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Sexual Harassment: A Guide to Working a Complex and Sensitive Investigation Cornell Dillard Chief Human Relations Officer.

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Presentation on theme: "Sexual Harassment: A Guide to Working a Complex and Sensitive Investigation Cornell Dillard Chief Human Relations Officer."— Presentation transcript:

1 Sexual Harassment: A Guide to Working a Complex and Sensitive Investigation Cornell Dillard Chief Human Relations Officer

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

3 The Law Federal Statutes Federal Statutes The 1964 Civil Rights Act Title VII Such as:

4 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. 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. The Law

5 State Statutes State Statutes State Human Rights Acts Such as:

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

7 Oncale v. Sundowner Offshore Service, Inc., 523 U.S. 75 (1998) Oncale v. Sundowner Offshore Service, 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. But if an employee is harassed solely because he or she is gay, that does not violate Title VII, since the Act does not prohibit discrimination based on sexual orientation. 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. But if an employee is harassed solely because he or she is gay, that does not violate Title VII, since the Act does not prohibit discrimination based on sexual orientation. The Law

8 Some state and local jurisdictions prohibit discrimination based on sexual orientation. 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. 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. The Law

9 Municipal Codes/Ordinances Municipal Codes/Ordinances The Law City rules County codes Such as:

10 The Law Employment Policy Manual Employment Policy Manual Department’s Policies/Rules Employee’s Handbook Union/Employment Contract Such as:

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

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

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

14 Ask questions! Ask questions! Repeat the question in a different way later in the interview Repeat the question in a different way later in the interview Look for inconsistency Look for inconsistency Avoid ‘filling in the blank’ responses Avoid ‘filling in the blank’ responses Don’t settle for the ‘You know?…’ Don’t settle for the ‘You know?…’ Don’t let the interviewee turn you into the interviewee! Don’t let the interviewee turn you into the interviewee! Be careful of the “answer the question with a question” responses Be careful of the “answer the question with a question” responses

15 PRIVACY PRIVACY DEFAMATION DEFAMATION QUALIFIED PRIVILEGE QUALIFIED PRIVILEGE Confidentiality

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. 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.

17 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. 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.

19 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. 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 If an investigating employer assigns false attributes or 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. If an investigating employer assigns false attributes or 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. 2. Placing in a false light (false light privacy)

21 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. 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.

22 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. 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. 3. Intrusion into another’s seclusion (autonomy privacy)

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

24 DEFAMATION of CHARACTER Confidentiality During an investigation, damaging and perhaps false information may be obtained. Anyone who divulges information gained in an investigation to others, including co-workers, office staff and personal friends, risks liability for defamation of character. During an investigation, damaging and perhaps false information may be obtained. Anyone who divulges information gained in an investigation to others, including co-workers, office staff and personal friends, risks liability for defamation of character.

25 Defamation typically means: A false oral or written statement; A false oral or written statement; Communicated to a third party; 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; and 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; and That is unprivileged. That is unprivileged.

26 An employer has a qualified privilege to divulge even defamatory information to persons who have a demonstrated “need to know” the information. An employer has a qualified privilege to divulge even defamatory information to persons who have a demonstrated “need to know” the information. Qualified Privilege The person in charge of the investigation The person in charge of the investigation Disciplinary Committee Disciplinary Committee Appointed authority (Director/Deputy Director/Division Directors) Appointed authority (Director/Deputy Director/Division Directors) Legal Unit Legal Unit

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

28 Case Closure Courts often look to the thoroughness of an investigation when deciding the extent of an employer’s liability. Courts often look to the thoroughness of an investigation when deciding the extent of an employer’s liability.

29 Claim led to a $17 million judgment against a California aircraft manufacturer. Claim led to a $17 million judgment against a California aircraft manufacturer. The HR representative who investigated the claim was chastised by the court for not investigating further. The HR representative who investigated the claim was chastised by the court for not investigating further. The HR only focused on the original written complaint submitted by the complainant. Booker v. Budget Rent-A-Car Systems, 17 F. Supp. 2d 735 (M.D. Tenn. 1988).

30 Take it Seriously! Take it Seriously! Avoid the risk of treating every complaint as routine and simply a dress rehearsal Avoid the risk of treating every complaint as routine and simply a dress rehearsal Case Closure Promptly Investigate! 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. 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. Do follow-ups to remind the complainants that their cases are important and that the case is still active.

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

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

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

34 Be Professional! Be Professional! Avoid Avoid T.V Detective T.V Detective Super Detective Super Detective Conclusion

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

36 Point of Interest Baldwin v. Blue Cross/Blue Shield of Alabama (11 th Cir. March 19, 2007). Baldwin v. Blue Cross/Blue Shield of Alabama (11 th Cir. March 19, 2007). Employee second-guessed adequacy of employer’s investigation into her complaint of harassment. Employee second-guessed adequacy of employer’s investigation into her complaint of harassment.

37 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.” 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.” Point of Interest

38 What would the Court say about your investigation?

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


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