investigation of harassment

A former employee at Uber has made news this week in claiming that she was subjected to sexual question markharassment while working at Uber, and her complaints were not satisfactorily resolved.  I don’t want to get into the judgment of who was possibly right or wrong in this case, but use it as a good opportunity for employers to review the basics of their obligations to investigate when an employee complains.  This Friday’s Five is the first of two posts on employer’s obligations to conduct prompt and effective investigations into harassment complaints.

1. Employers have a duty to conduct investigations.

Employers can be liable under California’s Fair Employment and Housing Act (FEHA) if they “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.”  In addition, Government Code section 12940, subdivision (k), requires employers to take “all reasonable steps to prevent harassment from occurring.”  If the employer fails to take the preventative measures, they can be held liable for the harassment between co-workers.  If the harassment occurs by a manager, the company is strictly liable for the harassment.  If the harassment occurred by a non-management employee, the employer is only liable if it does not take immediate and appropriate corrective action to stop the harassment once it learns about the harassment.

2. The employer may have to take action before conducting the investigation.

Based on the allegations and the facts of the case, as a precautionary measure, the employer should analyze if any immediate steps needs to be taken.  The EEOC set forth examples of precautionary steps that may be necessary include: “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, the employer needs to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”

3. The investigation must be effective.

The California Fair Employment and Housing Commission (FEHC) maintains that employers must “[f]ully and effectively investigate.  The investigation must be immediate, thorough, objective and complete.  Anyone with information on the matter should be interviewed.  A determination must be made and the results communicated to the complaint, to the alleged harasser, and, as appreciate, to all others directly concerned.”

4. The investigation must be immediate.

How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) the employer’s response was held to be prompt where it began investigation on the day that complaint was made, conducted interviews within two days, and fired the harasser within ten days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after plaintiff filed charge with state FEP agency, even though the harasser was eventually discharged.  In Saxton v. AT&T, 10 F.3d 526, 535 (7th Cir 1993) the court found that the investigation was prompt when it started one day after complaint and a detailed report was completed two weeks later.  In Nash v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) the court held that the investigation was prompt when completed within one week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th Cir. 1992) found the investigation was adequate when completed in four days.

5. The investigator must be experienced, unbiased and trusted. 

There is no legal prohibition that internal employees, such as the human resources manager, can conduct investigations into employee’s complaints.  If an internal employee of the company, the investigator does not have to meet any certain training requirements or are they required any particular background.  However, if the case results in litigation, employers should carefully consider who they appoint as the investigator as their background, credentials, and experience will be closely examined in court.

The employee obviously cannot have a conflict of interest or any bias towards the victim or alleged harasser.  Also, the alleged wrongdoer should not have any managerial control over the investigator in the organization.  If the alleged wrongdoer is a high level executive in the organization, then it may be appropriate to hire an outside lawyer versed in conducting harassment investigations to avoid any challenges to the adequacy of the investigation.  The investigator should have some experience in conducting investigations, some background knowledge of the law regarding harassment, understand the appropriate structure of how to conduct the investigation (i.e., who to start with first), and be a person who can communicate well with the parties involved, and if needed can testify confidently to defend the appropriateness of the investigation.

Next week, I will be discussing more of the particulars of how to conduct the investigation, examples of appropriate questions, and how to document the results.