HARASSMENT INVESTIGATIONS:
THE STATE OF THE ART AND THE STATE OF THE LAW
Presented by
Charles M. Spearman
Tucker Spearman & Associates, Inc.
211 North Union Street
Suite 100
Alexandria, Virginia 22314
Telephone: 703-684-4872
Telecopier: 703-837-0563
tuckerspearman@aol.com
Yvonne R. Haddad
Post & Schell, P.C.
1800 John F. Kennedy Boulevard
19th Floor
Philadelphia, Pennsylvania 19103
Telephone: 215-587-1106
Telecopier: 215-587-1497
yhaddad@postschell.com
HARASSMENT INVESTIGATIONS:
THE STATE OF THE ART AND THE STATE OF THE LAW
I.
INTRODUCTION
A.
Background
Prior to the Supreme Court’s decisions in Ellerth and Faragher, an
employer could avoid liability for harassment by demonstrating that (1) it
neither knew nor should have known of the harassing conduct or (2) it
took prompt and effective remedial measures upon notice of the
harassment. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118
S. Ct. 2257 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.
Ct. 2275 (1998). That duet of decisions, however, imposes substantial
burdens on an employer to proactively implement anti-harassment policies
and procedures. The carrot for these measures is that an employer has a
defense to a harassment claim, in many but not all circumstances,1 if “the
employer exercised reasonable care to prevent and correct promptly” any
harassing behavior and if the employee-victim “unreasonably failed to
take advantage of any preventative or corrective opportunities provided by
the employer or to avoid harm otherwise.” Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 765, 118 S. Ct. 2257 (1998).
B.
Employer Must Act with Reasonable Care
Under Ellerth and Faragher, an employer must demonstrate that it
exercised reasonable care, which means that an employer must “establish,
disseminate, and enforce an anti-harassment policy and complaint
procedure and to take other reasonable steps to prevent and correct
harassment.”
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
ENFORCEMENT GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR
UNLAWFUL HARASSMENT BY SUPERVISORS, 2 Compliance Manual Series
No. 915.002 (June 18, 1999) (“EEOC Harassment Guidance”). As the
The Ellerth/Faragher defense is not available if the alleged harasser is
the plaintiff employee’s “supervisor” and the harassment culminates in a “tangible
employment action,” such as discharge or failure to promote. Faragher, 118 S.
Ct. at 2292-2293; Ellerth, 118 S. Ct. at 2270. According to a very recent decision
from the Eastern District of Pennsylvania, a constructive discharge constitutes a
tangible employment action. Hawk v. Americold Logistics, LLC, No. 02-3528,
2003 U.S. Dist. LEXIS 3445 (E.D. Pa. March 6, 2003)(“I conclude that Plaintiff
has sufficiently shown that she suffered a tangible employment action, so as to
preclude application of the Faragher/Ellerth affirmative defense”).
1
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Ellerth Court observed, “Title VII is designed to encourage the creation
of anti-harassment policies and effective grievance mechanisms.” Ellerth,
524 U.S. at 764, 118 S. Ct. at 2270.
Commentators and courts construing Ellerth and
Faragher have
suggested that an effective harassment policy should have the following
characteristics: (1) be written; (2) be distributed to every employee,
optimally with a signed acknowledgment by each; (3) prohibit all types of
harassment and not be confined to just sexual harassment; (4) provide a
clear definition of harassment and concrete examples of prohibited
conduct; (5) establish a procedure for making an internal complaint; (6)
specify a person or department to whom complaints should be made, as
well as an alternate designee in case the principal designee played a role in
the harassment; (7) require immediate reporting of complaints; (8) provide
for prompt investigation of complaints; (9) assure confidentiality to the
greatest practicable extent; (10) recite that violators will be subject to
disciplinary action, up to and including, termination; and (11) include an
anti-retaliation provision. See Erin Ardale, Employer Liability for Sexual
Harassment in the Wake of Faragher and Ellerth, 9 CORNELL J.L. & PUB.
