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Harassment Investigations: Do You Know?

Lindsay F. Gingo, Esq.Squire Pattern Boggs (US) LLPPhone: 216^79-8725lindsay.gingo@squirepb.com

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In Sum SQUIRESimoNgoccs

1. The definition: !s ft harassment, or is my colleague Just a jerk?

2. Identifying the investigator

3. Preparing to investigate

4. Witness intemev/s

5. Pause before concluding

6. The written report

7. Consequences

1. For the alleged harasser

2. For the alleged victim

3. For the school district

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SQUIRE®PATT'ON 80CCS

Harassment:What Not to Do at Work!

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An Example JUIREO1KXXS

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It's Really No Laughing Matter SQUIRESF.mOM»OGCS

Poll conducted by the Workplace Bullying Institute: 37% of U.S. workers - 54million people - believe they have been subjected to a v/orkptace 'hostility."• EEOC Hnds cause in roughty 6% of sexual harassment cases.

Wbere's the disconnect?

While 'hostile workplace" and "hostile work environment'' are common

phrases, few circumstances meet the legal definition.

There is no federal or slate law that expiicitSy and generally outlaws ''butiyjng"at work or "hostile" work environments.

To meet the legal definiiion. the harassment aeneratlymustbe related to apjrotected characleristicfs^.

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It's Really No Laughing Matter SQLUREOWWKXXS

No harassment based on• Age {The Age Discrimination in Employment Act)

• Rac« (Tille VII of the Chll Rlahla Act of 1964)• Color (Tllle VII of Uu Civil Rlghlt Acl.of 19M)• Nallonal origin (TIN. Vll of Ihe CMIRIghls Ad of 1964). Sex (Title VII of Ihe Civil Rights Act of 1964)• Disability and Genetic Information (Americans With Disabilities Act. Rehabilitatlc

Act of 1973, The Genetic Information Nondiscrimlnation Act)

• Veteran status (Uniformed Services Employment and Reempfoyment Rights Act

(USERRA)}• Religion (Title VII of the Civil Rights Act of 1964}

EEOC

DOJ

1SHAPursuit of

DiscriminationCases

Focus on Gender Identity andTransgender Discrimination

« I have determined that the best reading of TitleVll's prohibition of sex discrimination is that itencompasses discrimination based on genderidenlity, including transgender status.

^Previous U.S. Attorney General EricHoiderin December 2014 Memorandum

Protected Class Harassment, Generally SQUIREStWYii^KGCCS

Prohibited harassment occurs when unwelcome physical, verbal, ornonverbal conduct is based upon an mdividuaf's protected class and whenthe conduct has the purpose or effect of:* Interfering vuith the individual's work;

• d creating an [ntimidsting, hostile, or offensive working, and/or leaming

environment; or

' of interfering wth one's ability to participate in or benefit from an educatlonst

program or activity.

For example, harassmentmay occur where conduct is directed at thecharacteristics of a person's race or color, such as racia! slurs, nicknames

impfyi'ng stereotypes, epithets, and/or negative references relative to racialcustoms.

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What Is Sexual Harassment? JUIRES{'.WOWBOCC6

When you think of the term "sexual harassment." what comes to mind?

Deflnitkm• Unwelcome sexual advances, requests for sexual favors, and other verbal or

physical conduct of a sexuai nature Viften ...

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What Is Sexual Harassment?

Submission is made a term or condition ofemptoyment

or

Submission is used as a basis for employment decisions

It has the purpose or effect of unreasonably interfering with an individual'swork performance or creating an intimidaUng, hostile or offensh/e workingenvironment.

Forms of Sexual Harassment JIRECPUTON»OOCS

Two Forms of Sexual Harassment1. QukJ Pro Quo CThis for that)

2. Hostile Environment

Quid Pro Quo WfSCiiOOCS

•You scratch my back and t'ii promote you." (or 'I won't fire you.')

Unwelcome words or conduct, submission to which is a condition ofempioyment or rejection ofv/hfch may result in adverse employment action.

