Handling Workplace Harassment Complaints

Mary E. Funk515.283.8029

mef@nyemaster.com

Harassment is Not Just About Sex

In 2014, the supply of workers was estimated at reaching 162.3 million, an increase of 17.4 million, or 12 percent, from a decade ago.

The number of women in the workforce has largely remained unchanged in the last ten years, and is just under half of all employees - 46.8%.

The age 55 and older segment of the labor force is growing most rapidly, increasing by 11.3 million, or 49.1 percent in the last decade. Because of the aging of the American population, this segment of the labor force will increase at almost five times the rate of the overall labor force (10 percent). 25-54 year olds in the labor force will grow by only 3.4 percent

Changing Workforce Demographics

Hispanic representation in the labor force increased by 33.7 percent between 2004 and 2014, Asian representation is increased by 32.4 percent, and African American representation increased by 16.8 percent. In contrast, white, non-Hispanic representation in the labor force increased by only 3.1 percent between 2004 and 2014.

◦Source: Bureau of Labor Statistics

◦ http://careers.stateuniversity.com/pages/838/American-Workforce-2004-14.html

Title VII of the Civil Rights Act of 1964

Age Discrimination in Employment Act of 1967

Americans with Disabilities Act of 1990

Iowa Civil Rights Act Genetic Information Non-

Discrimination Act

STATUTES PROHIBITING DISCRIMINATION

To fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment; or

to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or attempt to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee

because of such individual's the age, race, creed, color, sex, sexual orientation, gender identity, national origin, religion, or disability

Civil rights laws generally declare it an unlawful employment practice :

Discrimination: unfair or different treatment of an individual or class of individuals based solely on a characteristic with which they were born◦ Unequal pay or benefits◦ Harsher discipline or performance appraisals◦ Least desirable shifts, hours or assignments◦ Fewer chances

Discrimination vs. Harassment

The employee was a member of a protected class;

The employee was meeting the employer’s legitimate performance expectations;

The employee suffered an adverse employment action; and

The employer treated similarly situated employees of the opposite sex more favorably.

A prima facie case of discrimination:

If the employee establishes the prima facie case, the burden of proof shifts to the employer to articulate a non-discriminatory reason for the adverse employment action. If the employer is successful in meeting its burden of proof, the employee must then prove that the proffered reason was merely a pretext for intentional discrimination.

Harassment, on the other hand… Harassment: verbal or physical

conduct by an employee which is unwelcome and harasses, disrupts, or interferes with another's work performance or creates an intimidating, offensive or hostile environment

Harassment = a course of conduct, directed at someone, that causes emotional harm and serves no legitimate purpose

the employee is a member of a protected class; the employee was subjected to unwelcome

harassment; the harassment was based on the employee’s

protected class status; the harassment affected a term, condition or

privilege of employment; and the employer knew or should have known of the

harassment and failed to take prompt and effective remedial action.

A harassment plaintiff must prove:

Quid Pro Quo“Go along to get along” or “Put out or get out”

Hostile Work Environment◦ Verbal, nonverbal, physical

2 Kinds of Harassment:

UNWELCOME SEVERE AND PERVASIVE

Harassment must be:

Means of expressing dominance or power Keep people in their place Impress others or to gain approval and fit in Bullying tactic

HARASSMENT IS A MISUSE OF POWER

Why do people harass others?

WHAT DOES A HARASSER LOOK LIKE?

Harassment by third parties

WHAT ABOUT BULLYING?

Bullying is aggressive behavior that is intentional and that involves an imbalance of power. Most often, it is repeated over time.

Examples of obvious and aggressive behavior:◦ abusive, insulting or offensive language◦ behavior or language that frightens, humiliates,

belittles or degrades, including criticism that is delivered with yelling and screaming

◦ regularly making someone the brunt of practical jokes◦ displaying material that is degrading or offending◦ spreading gossip, rumors and innuendo of a malicious

nature◦ mobbing – A group of co-workers targeting another

employeeViolent behaviors – law enforcement

Bullying Behavior

Deliberately excluding, isolating or marginalizing a person from normal workplace activities

Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment

Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism

Workplace bullying can also be subtle and may include behavior such as:

Covert behavior that undermines or treats others less favorably could also be considered bullying:◦ overloading a person with work◦ setting timelines that are very difficult to achieve, or

constantly changing deadlines◦ setting tasks that are unreasonably beyond a person’s

ability◦ ignoring or isolating a person◦ deliberately denying access to information,

consultation or resources◦ unfair treatment in relation to accessing workplace

entitlements, such as leave or training

An effective anti-harassment Policy

State the company’s commitment to a discrimination and harassment-free workplace◦ Not just about sex