POL’Y 585, 605-606 (2000); Haugerud v. Amery School Dist., 259 F.3d
678 (7th Cir. 2001)(example of a very poor complaint procedure permitting
employees to circumvent the employer’s internal complaint process by
proceeding directly to the EEOC. “Here, however, plaintiff did not fail to
take advantage of the Board’s sexual harassment policy. That policy
allows complainants to file a charge of discrimination with the Equal
Rights Division in addition to or instead of using the internal complaint
procedure. As the plaintiff’s decision to file an external complaint rather
filing a complaint with the Board was in accordance with the Board’s own
policy, the Board cannot now allege that plaintiff did not fulfill her
obligation of reasonable care.”); O’Rourke v. City of Providence, 235 F.3d
713 (1st Cir. 2001)(employer failed to include “any assurance that the
harassing supervisors could be bypassed in registering complaints”; court
finds employer, as a matter of law, did not exercise reasonable care to
prevent the supervisors’ harassing conduct).
C.
The Investigation Can Make or Break the Ellerth/Faragher
Affirmative Defense
The mere publication of a sexual harassment policy will not insulate an
employer from liability. E.g., Harbison v. Pilot Air Freight, No. IP 990882-C H/G, 2001 U.S. Dist. LEXIS 5024 at *76 (S.D. Ind. Mar. 16,
2001); Hurley v. Atlantic City Police Department, 174 F.3d 95, 118 (3d
Cir. 1999) (“Ellerth and Faragher do not, as the defendants seem to
assume, focus mechanically on the formal existence of a sexual
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harassment policy, allowing an absolute defense to a hostile work
environment claim whenever the employer can point to an anti-harassment
policy of some sort”); Dowling v. Home Depot, 90 Fair Empl. Pract. Cas.
(BNA) 1285 (E.D. Pa. 2003) (same). But see Shaw v. AutoZone, Inc., 180
F.3d 806 (7th Cir. 1999)(Ellerth/Faragher defense established by
employer who had implemented harassment policy, alleged harasser
attended almost two dozen meetings at which the harassment policy was
discussed and no one (including plaintiff) complained to the employer
about the accused’s conduct).
An employer, however, can shield itself from liability by acting
reasonably in response to a harassment complaint. Swenson v. Potter,
271 F.3d 1184, 1196 (9th Cir. 2001). “[A]n employer satisfies the prompt
remedial action requirement if it took the allegation seriously, it conducted
a prompt and thorough investigation, and it immediately implemented
remedial and disciplinary measures based on the results of such
investigation.” Goff v. Soundolier Div. of Am. Trading & Prod. Corp.,
No. 3:98-CV-2254-P, 2000 U.S. Dist. LEXIS 7410 at *10 (N.D. Tex. May
30, 2000).
An employer need not “succeed in preventing sexual
harassment, but it must act reasonably.” Harbison, 2001 U.S. Dist.
LEXIS 5024 at *78.
Indeed, “a good faith investigation of alleged
harassment may satisfy the ‘prompt and adequate response standard, even
if the investigation turns up no evidence of harassment . . . [and] a jury
later concludes that in fact harassment occurred.” Swenson, 271 F.3d at
1196 (quoting Harris v. L&L Wings, Inc., 132 F.3d 978, 984 (4th Cir.
1997)).
II.
HOW COURTS HAVE ASSESSED INTERNAL INVESTIGATIONS
“An employer has latitude in deciding how to handle and respond to
discrimination claims, notwithstanding the fact that different strategies and
approaches in different cases and classes of cases will result in different
treatment.” O’Dell v. Trans World Entertainment Corp., 153 F. Supp. 2d 378,
390 (S.D.N.Y. 2001)(quoting United States v. New York City Transit Auth., 97
F.3d 672, 677 (2d Cir. 1996)). In recognition of this flexibility, courts have
abjured “a checklist approach to the adequacy of an investigation,” and have
instead focused on “evidence of the employer’s zeal to investigate and resolve
claims of sexual harassment.” Jayesh Shah, Limiting Expert Testimony About
Sexual Harassment Policies, 1999 U. CHI. LEGAL F. 587, 611 (1999). This paper,
nevertheless, will next turn to a discussion of some of the common issues in
harassment investigations.