Hostile Environment WIW.9ieoccs

Tntual Humof bfK»vtn>rf»rWL^WSWltyi1

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Unwelcome words or conduct having the purpose or effect of unreasonablyinterfering with an individual's work performance or creating an intimidating,hostile or offensh/e worKing environment

Examples:Unwanted Advances

Sexual fnnuendo

• Dirty Jokes

* Pln-ups

Calendars

* Leering

• Storing

. Unwanted ProposiUons

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The Stats, a 2015 Poll SQUIRESftUTOftijCCCS

HOW COHHOH IS SEXUU HAMSSMfflI ?WW

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The Stats,

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a 2015 Poll

817.Of WOMB) EXPERIENCE

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The Stats, a 2015 Poll

i WE FH.BS ttITKTNELOWESILErajS OF!IWRTEOSBaiAt HARASSMENT! !

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217.MEDIMU

HEALTH CARE

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The Stats, a 2015 Poll r.ytethicQS

MWiMEmiEPOifflNeSStUAL KARASSNEHT?

297,oiDffiimn

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m010 NOT REPORT IT

Myths to Debunk JIREOroKsoocs

Remember" Woman can harass men.

Men can harass rnsn.

Women can harass women.

• Supervisors can be harassed by those they supi

• Employees can be harassed by non-employees.

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SQUIREDPATTON BOCCS

Preparing to Investigate

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Has a Report Been Received? SQUIRE®CAEtflKBOCGS

* By a buikling-level administrator?

• Central office?

• CompSiance officer?

• Teacher or colieague?

* KEY: Are employees aware of their obligation to report, and how does yourDistrict t'nform employees of where to report (t.e.. compliance officer contactinformation)?

• KEY; Prompt reporting is a must.

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The District Receives a Report, Now What? SUIRTO(WtnwiiOCQS

•Who You Gonna Call?'THE LAWYERS!• Weil. maybe.

Most common "investigator'* options:

• Compliance officer or other designated District-wsde representative;

' Board counsel (either In a supportive ro!e or conducting the Investigation);

• Outside support company, such as HR On Call

Who should no/ be conducting these investigations?

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Review Board Policy for Procedures SQUIRESfttfKW60CGi

This is complicated stuff. Make an outline of procedure and people.

NEOLA District?* jnformai complaint procedure

* Forms! complaint procedure

• Specific and strict timetfnes

• Required forms

• Check policy and adminisb-ative guideline

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Review Board Policy for Procedures iUIREO(WE-toMSOGGS

OSBA Dlstricl?• More generalized compiamt procedure (with formal and infofmaf component)

• Specific forms

• Check poiicy and corresponding regulation

• Timeiines are itkefy more nexiblebut require 'prompt' action

Review Collective Bargaining Agreements SQUIRE®CAITOKIOGCS

Some may have a nondiscrimination Article.

Check for procedural requirements:* E.g., Remember employees are entitfed to representaiion in meetings that may

result in disciplinary action.

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Temporary and Immediate Action SQUIRESfttinoriftocffi

• It may be necessary to undertake intermediate measures beforeconductingfcompleting the investigatmn to ensure that ftirther harassmentdoes not occur.

• &<ampfes:• Making work scheduting changes so as to avoid contact between the parties;

* Temporarily transferring the alleged harasser. or

• Piadng the alleged harasser on paid administrative leave pending the conclusion ofthe investigation.

' Is it a criminal matter?

SQUIRES)PATTON OQGCS

Documentation and WitnessInterviews

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Get a Written Compliant Form SQUIRESPAnOftKOOCB

Have the alleged victim complete Ihe required report form.

If he or she refuses, the person receiving the report or the compliance officershould reduce the complaint to writing (check policy).

Include:What occurred, when. and v/here;

• The alieged harasser;

• Any relevant documents the alleged victim thinks are important: and

* Any individuais Vd'th whom the District shodd speak, including vMtnesses.

Have the alleged victim sign the form.

Give copy of the relevant policy and administrative guidelines or regulation.

Te!) him/her to Reep the matter confiden^al.

Notify the Alleged Harasser SQUIRESfWTftWCOCCii

After speaking to the atieged victim, notify the harasser of the nature of theallegations against him/her.

Give the alleged harasser an opportunity to respond in v/riting and in person.

Give him/her a copy of the relevant policy board and/or administrativeguideline/regutation.

Tell him/her to keep the matter conftdential.

What to Ask the Alleged Victim 3UIRECFAITO^OGQS

Who, what, when, where, and how Who committed the allegedharassment? What exactly occurred or was said? When did it occur and is itstill ongoing? Where did it occur? How often did it occur?

How did you react? What response did you make when the incident(s)occurred or afterwards?

> How did the harassment affect you? Has your Job been affected in anyway?

