Investigations in the #METOO ERA

1. Investigations in the #METOO ERA Faith Kalman Reyes freyes@verdiogletree.com February 12, 2019

2. Undoubtedly, increase in awareness of need/ability to report harassment via #metoo movement, media reports, training, and other media has resulted in yearly increase in reports and charges of workplace sexual harassment • EEOC reports: “Based on preliminary data, in FY 2018: • -- The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over fiscal year 2017. • -- In addition, charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017. • -- Overall, the EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.” • https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm

3. EEOC tools: • Its own program: “Harassment Prevention and Respectful Workplaces Training” (https://eeotraining.eeoc.gov/profile/web/index.cfm?PKwebID=0x25479b9f&varPage=attendee) • Select Task Force on the Study of Harassment in the Workplace - Report of Co-Chairs Chai R. Feldblum & Victoria A. Lipnic, June 2016 • https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm

4. “Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool - it's been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum - it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer's most valuable resource in preventing and stopping harassment …” • EEOC tools: • Offer guidance on anti-harassment training and policies • Offer guidance on various reporting mechanisms • But, not very helpful on what an investigation looks like other than to say that investigators should be “well-trained, objective, and neutral, especially where investigators are internal company employees”

5. Preliminary thoughts: Investigator needs to be impartial so findings can be reasonably relied upon by decisionmakers (and juries) At the same time, employers want to minimize liability Need to reconcile the two; investigator needs to be neutral and unbiased (even if an employee of the organization). If investigator already has an opinion about the person, outcome, or events, then need a different investigator. Outside counsel a choice, but counsel can’t both investigate and then be an advocate. Outside investigator also a choice. But, expense may be an issue. Also, no guarantee of privilege and privilege may need to be waived to use investigation as a defense. HR is typical investigator. Need to train various individuals to investigate in an impartial neutral manner in case of inability of typical lead investigator to be involved.

6. What is the role of impartial investigator? • Important that investigator be able to conduct investigation in good faith without any • preconceived conclusions and without bias. • This means the ability to be completely independent and able to weigh and evaluate • the evidence without any interference or influence of the employer • (usually meaning the employee’s management team) or its attorneys.

7. Investigator must be free to decide: • Scope of investigation (in other words, the issues to be investigated) though this may be refined or change as a result of the investigation (e.g., one employee reports harassment on one occasion; investigation shows another complainant; or even, in discussing harassment complaint, learn of allegations of fraudulent timekeeping) • Have to deal with this as it arises • Should it be part of the same investigation or a new one? • Is this right investigator to work on new allegations?

8. Investigator must be free to decide: • Who to interview and how/when/where to conduct interviews • But, also need to make sure that 100 employees aren’t interviewed with regard to an allegation that an employee downloaded porn on a computer • Need to “right size” the investigation – important to make sure investigator has the experience/training to exercise this discretion appropriately

9. Investigator must be free to: • -- Review documents, policies and procedures, and determine what additional info the investigator needs to conduct a good faith investigation • -- Obtain statements from reporting employee, respondent, witnesses • inform respondent of the allegations and provide opportunity to respond • determine how to take and keep notes, documents, and other data obtained during the investigation • -- Make independent credibility determinations based on the record obtained during investigation (including interview process) • -- Reach reasoned conclusions at the termination of the investigation citing to/based upon evidence

10. Additional benefit of appropriate investigation = good faith belief usually withstands jury scrutiny may allow summary • judgment in litigation

11. Discussion of investigation components • Assume non-union workforce. If union, other issues, including what’s provided in CBA • and (particularly as to respondent) possible action that could lead to employment termination.

