By Neil S. Sarkar, Esq.
In a recent U.S. 6th Circuit Court of Appeals Case (which covers Ohio employers), an employer was found liable for sexual harassment for permitting male-on-male bottom slapping that the employer dismissed as mere “horseplay.” Unfortunately, it appears that when workplace harassment complaints were made, the employer’s investigation did not include taking any written statements from those interviewed, nor was a formal investigation report made. Worse still, no prior allegations of prior misconduct by the alleged harasser were investigated. Flash forward: a workplace harassment lawsuit is filed. The employer tries to defend case on a theory that such conduct is “horseplay.” The U.S. 6th Circuit Court of Appeals affirmed a $300,000 jury verdict in favor of the male employee bottom-slapped by his co-worker. This victim of “male-on-male” sexual harassment sued his employer for letting it happen. The employer’s own internal investigation in this case is telling.
This case reads as a cautionary tale for what happens when internal investigations of workplace harassment complaints are mishandled. When reading this, it is my hope you employers are all saying to yourselves “I don’t want to be in that employer’s situation.”
With this in mind, here are some key points for properly investigating such complaints. Employers must always be prepared to deal proactively with workplace harassment complaints in all forms. Having a soundly drafted policy against workplace harassment is necessary, but not enough. Employers must have properly trained supervisors always ready to address any harassment complaint, and promptly and thoroughly investigate all allegations of harassment (whatever form it takes).
Some key tips:
- Promptly and Thoroughly Investigate. Always promptly and thoroughly investigate all complaints of alleged harassment, however silly or small any may seem; indeed, the above recent case reaffirms that sexual harassment can occur even when the conduct is directed towards members of the same gender. Don’t put off investigating complaints until the situation gets out of control. Immediately meet with the complaining party and take him or her seriously. Assure him or her that you will strive to keep the investigation confidential, but do not guarantee the utmost confidentiality. You will likely need to share the investigation results, including specific allegations, with the alleged harasser. Find out who was involved; what happened and where; and if other witnesses were present. Also, ask the complaining party to put his or her complaint in writing and sign the statement, if appropriate.
Then, under appropriate circumstances, meet with the alleged harasser. Ask him or her the same questions you do the complaining party. Explain the nature of the complaint and your legal duty to conduct a prompt and thorough investigation. Indicate you will strive to keep the investigation confidential but utmost confidentiality cannot be guaranteed. Also make sure he or she understands that any retaliation against the complaining party and/or alleged victim and/or other witnesses will result in discipline, up to and including immediate termination of employment.
Then, in appropriate situations, meet with each additional witness as soon as possible. If feasible, interview each of them thoroughly, obtain written statements for each of them to sign, and advise them all to keep the incident and investigation confidential.
Please note that appropriate circumstances may certainly warrant changing the order of those you interview. For example, you may have previously found the alleged harasser to have committed harassment, or the harassing conduct may be largely undisputed or egregious. In those situations, after interviewing the victim, then consider interviewing the witnesses, and then the alleged harasser. That way, in such situations like those above, this approach arms you as the investigator with as much information as possible before you sit down with the alleged harasser, who may most likely be the one to try and cover up possible harassment.
- Keep the alleged Harasser Separate from the alleged victim. You should always be sensitive to separating the complaining party from the alleged harasser while the investigation remains ongoing. Otherwise, you could be sued not only for letting additional harassment happen, but also for retaliation. This is because any reports of alleged harassment are deemed “legally protected activity” and once the employer is aware of this, the employer must not take adverse employment action against the employee, including allowing him or her be subject to any further negative treatment or harassment by the alleged harasser. Separating the alleged victim from the alleged harasser makes this a non-issue. Yet, to be clear, the person to be separated should be the alleged harasser – not the alleged victim.
- Ensure the investigation is always fair and unbiased. That is, do not conduct your investigation with pre-conceived notions of what the outcome should be based on what you’re suspecting. Instead, interview all involved parties, keep detailed notes, and ask open-ended questions (including being sufficiently persistent and probing when necessary, lest you as an employer risk an argument that you were on notice of the harassment problem yet failed to conduct a sufficiently thorough investigation to bring the potential harassment to light). Also, always focus on what the witnesses to the incident actually personally saw or heard. And, coming back the requirement of conducting a thorough investigation, remember that when asking questions during the course of your investigation, you may always go back and talk to witnesses a second or third time if you wish.
- Be Mindful of Body Language and Past Circumstances. In making credibility assessments as to whether harassment did, in fact, occur, keep in mind the body language of the witness, whether anyone has a motive to lie and whether the account can or cannot be verified with independent witnesses or other evidence. Also, determine if the alleged harasser has a past history of harassment or similar misconduct. Regrettably, the latter factor was overlooked by the employer in the above 6th Circuit case.
- Take Appropriate Action. If you determine that harassment occurred, then consider the appropriate discipline to administer; the main factor should usually focus on what corrective action is needed to restore the alleged victim’s right to a harassment-free workplace. Other factors may include the severity of the harassment; and whether it is the harasser’s first offense.
- Remember Your Ongoing Duty to Maintain a Harassment-Free Workplace. Finally, and perhaps most important, always remember that you as an employer have a continuing legal duty to provide a harassment-free work environment to your employees. Never disregard any complaint, no matter how busy you are or how trivial it may sound.
- A Special Note to Public Sector Employers: Public employers must take additional considerations into account when conducting investigations. Ohio Revised Code Section 9.84 allows any person appearing as a witness before a public official, board, etc. to be represented by an attorney. For investigations of a more serious nature, public employees are entitled to notice that they are being questioned in the course of an investigation. Under an Ohio Supreme Court case, In re Matter of Civil Service Charges & Specs. Against Piper, 88 Ohio St.3d 308 (2000), employees are entitled to a Piper notice which notifies them when and where the interview will be and that they have a right to have union or legal representation present at the interview.
During the investigative interview, a public employee cannot refuse to answer a question honestly unless the employee believes that the answer will incriminate him or her. Public employees have a right to not be forced to either incriminate themselves under the U.S. Constitution or lose their jobs by refusing to tell the truth to their public employer. Employee can be offered a Garrity warning (Garrity v. New Jersey, 385 U.S. 493 (1967)), which guarantees that anything they say in the investigative interview cannot be used against him/her in any criminal proceeding. It is imperative that any information learned in the investigation pursuant to a Garrity warning not be made available to law enforcement so as to taint law enforcement’s ability to pursue the matter criminally.
For more information on workplace investigations or for form copies of a Piper notice and/or Garrity warning, please contact Neil Sarkar at email@example.com, Tami Hannon at firstname.lastname@example.org, or Stacy Pollock at email@example.com.
For questions or more information on “Protecting Your Workplace (and You): Tips for Effective Workplace Harassment Investigations,” contact:
Neil S. Sarkar – MRR Cleveland