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A.
Investigator Must Be Properly Trained and Instructed
For most employees, the EEO investigator serves as the face of an
employer’s overall EEO compliance efforts. If employees don’t perceive
the investigator as a qualified and impartial fact-finder, it may be difficult
to conduct an effective investigation. The individual filing the complaint
and the individual against whom the complaint is filed may be treated
unfairly. The employer may not get accurate information to address the
issue and to prevent future inappropriate behavior. And employees may
distrust the process and avoid using the internal complaint system
altogether, instead choosing external resources such as the EEOC and
legal counsel to address their concerns.
The shoddiness of the employer’s investigation unquestionably troubled
the court in Bennett v. Progressive Corp., 225 F. Supp. 2d 190 (N.D.N.Y.
2002). The Bennett court denied the employer’s summary judgment
motion on the Ellerth/Faragher defense, in part, because the employer had
used untrained personnel to investigate plaintiff’s internal complaint of
sexual harassment:
No Progressive employee [who was] part of the investigation had
any specific procedures to follow with regards to conducting a
sexual harassment investigation, aside from general directions to
interview and take statements from people. Human Rights
employee Buttacavoli had no experience investigating sexual
harassment claims, and perhaps amazingly, concluded the
investigation in four short days. The level of harassment alone and
the competing versions of the facts may lead a jury to believe that
a four-day investigation would lack depth. Plaintiff has thus
contested [the employer’s] contention that the investigation was
effective and adequate, and summary judgment is not the
appropriate vehicle for resolving it.
Id. at 208.
The Fourth Circuit similarly concluded that First Union had not exercised
reasonable care in addressing the plaintiff’s sexual harassment allegations
by, among other things, permitting an HR employee without any prior
sexual harassment investigative experience to undertake the investigation.
Smith v. First Union Nat’l Bank, 202 F.3d 234, 245 (4th Cir. 2000). A lack
of training undoubtedly led the HR rep to “focus on [plaintiff’s]
complaints about [the harasser’s] management style” while ignoring her
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“allegations of sexual harassment.” Id.
rep, Marc Hutto, acknowledged
During his deposition, the HR
that he was alerted to the sexual content of [the harasser’s]
remarks. Nevertheless, Hutto failed to ask [the harasser] whether
he made any of the sexually harassing remarks to [plaintiff]; in
addition, despite Hutto’s alleged concern for [the plaintiff’s]
safety, he never asked [the harasser] about his “slit a woman’s
throat” remark, nor did he reprimand [the harasser] for such an
ominous threat.
If Hutto had asked [the harasser] about
[plaintiff’s] allegations of sexual harassment, he would have
discovered that [the harasser] admits to making some of the
harassing remarks.
Id. at 245.
Inappropriate instructions also can doom an investigation. For instance, in
Sheppard v. River Valley Fitness One, L.P., 87 Fair Empl. Prac. Cas.
(BNA) 953 (D.N.H. 2001), employer instructed its outside, independent
investigator that she should gather facts, but not draw any conclusions
concerning plaintiff’s sexual harassment claims.
In denying the
employer’s summary judgment motion, the court explained that “it is not
clear that the ‘independent investigation’ was, in reality, part of a genuine
effort on the part of plaintiff’s employer(s) to implement preventative or
remedial action.”
B.
What is a “Prompt” Investigation?
An employer should set up a mechanism for a prompt, thorough,
and impartial investigation into alleged harassment. As soon as
management learns about alleged harassment, it should determine
whether a detailed fact-finding investigation is necessary. For
example, if the alleged harasser does not deny the accusation, there
would be no need to interview witnesses, and the employer could
immediately determine appropriate corrective action.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ENFORCEMENT
GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL
HARASSMENT BY SUPERVISORS, 2 Compliance Manual Series No. 915.002
(June 18, 1999).