12. Discussion of investigation components • Investigator should communicate to mgt only to the extent needed to obtain documents and contact info for employees to be interviewed (and to interview managers, as needed) • Typically, only investigator and employee should be present (exception: attorney conducts • Interview and complainant is represented by counsel) • Personal cell phone records – can only ask if employee will share them; can’t demand (usually) • Work cell phone records – typically have a policy making these accessible to employer. • Cell records, emails, etc. Make sure to ask only for records that relate to this issue. • Otherwise, could find too much time spent sifting through irrelevant information

13. Discussion of investigation components • Final report • Oral or written? Depends on several factors – infraction, findings, need to preserve confidences or privilege • Probably best to have written report – something decision-maker can point to and rely upon and can be used as evidence, if needed • What do you want in final report? Case by case; some usual components: • Summary of witness interviews/statements and facts • Applicable policies and whether they were or weren’t violated • Sometimes, conclusions as to credibility (if an issue) • Recommendations for systemic changes, policy revisions or training

14. What tell complaining employee/respondent? • EEOC: “The privacy of both the accuser and the accused should be protected to the greatest extent possible, consistent with legal obligations and conducting a thorough, effective investigation.” • Investigation will be conducted (at outset) • Investigation has concluded • Summary of findings (sort of like a “probable cause” or • “no probable cause” summation)

15. What tell complaining employee/respondent? • Outcome – depending on findings and policies. Can share such things as: respondent has been moved to a different department; respondent is no longer with the company. Wouldn’t share personnel information, however (e.g., Respondent has rec’d a final warning) • If Complainant feels retaliation, encourage immediate reporting. Check in • with Complainant thereafter. • Assure witness of no retaliation for cooperating in investigation • (should be done prior to each witness interview)

16. Issues in #metoo investigations • Trauma informed interviews • Build rapport • Begin with broad questions work to more specific • Look for deceptive indicators (contradictory answers, qualifying answer, non-specific denial, refusal to answer, deflecting response or repeating the question, etc.) • Also need to understand that trauma can result in what may look like deceptive indicator – difficulty with memory or inability to provide accurate detailed information, causing suspicion • by fact-finder • How to handle this? • Trauma-Informed Victim Interviewing, OFFICE FOR VICTIMS OF CRIME TRAINING AND TECHNICALASSISTANCE CENTER, https://www.ovcttac.gov/taskforceguide/eguide/5-building-strong-cases/53-victim-interview-preparation/trauma-informed-victim-interviewing/ • https://www.evawintl.org/PAGEID9/Best-Practices/Resources/Victim-Interview • Other sources on-line

17. One example: Trauma-Informed Interviews When conducting an investigation interviewers should keep these trauma reactions in mind. To minimize the likelihood of causing victims to re-live their experience, consider these recommendations: Provide victims the time and opportunity to tell their story once without interruption, recognizing that re-telling it may not be linear, and victims may need additional time to collect their emotions. Once the initial recounting of the event has occurred, ask open-ended follow up questions and encourage the victim to provide as much detail as possible. When asking clarifying questions, choose words carefully, avoid an interrogating tone, and explain reasons for asking the questions. Consider asking sensory questions; victims of trauma often can recount vivid sensory details that may lead to additional descriptions of events. For example, “What did you smell?” or, “Do you remember any specific sounds?” Recollections of sensory details may help a victim recall or clarify event memories. Understand that disclosure of a traumatic event may need to occur over time rather than in a single interview. Be prepared to suspend the interview or allow time for follow-up conversations. This approach can help victims feel safe, empowered, and able to express difficult emotions, which, in turn, can help the investigator gather a detailed picture of events. https://www.edurisksolutions.org/blogs/?Id=2772

18. Issues in #metoo investigations • Give interviewee choice at beginning – where to meet, where to sit, what to • call them, what to drink, etc. • Ask open-ended questions – in particular, let employee tell story w/o interruption • the first time around. It may not follow a timeline. • Then, ask follow up questions to seek detail -helpful to tell employee why you are • asking for the details. • Determine if you should conduct interview in one or more sitting.

19. Investigator makes credibility analysis. How? • Don’t base it on very brief expressions on the interviewee’s face or based on how we read body language. We aren’t experts in this field, so don’t rely on it. Many people would be nervous meeting with HR, etc. • Look instead at whether the statements appear to be credible on their face. • Does the witness have any motive to falsify or bias the statements? • Is there any independent corroboration? How does the witness respond to these documents/testimony that may contradict/confirm? • Did the witness omit something material? (But be careful when dealing with trauma-informed interviewing) • Example – you asked for all relevant text messages, and witness omits a key one • Is the testimony consistent with prior testimony, documents, etc?