Define harassment◦QPQ (provides examples)◦HWE (provides examples)

MUST:

Prohibit retaliationOutline complaint procedure

◦Multiple reporting avenuesProvide for an investigation

◦ Provide consequences◦ Prohibits retaliation

Investigating the Complaint

Company Must Take Prompt Remedial Action ◦ amount of time between the notice and the

action;◦ the options available to the employer, such as

training, reassignment, written warnings and reprimands, or termination; and

◦ consideration of whether the actions ended the harassment

The Harassment Complaint

Top Mistakes Investigators Make Fail to Maintain Confidentiality Mismanage information (let the grapevine

loose) Abandon independence Define success as making a clear

determination Define success as merely passing on

statements

Do not dig deep enough Ignore the dynamics of workplace conflict Pass the buck Exhibit a lack of respect for the process or

for participants Fail to think through the process and plan

ahead of time Fail to follow-up

Before the Investigation Starts… Who should conduct?

When to call the “Professional”

The misconduct involves an owner or officer

When you have personal involvement and may be a witness or cannot be objective

You have never conducted an investigation before

A governmental entity is involved Lawsuit or external complaint has been

filed or threatened

Should you involve legal counsel? Consider that the investigator may be a

witness and precluded from being both fact witness and legal counsel

Advise witness that attorney is not representing them

Indicate whether the employee must, may, or is encouraged to have his/her own lawyer present.

 Caution that discipline and possibly criminal prosecution (if applicable) could result.

Consider issues of privilege

Before the Investigation Starts… Suspend the Company’s Record Retention

Policy as to any possibly relevant documents, including emails.

Consider obtaining documentary evidence, including computer resources, prior to interviews.

Identify and review all potentially applicable personnel policies.

Before the Investigation Starts…

What is the time frame? Who should be interviewed and in what

order? Special considerations for interviewing the

complainant or alleged wrongdoer? What record should be made and

preserved?

Types of Evidence to Consider Direct Circumstantial Anecdotal Statistical Comparative

Tips for Investigating

Prepare Thoroughly Beforehand Prepare a Detailed Outline of Key Questions

Consider Weingarten Rights

State what is being investigated Explain seriousness Explain the process of the investigation

and the role of the investigator -- neutral Explain their participation is essential Explain the importance of accurate and

honest information Maintain information on a “need to know”

basis Identify to whom you will be reporting

What to tell the witnesses:

Explain they may not receive any feedback (unless it is the complainant)

Inform them you’ll be taking notes There is no immunity There is no retaliation Give them your contact information

Tell the witness you may need to share information with those who have a legitimate need to know.

Advise them they should not discuss with others◦ Protects the process◦ Protects integrity of following testimony◦ NLRB

A separate word on confidentiality…

Practical Techniques for Recording Information Start a new page for each interview.  Identify names of those present, date, time

and place of the interview. Sign and date.  Be as close to verbatim as possible.  Report questions and answers.  Do not include interpretations, beliefs,

assumptions, conclusions, etc., Rather than guess at reasons or intentions, ask the witness.

 Be mindful of non-verbal clues.

At the conclusion, review the points contained in notes to confirm accuracy and determine whether the interviewee has anything to add.

 Review and finalize the notes immediately upon completion of the interview or other communication.

 Make sure notes are legible and provide enough information to understand, when reviewed later, what was asked and what information was provided.  

Generally, tape recording interviews is not advisable.

Handling the Uncooperative Witness

Opportunity to add valuable information; possible the wrongdoer gets away with it, if no corroboration

Obligation to participate; no retaliation for participating in good faith◦ This does NOT mean a witness is insulated from

the consequences of their own bad acts.◦ AFTER checking with legal counsel, consider

whether there will be consequences.

“Extras” for Questioning the Alleged Wrongdoer Need not disclose the source of your information Provide full detail so the accused has complete

opportunity to refute Ascertain extent and nature of interactions Ask for facts that may show someone else has a

motivation to lie If accuser denies, ask why complainant may be

fabricating or exaggerating Allow accused to provide alibis or mitigating

circumstances Ask accused who else could corroborate

Making a Credibility Assessment At the end of each interview, note your

observations, both objective and subjective◦ MAKE SURE THESE ARE SEPARATE FROM YOUR

INVESTIGATION NOTES Consider making a grid or chronological

time line There is no such thing as the “one and only

true story”

Special Problems What if the Accused . . .

