The Importance of the Investigation
There are two forms of sexual harassment in the workplace. The first is called "quid pro quo" harassment, and occurs when a supervisor (or someone with authority) offers job benefits or threatens adverse action, in exchange for an employee's acquiescence to sexual requests. The second is "hostile environment" harassment, and occurs when a supervisor or coworker creates an abusive work environment, or interferes with an employee's work performance, through words or deeds.
Once aware that sexual harassment may be occurring in the workplace, an employer has a legal obligation to take prompt measures to end it. The first step in this process is investigating the complaint. Employers often win or lose sexual harassment cases based on the quality of the initial investigation. Typical mistakes, which result in employers losing harassment cases, are the organization's failure to:
- Follow its own harassment policy and complaint procedures;
- Interview all the relevant parties involved in the allegation; and
- Initiate and bring closure to the investigation as quickly as possible.
On the other hand, some courts have held that an employee' s failure to use the employer's sexual harassment policy may be fatal to the employee's claim, because an employer cannot be charged with knowledge of harassment if an employee does not utilize complaint procedures.
The Harasser as "Victim"
Individuals terminated for violating an employer's sexual harassment policy are increasingly suing employers under various discrimination or retaliation theories. In these cases, the terminated employee often attempts to turn the case into a credibility contest with the victim regarding whether the harassment actually occurred. State and federal courts confronting this new wave of lawsuits generally hold that whether the initial harassment claim is true is largely irrelevant; rather, the only relevant inquiry is whether the employer conducted a good-faith investigation and did not terminate the employee for arbitrary or pretextual reasons. In fact, in Cotran v Rollins Hudig Hall, the California Supreme Court recently set aside a $1.78 million jury verdict for a terminated sexual harasser. The Cotran court decided that the employer could not be held liable under a wrongful discharge theory, because the employer had established that a prompt and thorough investigation of the matter had been conducted, and that the employee was discharged based on a good faith belief that he had violated the employer's harassment policy.
Waiver of Attorney-Client Privilege
Employers should also be aware of the ramifications of using legal counsel to investigate sexual harassment complaints. If there is litigation regarding a harassment claim, one of the employer's likely defenses will be that it promptly investigated the complaint and took appropriate action. However, Courts increasingly are holding that if the company's attorneys are directly involved in the investigation, the attorney-client privilege cannot be invoked to resist disclosure of materials relating to the investigation. As one court recently explained: "The defendant cannot have it both ways . . . if an employer hopes to prevail by citing its prompt and complete investigation of the employee's complaint . . . it will have to put the adequacy of the investigation directly at issue and cannot assert any privilege to preclude a thorough examination of its response to the charge." Wellpoint Health Networks v Superior Court of Los Angeles County, (Calif Ct App, 1997).
EEOC Wins Major Victory in Mitsubishi Case
A federal district court in Illinois recently broke new ground in the much-publicized EEOC v Mitsubishi, holding that the case could proceed to trial as a class action (or "pattern and practice" case), with the EEOC representing 300 female employees who allege that Mitsubishi had knowledge of, and tolerated, a sexually hostile work environment at its manufacturing facility in Normal, IL. The court went so far as to hold that the EEOC could request, on behalf of all 300 employees, not only an order from the court halting the illegal conduct, but also monetary damages for each employee who can prove actual harm caused by the hostile work environment. The court explained that when harassment occurs frequently enough ,and is both common and continuous, an employer is on "notice" of a severe and pervasive problem that must be remedied. EEOC attorneys already are preparing to advance the Mitsubishi decision as a nationwide model which other courts should follow. The stakes for employers will be high if the EEOC is successful, because if an employer fails to address pervasive harassment problems on a company-wide basis, rather than just addressing individual complaints, there may be a risk that any litigation arising from the work environment could be expanded to include significant portions of the workforce.
Supreme Court to Decide Harassment Cases
The United States Supreme Court has heard three cases dealing with important issues in the area of sexual harassment. In Faragher v City of Boca Raton, the Supreme Court will decide when "notice" of sexual harassment can be inferred to an employer. In Faragher, the federal appeals court decided that the city could not be liable for a sexually hostile work environment created by two supervisors at a remote work site. Although the plaintiffs presented evidence that they had lodged complaints regarding the behavior to several supervisors, the lower court determined that the city had neither actual or constructive knowledge of the conduct, because the supervisors receiving the complaints were not in the chain of command, and the conduct occurred at a remote site where the city could not be said to be "aware" of it.
In Oncale v Sundowner Offshore Services, Inc, the Supreme Court just decided that the prohibition against sexual harassment in Title VII of the 1964 Civil Rights Act also encompasses "same sex" harassment. In Oncale, the male plaintiff alleged that male supervisors and coworkers harassed him and that his employer did nothing about it.
Finally, the Supreme Court agreed to decide in Ellreth v Burlington Industries whether employers can be liable under a "quid pro quo" sexual harassment theory, where the victim neither submitted to a supervisor's sexual advances nor suffered tangible harm, such as termination, demotion or reduction in compensation. In Ellreth, the federal appeals court ruled that the employer could be held liable, even though the supervisor was rebuffed in his sexual advances and never carried out his threats to fire the victim. Federal courts have split on the issue of whether the victim must establish some tangible job detriment in quid pro quo harassment cases.