The EEOC instructs that any investigation must be launched immediately,
and courts have found a swift commencement a compelling fact in
evaluating the sufficiency of an employer’s response. Swenson v. Potter,
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271 F.3d 1184, 1193 (9th Cir. 2001)(“The most significant immediate
measure an employer can take in response to a sexual harassment
complaint is to launch a prompt investigation to determine whether the
complaint is justified”).
1.
Rheineck v. Hutchinson Technology, 261 F.3d 751 (8th Cir. 2001).
Employer's remedial actions were reasonable in that immediately
after supervisor received and confiscated copy of offensive photo,
he called a supervisors' meeting to begin investigation, confiscated
and destroyed additional copies of the photograph, and nine
employees who had copies were both disciplined and required to
take sexual harassment training.
2.
Berry v. Delta Airlines, 260 F.3d 803 (7th Cir. 2001). Employer
acted promptly and appropriately to end alleged sexual harassment
of female employee by male contractor, and thus was not liable to
employee under Title VII, where employer began investigation the
day that employee reported conduct, and, even though employee's
allegations were not confirmed, employer requested a change in
male contractor's shift and asked that all contractors be required to
view sexual harassment training video.
3.
Daniels v. Home Depot, Inc., No. 01-466, 2002 U.S. Dist. LEXIS
11990 (E.D. La. June 26, 2002). Upon receipt of employee’s
EEOC charge asserting racial harassment, Home Depot
immediately investigated and within sixteen days terminated the
harasser.
4.
Duviella v. Counseling Serv. of Eastern District of New York, No.
00-CV-2424 (ILG), 2001 U.S. Dist. LEXIS 22538 (E.D.N.Y. Nov.
20, 2001).
On the same day that the employer learned of
plaintiff’s harassment allegations, it began its investigation.
Investigator sought to meet with plaintiff on two occasions, even
inviting her counsel to attend, but plaintiff refused to appear
because she believed the investigator was biased in favor of the
harasser. The investigator, nevertheless interviewed the harasser
multiple times, and he interviewed plaintiff’s co-workers and
supervisors. Summary judgment for the employer.
5.
Pickett v. Colonel of Spearfish, 209 F. Supp. 2d 999 (D.S.D. 2001).
Summary judgment entered for employer in case in which plaintiff
claimed that she was subjected to sexual harassment including
rape. Plaintiff did not use internal procedures to complain about
her alleged harassers. A co-worker, however, complained about
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one of the same harassers. Within four days of this complaint, the
employer completed its investigation and fired the harasser.
6.
In McGowen v. Palmer House Hilton Hotel Co., No. 00-C-0733,
2000 U.S. Dist. LEXIS 12640 (N.D. Ill. Aug. 23, 2000), the
employer begin its investigation on the same day that plaintiff
complained and completed its investigation in four days.
Employer interviewed the harasser and “every witness McGowen
had named. Though there were instances of inappropriate behavior
observed . . . no specific acts of sexual harassment were
corroborated.” Compare Bennett v. Progressive Corp., 225 F.
Supp. 2d 190, 208 (N.D.N.Y. 2002)(defective investigation
“amazingly” concluded in four short days).
The duration of an investigation depends on the particular circumstances
of the case. A three to four month investigation was appropriate in
Swenson v. Potter, 271 F.3d 1184, 1196 (9th Cir. 2001). On this point, the
Ninth Circuit determined that the employer, the Postal Service, took
prompt corrective action and avoided Title VII liability. The Postal
Service separated the complainant from alleged harasser pending outcome
of investigation by moving her to different location within same facility, it
completed its investigation in three to four months, it then took permanent
steps to separate the two in the workplace even though it had concluded it
could not substantiate the complainant’s harassment complaint, and
employee saw alleged harasser only about once a month from distance
after that. See also Tutman v. WBBM-TV, 209 F.3d 1044 (7th Cir.
