Investigating Sexual Harassment in Volatile Times

InvestigatingSexual Harassmentin Volatile TimesJohnson County Bar AssociationCity Center Square, Lenexa, KansasNovember 8, 2018 Presented by Bridget RomeroChair, Employment & Labor Tedrick Housh Partner, Employment & Data Privacy

Origins of Sexual Harassment Title VII of the Civil Rights Act does not explicitly prohibit sexual harassment. Catharine A. MacKinnon, “Sexual Harassment of Working Women,” 1979 Sexual harassment was deemed a form of sex discrimination in Meritor Savings Bank v Vinson,106 S. Ct. 2399 (1986)

What is Sexual Harassment? Unwelcome sexual advances Requests for sexual favors or Other verbal or physical conduct of a sexual nature

Quid Pro Quo Occurs when an individual’s submission to or rejections of unwelcome sexual conduct is used as a basis for employment decisions affecting the individual. • Examples of Adverse Actions: • Hiring • Firing • Promotions • Awards • Transfers • Disciplinary action

Hostile Work Environment Occurs when: unwelcome sexual conduct unreasonably interferes with an individual’s job performance or creates an intimidating, hostile, or offensive working environment. No specific adverse action or tangible economic job consequences are required. Submitting to unwelcome conduct does not make it consensual.

#metoo

Promising Practices for Preventing Harassment 1oz 1lb

Assess Risk Factors • Homogenous workforces • Young workforces • Workplaces with “high value” employees • Isolated/decentralized workplaces

Essentials to Effective Prevention Comprehensive Anti-Harassment Policy Accessible Complaint System Anti-Harassment Training

Comprehensive Harassment Policy Applies to All Encourage Reporting (and How To Report It) How Employer will Respond (Investigation, Corrective Action)

Anti-Harassment Training • Regular • Interactive • Cover all aspects • Prohibited activity • Complaint process • Investigation • Retaliation, etc…

Anti-Harassment Training(Managers and Supervisors) How to handle “Complaints” Confidentiality Role in Investigation No Retaliation

Leadership & Accountability • Be fully supportive and show it • Culture set from the top • Allocate sufficient resources

EEOC Proposed Enforcement Guidanceon Unlawful Harassment https://www.regulations.gov/document?D=EEOC-2016-0009-0001 • VI. PROMISING PRACTICES 68 • A. Leadership and Accountability 69 • B. Comprehensive and Effective Harassment Policy 70 • C. Effective and Accessible Harassment Complaint System 72 • D. Effective Harassment Training 73

Status of EEOC Proposed Enforcement Guidance on Unlawful Harassment • A proposed Enforcement Guidance was published on Jan. 10, 2017. • Requires that employers implement programs to combat “known or obvious risks of harassment.” • EEOC updated the Guidance in November 2017, after Harvey Weinstein and the “MeToo movement. Sent to the White House and OMB. • The OMB has yet to issue clearance, and has sent it to DOJ for review. • White House has not approved it, though as an independent agency, the EEOC does not need it. • In January, 2018, DOJ stated that DOJ attorneys may not longer rely on agency guidance in suits. • In July, 2018, DOJ stated that sex discrimination does not cover sexual orientation or gender identity. • Confirmations to the EEOC Commission seats are tied up.

New York State Mandatory Annual Sexual Harassment Training • Beginning in October 2018, employers must adopt a sexual harassment prevention policy and training for its NY employees. • No "zero tolerance" policies, consistent with EEOC Guidance. • Sexual harassment also includes harassment on the basis of "self-identified or perceived sex." • Investigations are to be kept confidential to the extent possible. • Removes the 30-day requirement to finish complaint investigations. • An investigation must be "prompt and thorough, commenced immediately and completed as soon as possible.“ • Training programs to be released by NYC and NYS. https://www.ny.gov/programs/combating-sexual-harassment-workplace

California Mandatory Annual Sexual Harassment Training • Require employers with 50 or more employees and all public entities to provide sexual harassment and abusive conduct (bullying) prevention training for all supervisors. • At least 2 hours of training every 2 years. • 50 employees includes f/t, p/t, temps and contractors including employees outside California. • Classroom, e-learning, live webinar, other methods possible. • Maine and Connecticut also have statutes like California and NY.