◦ Shows up with tape recorder (or you think he/she is taping interview?

◦ Demands their lawyer be present?◦ Walks out when you start asking questions?◦ Refuses to answer your questions?

What if the Complainant or Accused wants a copy of the investigative report? ◦ And what do you do with the investigative notes?

Keys to Your Success Place clear boundaries on information Partner with interviewees for evidence

integrity Stand up to those who try to “get in the

way” Make credibility determinations Use your own insight and experience Follow leads Humanize the process

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Case Study

Gordon v. Eagle Tanning Co., 2002 WL 1841552 (Iowa App. 2002) ◦The following were adequate remedial action: Supervisor immediately separated the plaintiff from the offending coworkers;

Supervisor told the workers to stop their offending conduct;

Supervisor scheduled a meeting with the human resources manager for the following morning;

Human resources manager spoke to the plaintiff and the coworkers, told the coworkers to stop harassing the plaintiff on pain of termination, and asked the supervisor to monitor their behavior;

In the following days, both the supervisor and the human resources manager asked the plaintiff how things were going and she responded they were better;

The company followed its sexual harassment policy.

Failure to interview the individuals accused of harassment;

Failure to interview witnesses identified by the complainant;

Failure to follow all the steps outlined in the employer’s anti-harassment policy and complaint procedure;

Failure to make credibility determinations;

Failure to conduct an investigation proportionate to the seriousness of the complaint.

Indicators that an investigation was inadequate:

◦ Ashley Alford worked as a CSR at a rental store beginning in October 2005

◦ Alford claims she was sexually harassed by her supervisor, Richard Moore, GM, starting in November 2005 Sexually oriented comments Nicknamed her “Trixie” Touched her buttocks and chest Tried to unbutton her clothes

Alford v. Aaron Rents, Inc. (SD Ill.)

Alford claimed she called the company hotline in April 2006 and said, “My name is Ashley Alford and I need help.” She claimed she received NO company response.

Alford alleged she was physically abused on 3 occasions by Moore, culminating in a sexual assault in October 2006.

$1.5 mil. against Moore for actual damages; nothing in punitive

$9.5 mil. against Aaron Rents for actual damages for negligent supervision

$4 mil. against Aaron Rents for actual damages under Title VII

$30 mil. against Aaron Rents for punitive damages under negligent supervision

$50 mil. against Aaron Rents for punitive damages under Title VII

The verdict: $95 million to alford

Gilster v. Primebank, Inc. & Joseph Straub Gilster claimed her supervisor, Straub, starting

harassing her in 2008; She was fired in 2011.◦ Rubbing shoulders◦ Making inappropriate comments about her

appearance◦ Pressing his body against her◦ Propositioning her on one occasion◦ She complained; Straub was reprimanded but

remained her supervisor He then ostracized her and took away job

responsibilities She complained again and was then given a poor review

and denied a raise before being fired. Company said her job performance was poor.

Verdict: $870,000◦ $200,000 punitive damages for HWE◦ $400,000 punitive damages for retaliation◦ $240,000 emotional distress◦ $30,000 in back pay and medical expenses

Growing number of suits are using state statutes and state common law theories◦ Iowa Civil Rights Act◦ Negligent retention, hiring and supervision◦ Intentional infliction of emotional distress◦ Defamation◦ Assault and battery

Lessons learned…

Plaintiffs are trying to stay in state court◦ Federal courts are more likely to grant summary

judgment in favor of defendants◦ Damage caps in federal Title VII claims◦ Individual liability under ICRC, not Title VII

The only down side of state court for plaintiffs is no punitive damages for ICRC claims – so look to common law claims

Employers are being held to increasingly high standards regarding◦ The quality of policies and harassment prevention

efforts◦ The quality of investigations◦ The promptness and adequacy of the response

Failure to meet higher standards increases exposure exponentially if coupled with evidence of:◦ Lost/destroyed or hidden evidence◦ Insensitivity or arrogance by corporate witnesses◦ Lack of experience by HR staff◦ Sympathetic plaintiffs (financial issues, family

problems or status, health issues)

The most difficult harassment cases continue to be those where:◦ He said – she said (no other witnesses for either

side)◦ Physical touching or assault◦ The ultimate decision revolves around a credibility

determination (and the defense is based on the plaintiff being a liar or whiner)

Questions?