2000)(employer took prompt and effective remedial action to prevent
alleged racial harassment of employee by co-employee from recurring,
and thus was not liable under Title VII, where employer began
investigating on day of incident, completed its investigation within two
weeks, sanctioned co-employee by issuing letter of reprimand, sending
him to sensitivity training, and commanding him to apologize, and offered
to arrange schedules so that employee and co-employee would have no
contact); Walton v. Johnson & Johnson Servs., Inc., 203 F. Supp. 2d 1312
(M.D. Fla. 2002) (three month investigation was not improper).
C.
What is an Adequate Investigation?
The EEOC’s Harassment Guidance identifies the essential elements of an
investigation, as follows:
When detailed fact-finding is necessary, the investigator should
interview the complainant, the alleged harasser, and third parties
who could reasonably be expected to have relevant information.
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Information relating to the personal lives of the parties outside the
workplace would be relevant only in unusual circumstances. When
interviewing the parties and witnesses, the investigator should
refrain from offering his or her opinion.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ENFORCEMENT
GUIDANCE: VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL
HARASSMENT BY SUPERVISORS, 2 Compliance Manual Series No. 915.002
(June 18, 1999).
While the foregoing principles appear straightforward, a number of
employers failed to follow them to their peril, as illustrated below.
1.
Failure to investigate/investigate sufficiently. Nichols v. Azteca
Restaurant Ent., 256 F.3d 864 (9th Cir. 2001) (employer conducted
spot checks, but did not conduct an investigation); Cadena v.
Pacesetter Corp., 224 F.3d 1203 (10th Cir. 2000)(court suggests
that investigation was a sham where investigator failed to speak to
complainant, harasser, supervisors or witnesses and investigator
“did not know that Cadena was the complainant or Bauersfeld was
the harasser.” The investigator testified that she “was unsure if she
had ever been told the nature or specifics of the complaint”);
EEOC v. Federal Express Corp., 188 F. Supp. 2d 600 (E.D.N.C.
2000)(no evidence of a prompt and effective employer response to
plaintiff’s sexual harassment complaint where employer completed
its investigation without interviewing “several” of the witnesses
identified by the employee and employer concluded that no
harassment had occurred).
2.
Improper investigator used. Hathaway v. Runyon, 132 F.3d
1214 (8th Cir. 1997)(allowed supervisor of alleged harasser to
conduct the investigation).
3.
Failing to take complaint seriously or treating the complaint
dismissively. Morabito v. General Motors Corp., No. 3:97-CV0785-P, 1999 U.S. Dist. LEXIS 19751 (N.D. Tex. Dec. 17,
1999)(supervisor, to whom plaintiffs complained, laughed at the
harasser’s conduct or “rebuffed their pleas for assistance”); Hawk
v. Americold Logistics, LLC, No. 02-3528, 2003 U.S. Dist. LEXIS
3445 (E.D. Pa. 2003)(In the course of the investigation, the
investigator remarked to the victim that she “should not say this,
but [the alleged harasser] has been known to talk like that to
women, that’s just the way [he] is.” Id. at *25. The investigator
also asked the victim if she understood the potential impact of her
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harassment claims on the harasser’s family. Id. Meanwhile, two
of the victim’s supervisors failed to pass on to their superiors
information concerning the harassment. According to the court,
“[t]hese facts alone suffice to create a genuine issue of fact as to
the first prong of the affirmative defense.” Id. at *26).
4.
Failed to make credibility determinations. Keefer v. Universal
Forest Prods, Inc., 73 F. Supp. 2d 1053 (W.D. Mo.
1999)(employer aware of other information bearing adversely on
harasser’s credibility, but it “appears to not have been considered”;
employer instead concluded that it was unable to determine what
happened “so it had no basis for disciplining the harasser”);
Sheppard v. River Valley Fitness One, L.P., 87 Fair Empl. Prac.
