Friday, March 18, 2011

Sherlock Holmes Would Be Appalled: Workplace Investigations?

Federal and state statutes and case law generally anticipate that a workplace investigation is an important employer tool that will prevent discrimination and harassment, and even result in some discipline of offenders.  I'm sorry to say I have a different impression of just how these investigations actually work.  They are more often used by employers as "weapons of defense" rather than as "tools of prevention."

Federal law has long given an employer an affirmative defense that an employer is not liable for harassment which is not reported by the alleged victim [at least in cases where there has been "no tangible economic harm."].  California follows an affirmative defense of "Avoidable Consequences."  To the extent the harassment victim could have herself or himself prevented the harassment by reporting it to the employer, the employee is barred from recovery of damages for the period of non-reporting.  Bottom line:  the courts want employers to police themselves.

Instead, many Human Resource departments place their priority on creating legal documents under the direction of legal counsel. The result is an nearly inevitable conclusion of "no evidence" to support the allegations or at best, that there is "some information" of inappropriate conduct but not sufficient to find discrimination or harassment.  These findings, unsurprisingly, seem more likely to be made when the accused is high in the management hierarchy.   In my 17 years of employment law practice, I have not seen one investigation conclude that sexual harassment or other discrimination have occurred.

I really wonder what standard many so called "investigators" actually use in reaching conclusions of "no harassment.".  While proof by admissible evidence in court is not required (or desirable), it seems to me that the standard, at least in California, is whether the employer "acted reasonably" in making a decision to discipline (or forego discipline) of an accused.  That "reasonableness" standard has to be examined in the context of the legal definitions of harassment.  An investigator who does not at least know what "harassment" and "discrimination" are under the law is in a very poor position to reach conclusions.

I have had situations where my clients explain to me that they felt they were under cross-examination by the "investigator" who seemed to challenge their accusation by demanding that my client must have a direct statement by the discriminator of dislike of persons of my client's age, race, or gender.  That is not the law itself, which allows for indirect and circumstantial evidence, such as different treatment, and lack of evidence to support disciplinary action against the protected employee.

Also, many investigators seem to think that by surprising the employee with the investigation, they somehow get better, more reliable information.  Surprising an employee simply serves to get unreliable and incomplete information because the employee has not had time to recollect and organize the information.  The situation is even worse then an attorney is selected to conduct the investigation.  Then the questions seem even more adversarial.

For example, one client shared with me that the interrogator asked repeatedly:  "Is that all the information you have to support your charge of harassment?"  or  "Is there anything else you can think of that would support your charge?" or even:  "What evidence do you have that discrimination occurred?"  These are "deposition style" questions used to "lock in" a witness early to a position to prevent more information coming to light later as the employee remembers other matters.  The questions are not intended or designed to elicit all the facts impartially.   The reason the questions are unfair is that most employees do not know the legal definitions of discrimination and harassment, and think they must have direct evidence, and so will answer:  "Well, I guess that's all.  I don't know of anything else."  If you are an employee in such an "investigation" be sure to say "I may think of more later, and I will let you know," or "I felt these actions were discriminatory, and so I'm listing them all, even if you don't agree."

Another gripe of mine is that an investigation delayed is no investigation at all.  The investigation is part of a general duty to prevent discrimination and harassment, and to take prompt corrective action.  There are two goals:  protect employees from discrimination, and yes, let the harasser and others like him or her know that such conduct is punished.  I have seen many H.R. departments simply ignore or casually respond to complaints that the law requires to be promptly investigated.  The result is liability upon the employer for failure to prevent harassment or retaliation that may thereafter occur.

In conclusion, if Sherlock Holmes were asked why many workplace investigations fail to meet the requirements of the law, I suspect he would answer:  "Elementary my dear Watson."