Sexual Harassment:

1. Sexual Harassment: Recognizing and Preventing Sexual Harassment Cornell Dillard Chief Human Relations Officer

2. Training Objective • Know the Law • Investigative Techniques • Importance of Confidentiality • Importance of Case Closure

3. The Law • Federal Statutes The 1964 Civil Rights Act Title VII

4. The Law • Title VII does not explicitly prohibit sexual harassment, but the U.S. Supreme Court has made clear that it is a form of unlawful sex discrimination in violation of the Civil Rights Act.

5. The Law • State Statutes State Human Rights Acts

6. The Law • Some sexual harassment may violate state fair employment practices laws and may serve as a basis for a tort claim.

7. The Law • Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) • The Supreme Court decided that Title VII applied to same-sex harassment cases where the plaintiff can prove that the harassment is because of the plaintiff’s sex. The Court found that Title VII prohibits harassment when the behavior is severe or pervasive enough to create an objectively hostile or abusive work place.

8. The Law • Some state and local jurisdictions prohibit discrimination based on sexual orientation. • For example, the Sexual Orientation Non-Discrimination Act of New York State prohibits discrimination on the basis of actual or perceived sexual orientation (heterosexuality, homosexuality, bisexuality, asexuality) in employment, housing, public accommodations, education, credit, and the exercise of civil rights.

9. The Law • Municipal Codes/Ordinances • City rules • County codes

10. The Law • Employment Policy Manual • Employee’s Handbook • Department’s Policies/Rules • Union/Employment Contract

11. Investigative Techniques • Learn all the facts! • Identify the Principals • Complainant or Harassee • The Accused or Harasser • Witnesses • identified by the Complainant • identified by the Accused • The Supervisor or Manager

12. Investigative Techniques • Interview all principals • Make a list of sub-candidates identified by principals • Target individuals for an interview that may offer direct testimony (eye-witness accounts) • Avoid individuals with second-hand information from a third party • Avoid ‘office sweeping’ interviews!

13. Investigative Techniques • Listen to everything! • Avoid interrupting the interviewee • Try to maintain eye contact with interviewee as much as possible • Avoid nodding and making emotional facial expressions • Resist the ‘mmhmm’ and ‘humph’

14. Investigative Techniques • Ask questions! • Write down questions beforehand • Repeat the question in a different way later in the interview • Look for inconsistency • Avoid ‘fill in the blank’ responses • Don’t settle for the ‘You know?…’ • Don’t let the interviewee turn YOU into the interviewee! • Be careful of the “answer the question with a question” responses

15. Confidentiality • PRIVACY • DEFAMATION • QUALIFIED PRIVILEGE

16. Confidentiality PRIVACY • When reviewing the legality of investigations, the law generally balances an employer’s interest in maintaining a safe and efficient work force against the employee’s right to be free from unreasonable invasions of privacy. Confidentiality

17. Confidentiality Under the common law, there are three types of privacy rights that are directly relevant to investigations: Confidentiality

18. 1. Public disclosure of private facts(informational privacy) • The right to privacy includes the right to keep certain personal information from public knowledge. Informational privacy prohibits employers from disclosing information that would be offensive to a reasonable person and not of any legitimate concern to the public. Confidentiality

19. EXAMPLE • If an investigation publicizes information about an individual’s private affairs, such as having AIDS or being HIV-positive, the individual may sue for an invasion of privacy.

20. 2. Placing in a false light(false light privacy) • If an investigating employer assigns false attributesor associations to the targeted employee, and these false attributes are broadcasted to a large number of people, there may be recovery for invasion of privacy. Confidentiality

21. EXAMPLE • Wrongly labeling someone a racist or a child molester may be enough to create liability for false light privacy, even if there is no injury to the employee’s reputation. Confidentiality

22. 3. Intrusion into another’s privacy(autonomy privacy) • The right to privacy protects employees’ physical and psychological “space.” Basically, unless there is a legitimate business purpose, employees have a right to be left alone. Accordingly, any intrusion of an employees’ physical environment or psychological liberty could be a common law invasion of privacy. Confidentiality