Cas. (BNA) 953 (D.N.H. 2001)(where independent investigator
was instructed that she was not to draw conclusions concerning
plaintiff’s sexual harassment claims, court suggests that
investigation was not bona fide).
5.
Ignored prior complaints. Hatley v. Hilton Hotels Corp., 308
F.3d 473, 476 (5th Cir. 2002)(reinstating verdict for plaintiffs on
sexual harassment claims where other employee’s prior sexual
harassment complaints “had fallen through the cracks . . . . [S]uch
evidence supports the jury’s finding that the investigation was
inadequate and that Bally’s did not take reasonable measures to
correct or prevent the harassment”); Harbison v. Pilot Air Freight,
No. IP 99-0882-C H/G, 2001 U.S. Dist. LEXIS 5024 (S.D. Ind.
Mar. 16, 2001)(Although employer conducted facially reasonable
investigation of plaintiff’s complaint, it had ignored earlier
complaints by several women concerning the same harasser.
Summary judgment denied because a jury could conclude that the
employer was “required to do more sooner.”); Brooks v. H.J.
Russell & Co., 66 F. Supp. 2d 1349 (N.D. Ga. 1999)(“Court agrees
with the Company’s contention that it acted with reasonable care
after she made her complaint to correct in a prompt fashion the
sexual harassment endured by the Plaintiff. Nevertheless, the
Court finds that genuine issues of fact exist as to whether the
Company had notice before January 1997 of [the alleged
harasser’s] sexually harassing conduct. The Plaintiff presented
extensive evidence that Brown sexually harassed other employees
of the Company, that management knew or should have known
about [the alleged harasser’s] harassing behavior, and that these
events occurred well before the events relating to the Plaintiff.”).
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III.
DISCIPLINARY CONSIDERATIONS
Corrective action must be prompt and reasonably calculated to end the
harassment. The centrality of discipline to an effective prompt and remedial
employer response is made clear by the EEOC:
An employer should make clear that it will undertake immediate and
appropriate corrective action, including discipline, whenever it determines
that harassment has occurred in violation of the employer's policy.
Management should inform both parties about these measures.
Remedial measures should be designed to stop the harassment, correct its
effects on the employee, and ensure that the harassment does not recur.
These remedial measures need not be those that the employee requests or
prefers, as long as they are effective.
In determining disciplinary measures, management should keep in mind
that the employer could be found liable if the harassment does not stop. At
the same time, management may have concerns that overly punitive
measures may subject the employer to claims such as wrongful discharge,
and may simply be inappropriate.
To balance the competing concerns, disciplinary measures should be
proportional to the seriousness of the offense. If the harassment was
minor, such as a small number of "off-color" remarks by an individual
with no prior history of similar misconduct, then counseling and an oral
warning might be all that is necessary. On the other hand, if the
harassment was severe or persistent, then suspension or discharge may be
appropriate.
Remedial measures should not adversely affect the complainant. Thus, for
example, if it is necessary to separate the parties, then the harasser should
be transferred (unless the complainant prefers otherwise). Remedial
responses that penalize the complainant could constitute unlawful
retaliation and are not effective in correcting the harassment.
Remedial measures also should correct the effects of the harassment. Such
measures should be designed to put the employee in the position s/he
would have been in had the misconduct not occurred.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ENFORCEMENT GUIDANCE:
VICARIOUS EMPLOYER LIABILITY FOR UNLAWFUL HARASSMENT BY SUPERVISORS,
2 Compliance Manual Series No. 915.002 (June 18, 1999).
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In a pre-Ellerth/Faragher decision, the Third Circuit explained that even if
employer’s investigation into complaints of sexual harassment is imperfect, the
employer would not held liable for the hostile work environment created by
employee under negligence theory of liability unless remedial action taken
subsequent to the investigation is also lacking. Knabe v. Boury Corp., 114 F.3d
407 (3d Cir. 1997).
