What are the obligations when an employee steps forward with a sexual harassment complaint? In this episode of The Workplace, investigations expert Lisa Buehler joins CalChamber Executive Vice President and General Counsel Erika Frank to talk about emerging issues and best practices when conducting a workplace sexual harassment investigation.
Under Title VII of the Civil Rights Act and the California Fair Employment and Housing Act (DFEH), employers are obligated to conduct an internal investigation whenever they receive a complaint of sexual harassment or discrimination, Buehler explains.
“Employers have to investigate, find out what happened, reach conclusions and take remedial actions if necessary on those complaints,” she says.
But while employers are obligated to investigate harassment and discrimination claims, it’s also a good idea to investigate all complaints, including “Bob was mean to me.”
“Many of those claims can later turn into harassment or discrimination complaints, and the employer wouldn’t know until long after the fact,” Buehler says. “…Investigations are good ways to resolve conflicts in the workplace when it’s outside of the control of the manager or the supervisor.”
Moreover, an employer doesn’t need to conduct the “Cadillac” of investigations if the “Chevy” is good enough, Buehler says. Employers should gauge their response to the level and nature of the complaint and against whom the allegations are made. For example, a sexual assault claim against a company executive is going to be a bigger deal than a complaint about coworkers not getting along, she explains.
It’s best that employers conduct investigations internally whenever they can, Buehler recommends. If for any reason an employer has to bring in an external party to conduct the investigation, it’s a good idea to bring in a neutral party and not the company’s regular counsel, Buehler adds.
It’s very important to make factual findings on what happened, Buehler stresses, even in scenarios where it’s a “He said, she said,” situation.
“You can always make findings; you just have to look at the evidence and weigh it appropriately,” she says.
Confidentiality can be a big issue during investigations, and everyone from witnesses to the complainant often are concerned about maintaining confidentiality. And while the investigation process should be as confidential as it can be, it’s also important to be transparent, Buehler explains.
“It’s not fair to the complainant or the respondent to do it in an anonymous manner or to do it in a way that’s so confidential that people are not given a full and fair opportunity to respond to the complaints,” she says.
Frank mentions that one of the things she noticed when the #MeToo movement started was that a number of the misconduct claims were old. Buehler acknowledges that old complaints are challenging for employers and to investigators, especially since documentation has sometimes already been purged or employees have left the company. Nevertheless, there is no technical statute of limitations on complaints, and employers are still obligated to respond and take remedial action, she stresses.
Still, it can be beneficial to conduct investigations on stale complaints because employers can uncover ongoing behavior, behavior that has never been addressed or a tolerance of relaxed behavior in some departments, Buehler adds.
It’s becoming harder and harder to define what “off duty” is, Buehler tells Frank. In corporate settings, workers can eat, sleep and play, all in the same building, she comments.
For nonmanagerial employees, employers cannot really address conduct that happens off duty unless it spills over into the workplace, Buehler explains. Managers, however, are in a managerial capacity 24 hours a day. So if a manager goes to a bar and misbehaves, an employer can address that behavior as the manager is not off duty and is representing the company 24 hours a day, she says.
In closing the podcast, Buehler outlines some of the best practices employers should keep in mind when conducting a workplace investigation:
- Always try to make factual findings in your investigation and insist that outside investigators do so. Don’t walk away from an investigation saying, “I don’t know what happened.”
- Do your investigations promptly. It’s harder to conduct an investigation when people’s memories have failed.
- Be fair and be thorough.
- Don’t get bogged down by the idea that you have to know everything that happened. It’s not a criminal standard and “we are not mind readers,” Buehler says. Not knowing everything that happened doesn’t mean you can’t reach a good conclusion, she emphasizes.