20. Investigator makes credibility analysis. How? • Don’t base it on very brief expressions on the interviewee’s face or based on how we read body language. We aren’t experts in this field, so don’t rely on it. Many people would be nervous meeting with HR, etc. • Look instead at whether the statements appear to be credible on their face. • Does the witness have any motive to falsify or bias the statements? • Is there any independent corroboration? How does the witness respond to these documents/testimony that may contradict/confirm? • Did the witness omit something material? (But be careful when dealing with trauma-informed interviewing) • Example – you asked for all relevant text messages, and witness omits a key one • Is the testimony consistent with prior testimony, documents, etc?

21. Investigator makes credibility analysis. How? • Is the testimony consistent with prior testimony, documents, etc? • What is in the file already/what is this person (particularly the respondent’s) past history? • How cooperative is this witness? What is their general reputation for honesty? (For example, is there discipline in the file for something related to credibility?)

22. Issues arising in the timeframe between reporting and conclusion: • Does everyone remain in the workplace during investigation? • First, who makes this decision – the investigator or someone else? (Answer is usually case-specific and turns on many things, such as nature of allegations, can someone work remotely, are there risks to the organization in having Complainant/Respondent in workplace?) • Tend not to place Complainant on leave, even paid, as it appears to be retaliatory. But, if this is a particularly upsetting situation, it can be offered to the Complainant. Be sure to explain it’s not disciplinary (and, if it’s the Complainant’s choice, that too should be emphasized along with ability of Complainant to change her mind) • Leave paid or unpaid? (Typically, paid); approximate length; expectations for remote work; communications with other employees while on leave, etc.) • What/How to communicate to other staff why person is on leave?

23. Demonstrates why investigations are usually “prompt,” regardless of the legal requirement that they be so (should be a prompt investigation; “prompt” differs with nature of allegations) Prompt does not mean giving short shrift to investigation.

24. The #Metoo overcorrection: • “Zero tolerance” = no discretion, even based on alleged nature of offense. • Prior allegations against white straight male = no term; similar or less offensive current allegations against black gay female = termination. Leads to its own issues • Many victims don’t want respondent to be terminated – educated, corrected, but not terminated: • “Why Women Are Worried About #MeToo”, https://www.vox.com/2018/4/5/17157240/me-too-movement-sexual-harassment-aziz-ansari-accusation

25. “[W]hat we found in both our focus groups and our survey was that by and large, #MeToo supporters are also skeptics. They have considered — sometimes more than the average woman — the possible negative outcomes of the movement, and the ways the movement could be compromised or fail. And their thinking has led them not to calls for men to be summarily fired with no investigation or recourse, but to complex conversations about what a fair workplace would look like for men and women.”

26. Off duty conduct • A tricky area • Private employers are not subject to the First Amendment • Ask: • Is offender a current employee? • Is the complainant a current employee? • What is the offense? Did it occur while alleged offender was employed here? • How long ago? • What is the nature of the offense? • Is there any information to suggest this may be bleeding into workplace? • No bright-line answers or rules • Same for “stale” conduct – fact based analysis

27. Resources: https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm https://eeotraining.eeoc.gov/profile/web/index.cfm?PKwebID=0x25479b9f&varPage=attendee https://www.eeoc.gov/policy/docs/harassment.html https://www.ny.gov/combating-sexual-harassment-workplace/employers https://www.ovcttac.gov/taskforceguide/eguide/5-building-strong-cases/ 53-victim-interview-preparation/trauma-informed-victim-interviewing/ https://www.evawintl.org/PAGEID9/Best-Practices/Resources/Victim-Interview https://www.evawintl.org/PAGEID19/Best-Practices/Resources/Trauma-Informed https://www.vox.com/2018/4/5/17157240/me-too-movement-sexual-harassment-aziz-ansari-accusation https://www.michaelbest.com/Newsroom/166347/Employment-Law-Alliance-Survey- Takes-American-Pulse-on-MeToo-Workplace-Harassment

28. New California laws, FYI: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB820 (“This bill would prohibit a provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. The bill would make a provision in a settlement agreement that prevents the disclosure of factual information related to the claim, as described in the bill, entered into on or after January 1, 2019, void as a matter of law and against public policy.”) https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180SB1343 (“This bill would instead require an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified”).