An employer is required to respond in a fashion reasonably likely to prevent
future harassment. Parkins v. Civil Constructors of Ill. Inc., 163 F.3d 1027 (7th
Cir. 1998). In evaluating whether an employer’s liability, the key issue is not
whether the punishment was proportionate to the employee's offense but whether
the employer responded with appropriate remedial action reasonably likely under
the circumstances to prevent the conduct from recurring. Tutman v. WBBM-TV,
209 F.3d 1044 (7th Cir. 2000). Plaintiff’s perception that the discipline was too
light will not defeat the employer’s affirmative defense if the offensive conduct
ceased. E.g., Gawley v. Indiana Univ., 276 F.3d 301 (7th Cir. 2001)(while
plaintiff contends that the university conducted an inadequate investigation of the
incidents and that the warning issued to the harasser was lacking, “she agrees that
the investigation and warning resulted in a cessation of . . . offensive conduct”);
IV.
WHAT SHOULD EMPLOYERS DO?
A.
Establish a Policy that Prohibits Harassment of Any Kind
This policy should clearly state that the employer will not tolerate
harassment on any basis including, but not limited to, sex (including
sexual harassment and harassment because of sex), race, color, religion,
national origin, age, disability, and protected activity.
The policy should be written in a way that will be understood by all
employees in the employer’s workforce.
The policy should provide current definitions of harassment and concrete
examples of prohibited conduct. See, e.g., Stricker v. Cessford
Construction Co., 179 F. Supp. 2d 987, 1008 (N.D. Iowa 2001)(policy
defective because, among other things, it fails to mention or define
harassment). In addition, employees should be assured that immediate and
appropriate corrective action will be taken when it is determined that
harassment has occurred.
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B.
The Harassment Policy Should Include Internal Complaint
Procedures
Encourage employees to report discrimination and harassment to
management immediately.
Complaints should be accepted in either oral or written forms. When an
oral complaint is received, it should be reduced to writing as soon as
possible and the complaining party should be asked to read and sign a
copy of the complaint.
Designate more than one individual or department to accept complaints,
and ensure that individuals responsible for taking complaints are
accessible. See, e.g., Stricker v. Cessford Construction Co., 179 F. Supp.
2d 987, 1008 (N.D. Iowa 2001)(policy provides no information about how
to contact the EEO officer responsible for receiving harassment
complaints).
Advise all supervisors of their duty to report any complaints of harassment
or discrimination to the appropriate officials. Bray v. City of Chicago, 90
Fair Empl. Prac. Cas. (BNA) 618 (N.D. Ill. 2002)(no evidence that
supervisors followed reporting requirements of sexual harassment policy.
“It is clear, however, that there are material facts in dispute for a jury to
find that the City was negligent by failing to follow its policy”).
Specifically, supervisors and managers should be advised to address or
report to appropriate officials complaints of harassment regardless of
whether they are officially designated to take complaints and regardless of
whether a complaint was framed in a way that conforms to the
organization’s particular complaint procedures.
Assure employees that confidentiality will be protected to the extent
possible.
Stress that retaliation is strictly prohibited and that employees engaging in
retaliation will be disciplined.
C.
Distribute the Policy to all Employees and Provide Training
An employer should be able to demonstrate that its policy was
disseminated to its employees (and able to demonstrate that the employee
received a copy of the policy or knew of the policy). E.g., Hightower v.
Roman, Inc., 190 F. Supp. 2d 740 (D.N.J. 2002)(unclear that employees
were made aware of employer’s EEO policy); Matvia v. Bald Head Island
Mngmt., Inc., 259 F.3d 261 (4th Cir. 2001)(policy discussed during
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orientation); Weston v. Pennsylvania, 251 F.3d 420, 427 (3rd Cir.
