be wise to avoid selecting an individual who routinely serves as management's advocate within the organization. Size and structure of an organization may determine designees. In small organizations, the executive director or president of the board of directors serves in this role.
Designees can play various roles. They may engage in fact-finding, present recommendations to an appropriate manager and counsel both parties. Although they should be sensitive to the need for privacy and confidentiality, no promises can be made. If an employer or court action subsequently arises, all parties should realize that the information might need to be revealed.
Employers should be ready to receive a complaint immediately when contacted by the complainant. Thus, it is important to have an appropriate intake procedure in place. The intake official should encourage the complainant to put the complaint in writing. The complaint should contain as much specific information as possible and be dated and signed by both the complainant and the intake official.
The intake official may or may not be assigned to do the investigation. If the employer's written procedures do not dictate who will take on this responsibility, the employer must carefully select appropriate investigators. Employers should select individuals who are respected by their colleagues. The ability to perform as a witness in potentially subsequent litigation should also be considered. Important skills include the ability to be both empathic and objective and to be able to read non-verbal cues. At least one investigator should be of equal or superior rank as the alleged wrongdoer. This will help to ensure a measure of credibility for the investigation.
The investigator must have both autonomy and power. It must be made clear to all parties that the investigator acts on behalf of the employer in attempting to gather facts and does not represent either the complainant or the alleged wrongdoer. The investigator should be perceived as a neutral party available to both sides. In order to be most effective, he or she should report directly to the administrator who can best determine the appropriate organizational response. The investigator must have sufficient time and dedication to handle the daily responsibilities of the job. The investigator should recognize and express that he or she is not a counselor but should be able to refer any party to the proper resources if a need for counseling is indicated.
Attorney-client privilege issues should be weighed if a lawyer is conducting the investigation since the investigating lawyer may become a witness if litigation arises.
Before beginning interviews or other investigative techniques, the investigators should have in mind - and perhaps have in writing - a list of objectives and a road map of how to achieve them. This should include whom the witnesses may be, the documents to be reviewed and a time frame for completion of the investigation. The plan will, of course, likely require modification as events unfold. A Checklist for Investigation of Misconduct is included as Appendix Y.
Investigators should prepare in advance the nature of the questions they will ask the complainant, the accused and witnesses identified by them, as well as other witnesses selected by the investigators. Investigators should be prepared to address questions such as requests for presence of counsel, use of recording devices, confidentiality, and concerns about retaliation. Interviewers should always attempt to be open-minded during the investigation, concentrate on active listening, and avoid speculating as to the credibility of the witnesses during the course of the interview. Investigators should encourage witnesses to contact them after the interview if they have any further thoughts on the matter. After interviews, the complainant and accused should be kept advised of the status of the investigation.
Maintain confidentiality to the extent possible, but do not guarantee it. Limit the dissemination of information regarding the complaints to those who have a need to know. If applicable, the complainant's immediate supervisor should be warned that there may be a change in the complainant's work performance and no disciplinary action should be taken in response to such a change. The supervisor of the alleged wrongdoer may also need to know to watch for further incidents and to understand why he or she may need to leave work during work hours. It is preferable for the supervisor to hear of the incident from the investigator, who can be expected to tell a measured version of the story.
Warn participants not to discuss the investigation with workplace colleagues or friends. Explain that the company is striving to protect the confidentiality of the matter and participants as best it can, but that the company needs everyone's help. Do not discourage complainants from pursuing claims either internally or in court or with an administrative employer. Explain that the employer has a strong policy against retaliation and will protect the complainant.
While the need for and desirability of confidentiality can only be assessed on a case-by-case basis, employers have a right to expect cooperation and truthfulness in every disciplinary investigation. Investigators should make sure that interviewees are reminded of the importance of being candid and honest throughout the investigation. Any employee's failure to abide by those requirements should be independent cause for discipline, irrespective of the merits of the underlying complaint of misconduct being investigated.
