Public Interest Investigations

Hard Look

Los Angeles Daily Journal
March 21, 2001
Author: Susan Ortmeyer, PII Legal Director

VIEWPOINT: Investigating sexual harassment allegations may be awkward, but employers can protect themselves by being thorough and fair to both sides.

While the courts continue to define investigative standards, employers are expected to act swiftly to find out the truth and respond appropriately when employees allege sexual harassment.

Employment lawyers can help by working with management to develop sound complaint procedures and by giving in-house investigators adequate training before the investigation heats up.

An unbiased, thorough investigation of a sexual harassment complaint is critical, yet these investigations frequently are derailed by management's denials and reluctance to confront sexual misbehavior. Investigators who are not adequately trained prevent employers from learning the truth.

The 9th U.S. Circuit Court of Appeals measures an employer's liability for co-worker sexual harassment on a two-pronged standard: whether the employer has stopped the current harassment and whether the employer's response will deter future harassment from the same offender or others. Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995).

Even if the employer stops the current harassment, he or she is still liable if the investigation and remedial response were insufficient to prevent future harassment.

Sarro v. City of Sacramento is a case in point. 78 F. Supp.2d 1057 (E.D. Cal. 1999). In that case, even though the city stopped the harassment promptly and disciplined the accused employee, the District Court denied the city's summary judgment motion.

The problem was the city's investigation. Five witnesses were interviewed about the events in question, while 21 individuals were questioned about Sarro's sexual background and history. The investigators asked Sarro herself such questions as whether she had "ever danced on a table top or a platform fully clothed or partially clothed or unclothed" or "danced while ... intoxicated for people or for money." Sarro.

The court denied summary judgment because this "blame the victim" investigation would deter future victims from reporting harassment. Moreover, the investigation was not thorough enough, as the investigators conducted no inquiry into the accused's credibility and interviewed none of his former female co-workers. Sarro.

While Sarro provides an example of an investigation gone wrong, the components of an adequate investigation are difficult to pin down. Each investigation presents its own challenges, and the courts have not yet provided a fool-proof template for investigators to follow.

Nonetheless, some guidelines have emerged from the published decisions:

Choose the Investigator Carefully

Choosing the investigator is one of the most important decisions an employer can make. An independent investigator lends credibility and increases the likelihood that the court will find the investigation adequate. See, e.g., Foster v. Township of Hillside, 780 F. Supp. 1026 (D.N.J.) (employer's investigation adequate where it hired independent arbitrator to investigate charges), aff'd without opinion, 977 F.2d 567 (3rd Cir. 1992).

Many employers, however, understandably object to the use of an independent investigator. Aside from the costs, they are skittish about having an outsider poking into the firm's problems. In these situations, the employee who conducts the investigation should have no obvious conflicts or biases for or against the accused or the complainant. See Scott v. Pacific Gas Electric, 11 Cal.4th 454 (1995).

The employee also should have appropriate investigative training and experience.

Typically, human resources staff with little or no investigative training are asked to investigate such complaints. This inexperience can affect interviews with witnesses about sexual harassment.

While tape recording may work well for some types of interviews, sexual harassment interviews can be embarrassing, and taping may inhibit witnesses' responses. Those investigating sexual harassment should be able to pose delicate questions in a manner that puts witnesses at ease and accurately document what witnesses say in handwritten notes.

Inexperience sometimes will cause investigators to avoid the tough questions or to use vague euphemisms when asking what the accused allegedly said or did.

For example, investigators who are treading too carefully may ask witnesses about "inappropriate behavior" in lieu of questions about sexual language or touching. While this approach may make it easier for an in-house investigator to face witnesses in the company cafeteria later, it won't give employers a clear record of the truth.

Investigators also will confront issues of confidentiality simply because people like to talk. When rumors start floating around the workplace, however, they harm those involved and raise potential retaliation claims. The investigator must know how to strike a balance between revealing enough information so the witness can answer intelligently and withholding information that is not essential.

Interview All Witnesses

A surprising number of investigations are flawed because the employer failed to interview all relevant witnesses.

Both the complainant and the accused need to be interviewed promptly. Complainants need to know that their complaints are taken seriously, while those who are accused need to be given an opportunity to respond to each of the allegations. Cotran v. Rollins Hudig Hall Int'l Inc., 17 Cal.4th 92 (1998) (requiring reasonable investigation before firing employee for good cause, including notice of the claimed misconduct and a chance for the accused employee to respond).

Many sexual harassment cases involve a "he said, she said" scenario, with no independent witnesses.

To overcome this, investigators must interview other coworkers to determine whether the accused has acted similarly in the past.

Courts have deemed investigations inadequate for falling short on this point. Sarro; Mockler v. Multnomah County, 140 F.3d 808 (9th Cir. 1998) ("The failure to interview witnesses is evidence of inadequate remedial action."). If the accused can explain why the complainant might be lying, this needs to be investigated as well.

Make Credibility Determinations

Credibility determinations are another way out of the "he said, she said" conundrum and are clearly permitted in forming a reasonable belief of misconduct. See, e.g., Silva v. Lucky Stores Inc., 65 Cal.App.4th 256 (1998). See also Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, 2 EEOC Compliance Manual Section 915.002 (BNA) (June 18, 1999).

Indeed, courts have criticized investigations in which the investigator failed to make credibility determinations. See, e.g., Kestenbaum v. Pennzoil Co., 766 P.2d 280, 288 (N.M. 1988).

The California Evidence Code provides useful guidelines for evaluating the credibility of witnesses.

For example, investigators may consider the demeanor of the witness; the extent of the witness's capacity and opportunity to perceive any matter about which he or she has testified; any bias, interest or other motive and whether the witness' statements are consistent with previous statements. See Evidence Code Section 780.

Take Appropriate Remedial Action

What the employer does with the results of the investigation is as important as the investigation itself. Fuller, 47 F.3d at 1529 ("[A]n investigation is principally a way to determine whether any remedy is needed and cannot substitute for the remedy itself.").

The facts learned through the investigation should be evaluated according to legal standards, which provide an objective benchmark for determining what action should be taken.

Typically, employers either punish the accused more severely than is warranted, or fail to take any remedial action at all. Analyzing the results of the investigation through a legal lens avoids remedies that are based on subjective notions or assumptions.

Susan Ortmeyer is an attorney with Los Angeles' Public Interest Investigations Inc., where she provides legal guidance to investigators on sexual harassment and discrimination cases.

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