The Perils of Not Investigating Kimzey v. Walmart Stores, 107 F.3d 568 (8th Cir. 1997) • Employee complained that her supervisor and store manager made lewd jokes about her breasts, and that the supervisor tried to kiss her. • Employer did not investigate. • Verdict for plaintiff of $1 in economic damages, $35,000 for emotional distress, and $50,000,000 in punitive damages (later reduced to $5,000,000).

The Perils of Not Investigating Axel v. Fields Motorcars of Florida, Inc. (M.D. Fla. Feb. 22, 2017) • Auto dealer had 70+ year old employee with cancer. • Upon his return, VP & GM fired him for breaking a rule by forging a document giving his son access to auctions – ten years earlier. No investigation or review. • Employee claimed the document had been approved by management, and there was no evidence the son had used it. • $4.5 million verdict: $680k lost wages, $600k pain and suffering and $3,220,000 in punitive damages.

The Perils of Poorly Investigating Gyulakian v. Lexus of Watertown, Inc. (Mass. 2016). • Auto dealer GM investigated harassment allegations but “honestly did not believe” a finance manager who claimed her supervisor touched her buttocks, tried to throw coins down her blouse and suggested they sleep together so he could see her breasts. • GM interviewed several people, but in the finance department, only the supervisor, for fear of undermining him. • GM said comptroller told him that supervisor never had any prior issues. At trial, comptroller said GM never asked. • Massachusetts Supreme Court upheld $40k in actual damages and $200k in punitive damages.

Good Investigations Can resolve issues quickly and at the lowest possible level. Shows that you expect employees to comply with policies. Gives the employees involved fair treatment, no matter what the outcome. Assists in defending a suit or charge, particularly under the Farragher-Ellerth Defense, which can excuse or limit liability of an employer that reacts promptly and effectively in response to a complaint made pursuant to a disseminated policy.

Choosing the Investigator Inside or Outside? Attorney or Not? Training in interviewing witnesses and evaluating credibility Not in the chain of command of the employees or the investigator Familiar with and follow employer’s investigation policies

Initial Steps Determine the Scope of the Complaint Gather Documents Hear from the Complainant Hear from the Accused Harasser Hear from witnesses, including those identified by the parties Hear from the Supervisor or Manager

Interview Whom? Interview all principals Seek out witnesses with direct eyewitness testimony Avoid witnesses without personal information Avoid office sweep interviews

Interview How? Prepare questions beforehand Ask open-ended questions, follow-ups, and questions about motive Avoid interrupting Maintain eye contact with interviewee as much as possible Repeat some questions differently later in the interview, for inconsistencies Be wary of pat or non-answers, or questions to you the interviewer instead

Record of Interviews Your Own Notes or Signed Witness Statements? Audio or Video Recording or Not?

Interview Specifics Get specifics, especially for arguably sexual conduct. Identify the timing and frequency of conduct and comments. Ask whether the witness viewed the conduct as unwelcome. Why or why not? When did the Complainant first raise the issue, and to whom? Did the Alleged Harasser do anything if confronted with his or her behavior? Did the Complainant suffer any adverse action?

“Closing the Loop” Questions Are there any documents, e-mails, etc. that you think I should review? Are there any persons that you know of who have relevant information? What information do you think they have? Have we discussed all of the key information relating to this claim/your response?

Corrective Action Options Oral or written warning or reprimand Additional anti-harassment training with post-training monitoring Transfer or reassignment Demotion Reduction of wages Suspension Termination

Thank you!! Bridget RomeroChair, Employment & Labor bromero@lathropgage.com Tedrick Housh Partner, Employment & Data Privacy thoush@lathropgage.com

Investigating Sexual Harassment in Volatile Times