Sexual Harassment and Hostile Workplace Investigations
Responding to Employee Complaints and Misconduct in CA — without Getting Sued!
Harassment is offensive, unwelcome conduct (whether words, actions, gestures or visual displays) or statements that are so severe or pervasive that it affects the terms and conditions of the victim’s employment. Making it difficult for the victim to perform their job because of constant ridicule, belittling comments, teasing or sexual “come-ons” and advances is referred to as “hostile workplace” harassment.
Just what is workplace harassment?
Harassment, whether sexual or hostile, is an offshoot of the laws that prohibit discrimination---which means that harassment is illegal only if it is based on a person’s race, gender, age, disability, or other protected characteristic. These characteristics are determined by federal laws-such as Title VII, the Americans With Disabilities Act and the Age Discrimination in Employment Act-and by state and local laws that prohibit discrimination.
Here are some workplace examples:
- An employee tells you they saw someone take an expensive piece of equipment from the building.
- An employee comes to you and reports that he/she was sexually harassed by an employee or a supervisor.
- An anonymous tip indicates that threats and coercion are creating a
hostile workplace environment
- An employee reports that a co-worker is violating a company policy.
How you respond to sexual or hostile harassment complaints like these could make the difference between a prompt and effective resolution of the matter and an expensive lawsuit. In cases involving allegations of sexual harassment or workplace safety violations, California law actually requires employers to investigate. When you uncover employee wrongdoing, or an employee comes to you with a complaint, you have to be ready to investigate!
What's the Difference Between a Sexual Harassment Investigation and a Sexual Discrimination Investigation?
In sexual harassment investigations, the words "harassment" and "discrimination" are oftentimes used interchangeably by the complainant and witnesses. Even formal complaints drafted by the lawyers allege the same exact incidents to form the basis of the "Sexual Harassment Cause of Action" and the "Sex Discrimination Cause of Action."
Sexual harassment is a subset of sex discrimination, but they are not supposed to always be completely identical claims, although they can sometimes be identical. Occasionally, the line between the two is blurry and the workplace investigator (or EEO investigator) needs to determine whether the alleged conduct violates one or both policies of the employer.
In California, only the employer can be held liable for "discrimination", but the employer and any employee can be held liable for "harassment". As a recent blog post by Attorney Jeff Polsky of the law firm Fox Rothschild said:
"One rationale for the difference is that discrimination involves official actions of the employer (e.g. hiring, firing, promotion, demotion). Harassment, in contrast, focuses on things an individual can do (or say) to make the work environment hostile."
In the recent California Supreme Court case, Roby v. McKesson, the Court examined the legal definitions of each, as follows:
Discrimination refers to bias in the exercise of official actions on behalf of the employer, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.
Harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace. It focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.
The lower court (in Roby) had ruled that personnel management decisions could not support the harassment claim because they were part of the discrimination claim. However, the Cal. Supreme Court in Roby disagreed with the idea that the same conduct couldn’t be both discrimination and harassment. The Court reasoned that official employment actions (i.e. discrimination) can communicate a hostile message (i.e. can be harassing).
A harassment lawsuit will need to very carefully evaluate the facts to determine whether "personnel decisions" (such as demotion, failure to promote, firing, transferring, etc.) were carried out in a way that sent a "harassing" message to the complainant, and if so, a managerial employee could potentially violate a "harassment" policy by virtue of a personnel decision.
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If you are an HR Consultant, or other 3rd Party/outside resource who conducts sexual harassment investigations for your client, you should call your attorney. According to the Business and Professions Code, 3rd party investigators must be a licensed (CA) private investigator or attorney. If the case you investigate is ever challenged, you put the integrity of that investigation and any related decision vulnerable to attack. This is a serious ethical issue.
If your company uses outside resources to conduct your sexual harassment investigations, be sure to consult with your legal counsel before proceeding.