23. EXAMPLE • No Federal laws offer protection against discrimination of smokers, but several states have passed laws prohibiting employers from refusing to hire smokers. • Also, employees cannot be prevented from smoking when off-duty or on break. • But, states and municipalities may regulate smoking in public areas. Confidentiality

24. DEFAMATION of CHARACTER • During an investigation, damaging and perhaps false information may be obtained. Divulging false information may result in civil liability for defamation of character. Confidentiality

25. Defamation typically means: • A false oral or written statement; • Communicated to a third party; • That injures an individual’s reputation by exposing the person to hatred, contempt or ridicule, or by causing the person to be shunned or avoided. Confidentiality

26. Qualified Privilege • An employer has a qualified privilege to divulge even defamatory information to persons who “need to know” the information. Example: • The person in charge of the investigation • Disciplinary committee • Appointing authority (Director/Deputy Director) • Legal unit

27. Qualified Privilege • The privilege does not apply to defamatory information that is disclosed in bad faith or that lacks credibility.

28. Case Closure QUALITY OF INVESTIGATIONS: Baldwin v. Blue Cross/Blue Shield of Alabama, 480 F.3d 1287 (11th Cir. 2007). • Employee second-guessed adequacy of employer’s investigation into her complaint of harassment.

29. Case Closure • HELD: Employer is not required “to conduct a full-blown, due process, trial-type proceeding in response to complaints of sexual harassment. All that is required of an investigation is reasonableness in all of the circumstances and the permissible circumstances may include conducting the inquiry informally in a manner that will not unnecessarily disrupt the company's business, and in an effort to arrive at a reasonably fair estimate of truth.” Baldwin at 1304

30. Case Closure • Courts may defer to the business judgment when evidence is presented that demonstrates an employer conducted a reasonable investigation in good faith. • Cronquist v. City of Minneapolis, 237 F.3d 920 (8th Cir. 2001)

31. Case Closure • Federal Courts are not in the business of second-guessing companies’ internal investigations. • Hutson v. McDonnell Douglas Corp., 63 F. 3d 771 (8th Cir. 1995) • The concept of a reasonable internal investigation was recently upheld in Adams v. O’Reilly Automotive, Inc., 2008 WL 3540588 (8th Circuit 2008)

32. Case Closure • Take it Seriously! • Avoid the risk of treating every complaint as routine and simply a dress rehearsal • Promptly Investigate! • If you have several pending cases, simply notify the complainant that you received the complaint and that he or she will be contacted in the near future. • Do follow-ups to remind the complainants that their cases are important and that the case is still active.

33. Case Closure • Create Written Record(s) • Always document your conversation. Everything should be ‘on the record.’ • This is especially true when conducting telephone interviews • Cite laws/statutes/policies in your report • This allows reviewers (courts/executives/independent investigators) to know if laws have been broken and/or rules violated.

34. Case Closure • Include anti-retaliation communication • Inform complainants to follow up with you if they sense retaliation. • Actively remind the subject of the complaint that any conduct of a retaliatory nature toward the complainant is strictly prohibited.

35. Case Closure • WHAT WOULD THE COURT SAY ABOUT YOUR INVESTIGATION?

36. Electronic Discovery Rules • Effective December 1, 2006. • Requires parties in federal litigation to preserve electronic evidence. • Requires parties to produce electronically stored information that is “ordinarily maintained or reasonably usable.” • Failure to preserve and produce electronic discovery might result in sanctions and/or adverse inference instructions at trial.

37. Conclusion • BE SENSITIVE yet IMPARTIAL • AVOID APPEARANCE OF BEING A RUBBER STAMP FOR MANAGEMENT • BE INFORMED • Know the statutes/policies/codes • Review the organizational chart of principal parties • BE RESPECTFUL • ASK THE RIGHT QUESTIONS

38. QUESTIONS? Cornell Dillard Chief Human Relations Officer Cornell.dillard@dolir.mo.gov Missouri Department of Labor and Industrial Relations 573-751-1339