In 2004, the National Labor Relations Board ruled that non-union employees do not have the right to have a co-worker representative present during an interview that might reasonably lead to disciplinary action.323 This ruling reversed the Board's 2000 decision that non-union employees did have this right, the so-called Weingarten324 right. Unionized employees still have the right to representation under Weingarten.
The Weingarten rule applies to any non-supervisory unionized employee interview which may reasonably be believed will give rise to discipline, including interviews in connection with:
· sexual harassment complaints;
· allegations of unlawful discrimination or other unlawful conduct;
· suspicion of violation of workplace policies;
· investigation of insubordinate conduct, workplace violence, or other inappropriate behavior;
· investigations of suspected violations of substance abuse policies; etc.
The employer does not need to inform the employee of any right to representation before beginning the interview.
The right to have a representative present arises when the employer brings an employee into a investigatory interview regarding conduct that could implicate the employee and result in discipline of that employee.
There is no right to representation if there is no possibility that the employee being interviewed will be disciplined as a result of the interview (for example, if the employee is just being told of the result of an investigation or disciplinary action is being imposed).
If the employee requests the presence of a union representative, the employer can grant the request, forego the interview, or offer the employee the choice of continuing without representation or not being interviewed. The employer must allow the employee a reasonable opportunity to speak with a union representative prior to the investigatory interview.
The employer is not required to bargain or make any concessions or compromises with the representative.
The Weingarten rights have profound implications in an employer's investigation of highly sensitive workplace matters, such as sexual harassment allegations. The dilemma for employers is that they must conduct a full, complete, and confidential investigation of these claims. It may not be appropriate for the employer to disclose sensitive and confidential information in the presence of the union representative. Legal counsel should be consulted to assist in balancing employee's representation rights with legitimate management interests.
Whether an employer's investigation of employee misconduct is reasonable will depend on the nature of the employment setting. Public employers and unionized employers must accord traditional concepts of "due process" and "just cause." Even in private, non-unionized workplaces, where formal notions of due process are generally inapplicable, providing some measure of due process can be beneficial. By doing so, employers: (1) can avoid making a mistake by ensuring that the charges are well founded; (2) can evaluate the nature of claims that the accused may bring and begin to prepare a defense to those charges by adducing the accused's evidence; and (3) will follow a regular and fair procedure that will help its defense should litigation follow.
An employer should not wait to act until it decides whether the complaint is valid.324a Employers may need to consider placing employees who are involved in an investigation on temporary leave or temporary transfer if it is necessary to avoid uncomfortable contact between the complainant and the accused. All witnesses need to be assured that steps will be taken to protect their privacy, limit dissemination of information elicited during the investigation, and that they should feel free from retaliation for their role in the process. Many employers have included in their grievance and anti-discrimination policies the requirement that employees have a duty to cooperate with the employer's efforts in investigating misconduct by co-employees.
Investigators must evaluate factual issues based on conflicting accounts of witnesses, lack of eyewitness observations, denials and admissions of wrongdoing, demeanor, and consideration of motive, prior acts, corroborating circumstances. It is usually helpful to weigh the strengths and weaknesses of the accounts of both the complainant and the accused and consider how the facts should be viewed by a neutral third party. Reasons for crediting particular evidence should be noted in the investigator's notes.
Investigations of alleged employee misconduct do not always yield sufficient evidence for the employer to determine who is telling the truth. Nevertheless, if the investigation is inconclusive, this needs to be reported to the complaining party and the accused. A reiteration of the organization's policy by republication and some other remedy sought by the complainant should be considered. Of course, when the result is in favor of the complaining party, discipline of the accused may be appropriate. Termination of employment is not always necessary: warnings, reprimands, transfers, or counseling may also be appropriate under the circumstances. All options should be explored and deliberations should be documented.
It is usually best to meet with the parties involved personally and to give them a verbal and/or written report of the investigators' conclusions. They need not be given an extensive report of all of the investigatory findings. Such a report should be reduced to writing and is more appropriately kept within the employer's legal or human resources files. Consideration should also be given to the extent of documentation of the incident in the employees' personnel files. However, personnel and investigatory files should generally be kept separately.