2000)(employer’s grievance procedure was known to and used by
plaintiff); Bishop v. National Railroad Passenger Corp., 66 F. Supp. 2d
650, 668 (E.D. Pa. 1999)(policy posted on bulletin boards near the time
clocks and distributed to all employees).
Provide a copy of the policy to each employee (provide to new employees
during employee orientation), include the policy in employee handbooks,
provide training on the policy to ensure that employees understand their
rights and responsibilities, post the policy in central locations, redistribute
the policy periodically, and perhaps establish or utilize a confidential
hotline, etc.
It is important to maintain documentation of policy
distributions and training dates/list of participants.
D.
Enforce the Policy
Employers must take remedial measures that are designed to stop the
harassment and ensure that the harassment does not recur. Records should
be maintained to ensure that similar actions are taken for similar offenses.
Further, the punishment should fit the crime. For example, not every
incident requires termination.
E.
Conduct Prompt, Thorough and Impartial Investigations
As discussed earlier, timeliness is critical. Delays in conducting the
investigation can be very costly. Initiate the investigation immediately
and depending on the allegation, take steps to separate the parties.
In order to be effective, the investigation must be fair, complete and
thorough. The investigation should address all allegations and where
appropriate, clearly articulate why disciplinary action is warranted. Even
if there is no discipline warranted, the policy should be reiterated and the
conversation documented, etc. E.g., McGowan v. Palmer House Hilton
Hotel, Co., No. 00 C 0733, 2000 U.S. Dist. LEXIS 12640 (N.D. Ill. Aug.
4, 2000)(even though employer was unable to corroborate any specific
incidents of sexual harassment, it gave the alleged harasser “a written
warning that stated that he would be further disciplined and perhaps fired
for any further harassment allegations, and directed [him] not to have
further contact with [plaintiff]”).
Credibility is also critical. It is important that whoever conducts the
investigation must be objective and unbiased.
In addition, whoever
conducts the investigation should have prior training on conducting
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effective investigations. E.g., Bennett v. Progressive Corp., 225 F. Supp.
2d 190 (N.D.N.Y. 2002).
F.
Ensure That Supervisors and Managers Understand Their
Responsibilities Under the Harassment Policy and Complaint
Procedures
Periodic training should be provided to supervisors and managers to
ensure that they understand their responsibilities under the organization’s
anti-harassment policy and complaint procedure. Such training should
explain the types of conduct that violate the employer’s anti-harassment
policy; the seriousness of the policy; the responsibilities of supervisors and
managers when they learn of alleged harassment; and the prohibition
against retaliation.
An employer should also keep track of its supervisors’ and managers’
conduct to make sure that they carry out their responsibilities under the
policy.
G.
Include Harassment as an Offense Subject to Discharge in
Disciplinary Policies
The employer should develop a tracking and monitoring mechanism.
H.
Maintain Records of Complaints and Check Records When a
Complaint is Received to Reveal any Patterns of Harassment
The failure to keep such records could imperil the employer’s affirmative
defense even if its investigation is otherwise acceptable if there were prior
un-investigated complaints involving the same harassing parties. See, e.g.,
O’Rourke v. City of Providence, 235 F.3d 713 (1st Cir. 2001)(employer
made no attempt to keep track of harassers’ conduct); Hatley v. Hilton
Hotels Corp., 308 F.3d 473, 476 (5th Cir. 2002); Harbison v. Pilot Air
Freight, No. IP 99-0882-C H/G, 2001 U.S. Dist. LEXIS 5024 (S.D. Ind.
Mar. 16, 2001); Brooks v. H.J. Russell & Co., 66 F. Supp. 2d 1349 (N.D.
Ga. 1999).
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I.
Develop and Implement Standard Operating Procedures
In addition to the employer’s overall EEO policies and procedures, we
recommend that an employer develop a SOP for the investigation process
that includes the following:




Notification of appropriate management representatives
Investigation procedures
Standardized report format
Procedure to be followed at conclusion of the investigation, etc.
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