Are there any people who have relevant information? Was anyone presentwhen the aiieged harassment occurred? Did you toil anyone about it? Didanyone see you immediately after the episodes of alieged harassment?

What to Ask the Alleged Victim 3UIREC\WXK6

Did the person who harassed you harass anyone else? Do you knowwhether anyone complained about harassment by that person?

Are there any notes, physical evidence, or other documentation regarding theInc'idenl(s)?

How would you like to see the situation resoh'ed?

Do you know of any other relevant information?

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What to Ask the Alleged Harasser SQUIRESfWfO^feOCGi

What is your response to the allegations?

• if the harasser claims that the aifegatrons are false, ask why the complainantmight lie.

• Are there any people who have relevant information?

• Are there any notes, physical evidence, or other documentation regarding theinckient(s)?

• Do you know of any other relevant information?

What to Ask Witnesses SQUIRESHIYO^gOCCS

What did you see or hear? When did this occur? Describe the allegedharasser's behavior toward the complainant and toward others in theworkplace.

• What did (he complainant lell you? When did he/she tell you this?

• Do you know of any other relevant information?

• Are there other people who have relevant information?

• Tell him/her to keep the matter confidential.

Making Judgment Calls iUIREOTONftXCS

Weighing Credibility

Inherent plausibility: Is the testimony believable on its face? Does rt makesense?

Demeanor: Did the person seem to be telfing the truth or tying?

Motive to falsify: Did the person have a reason to lie?

Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people \IA\o saw the person soon after the alleged incidents, orpeople who discussed the incidents with him or her at around Ihe time thatthey occurred) or physical evidence (such as v/ritlen documentation) thatcorroborates the party's testimony?

Past record: D'ri the alleged harasser have a history of similar behaviorinthe past?

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Investigate the Investigation SQUIREOfWTfcWBOCGS

Before reaching any conclusions, revsew the invesfigalton. This is critjcal toavoid mistakes.

Has the District spoken with all necessaiy people?

And reviewed all relevant documents, incfuding any information the Districtmay have on file (for example, video foolage, absence records, etc.)?

SQUIRES)PATTON BQGCS

The Written Report andConsequences

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The Written Report and Recommendation SQUIRE®tyitOnlfOGGS

Make the report chronofogicat.

Describe when first learned of the complaint.

Provide exact details of the complaint

Note the documents reviewed.

Describe the interviews.* For all witnesses, distinguish between firsthand knoviledge and rumor.

State conclusions as to whether harassment occurred and provMe specificjustilteaUon. (More likely than not IhatH occun-sd?)

Recommend corrective action if harassmentoccurred.

The corrective action should:• be reasonabiy calcujated to prevent further harassment;

• not punish the victim; and

• be consistent with the discipSine Imposed in the past in similar situations.

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Submit the Report for Review iUIREOKMBOCui

Most policies have the Compliance Officer submit a report to theSuperintendent for review.

The Superintendent issues a final determination fetter.• Should not be a rubber stamp.

* Point out any deficiencies in the report.

• Superintendent may ask foStow-up questions if necessary, and can conductinten/iews if needed.

Submit the Report for Review 3UIRECc.'atOfi^ooa'i

Corrective action could include:• Discipline up to and fnduding terminatfon

• inv&iuntsfy transfer

* Mandatory training

• Courtseling sen/ices for victim

Even tf unsubstantiated report, consider:* Discipiine based on grounds other than unlav/fu! haras

• Policy review

* Global training

Follow Up With the Alleged Victim and Harasser JIREC[IOGCS

Fotiow up with the victim and perpetrator after the decision has been made.

Provide them with the Superintendent's final determination letter.

But remember, the investigation records are likely public records subject to arecords request.

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Appeal Process SQUIRESftyrro^eoccs

Check your policy.

Some have the Superintendent's decision as final

OUiers might have an appeal to the board of education, \vith the board'sdecision as final.

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Consequences for the Victim 3U1REOIWEtOf< EtfiCCS

No retaliation based reports or complaints of discrimination or harassment• Age

CotOT

National origin

Sex

Disability/Genetic Snformation

Veteran status

Religion

Consequences for the District si]REOmocca

The District must be able to show it took reasonable care to prevent andpromptly correct harassment.

Reasonable care generally requires a District to establish, disseminate, andenforce an anti-harassmenlpolicy and complaint procedure and to lake otherreasonable steps io prevent and correct harassment.

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