Preserve all documents, keep them in a separate file marked "confidential", and have them maintained by those who have a need to know of the complaint.
When preparing documentation, bear in mind that employee claims often lead to litigation and that what the employer/investigator commits to paper may take on a greater importance than was intended at the time. Take great care in making the written record. Try to be as factual and complete as possible. Avoid overgeneralizations or mischaracterization. Note dates and times of conversations and the names of those present. If the notes are not readily legible to others, consider having them typed. Consider whether to retain the handwritten originals as proof of what was initially recorded, or whether they should be discarded in the "normal course of business." Include in the file a copy of the policy and procedures that are being followed in the investigation.
An April 1999 opinion letter of a staff attorney with the Federal Trade Commission ("FTC") states that the federal Fair Credit Reporting Act ("FCRA")325 applies to the investigation of a sexual harassment complaint by an outside attorney for the employer. The FTC opinion letter concluded that "outside organizations utilized by employers to assist in their investigations of harassment claims" may be consumer reporting agencies ("CRA's") and, if so, the reports they issue would constitute investigative consumer reports subject to the FCRA. Another FTC staff counsel opinion letter offers options the employer may use to comply with the disclosure requirements of FCRA.326
However, at least one court has criticized these letters, indicating that the FCRA does not apply to outside-attorney investigations.326a Because the attorney “has a relationship of trust, confidence, and confidentiality with his client,” the attorney is acting as the client.326b The court contrasted an attorney-prepared report to a report prepared by a credit bureau or a detective agency, which would constitute a “consumer report.”326c
Nevertheless, assuming sexual harassment investigations by law firms or other outside providers are covered by the FCRA, the following issues would arise during the course of the investigation:
· Written authorization by the alleged harasser could be required before conducting an investigation.327 Of course, requiring an alleged harasser to consent in writing to the investigation could inhibit an employer's ability to take prompt and effective remedial action. Therefore, the FCRA disclosure, Appendix M, should be attached to the Employment Application, AppendPBPHandbook-38.htmix K.
· The report of the investigation could be subject to disclosure to the alleged harasser once the employer determines that it may take adverse action (such as disciplining the alleged harasser) based on the report.328
· The alleged harasser would have the right to confront the CRA about the accuracy of the report. After the employer took adverse action based on the investigation, the employer would have to provide the alleged harasser with an "adverse action notice" setting forth information including the name, address and telephone number of the CRA and the individual's right to obtain a free copy of the report, and his or her right to dispute the accuracy or completeness of the report with the CRA.329
320 State agencies are required by New York State Executive Order No. 19 (1983) to conduct training to "sensitize" all employees about sexual harassment.
321 Conn. Gen. Stat. § 46a-54(15).
322 See Appendix C.
323 IBM Corp., 341 NLRB No. 148 (2004), reversing Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000).
324 The U.S. Supreme Court upheld a decision by the NLRB that union employees have a right to insist on union representation during an investigatory interview by the employer, provided that the employee "reasonably believes" the interview "might result in disciplinary action." NLRB v. J. Weingarten Inc., 420 U.S. 251 (1975).
324a. See 158 Cal. App. 4th 1612 (2008)
325 15 U.S.C. § 1681. See Ch. 41, subchapter III.
326 See FTC staff counsel David Medine's opinion letter dated August 31, 1999, to Susan R. Meisinger, available at http://www.ftc.gov/os/statutes/fcra/meisiner.shtm.
326a FN: Hartman v. Lisle Park District, 158 F.Supp.2d 869, 876-77 (N.D.Ill. 2001)
326b FN: Hartman v. Lisle Park District, 158 F.Supp.2d 869, 876-77 (N.D.Ill. 2001)
326c FN: Hartman v. Lisle Park District, 158 F.Supp.2d 869, 876-77 (N.D.Ill. 2001)