Conducting an Investigation

An employee just made a complaint of harassment or discrimination. You know you have a duty, as the employer, to investigate the employee’s complaint, but aren’t entirely sure how to conduct the investigation. Here are a few tips:

1. Understand the complaint. Take time to listen to the employee’s complaint. Understand what the employee is telling you by asking open-ended questions. Tell the employee that you are glad they brought the problem to your attention and you intend to act upon the complaint. Consider whether the complaint, if true, violates the law or company policies. Complaints that violate the law or company policies need to be investigated further.

2. Take Action. Determine if immediate action needs to be taken based on the complaint. Is the allegation serious enough to warrant a suspension or leave of absence for the harasser during the investigation? Are there documents that need to be preserved immediately? Are there computers or computer records that need to be preserved?

3. Determine who will conduct the investigation. If possible, the investigator should be someone outside the chain of command for the complaining employee. In some situations an outside investigator may be necessary. Limit the number of people involved in the investigation.

4. Plan the investigation. Take time to map out your investigation. Who needs to be interviewed? Where will the interview take place? What questions need to be answered? What documents need to be reviewed? Create an investigation log to record every step you take during the investigation.

5. Conduct interviews. If possible, being the interview process with the complainant. Ask open-ended questions, then more specific questions. Delve into inconsistencies, weaknesses, or contradictions.

6. Update and revise your plan based on the interviews. Continue requesting documents based on the interviews.

7. Make a conclusion. The point of the process is to determine if action needs to be taken based on the complaint and what action needs to be taken. Assess credibility. Review notes and storylines. Find facts that support your conclusion.

8. Follow-up with the complainant. Regardless of your conclusion, discuss the conclusion at some level with the complainant.

An investigation can provide an employer with a good defense if litigation ensues. But more than that, it tells employees that you take complaints serious and you want to keep your workplace free from harassment and discrimination.

U.S. Supreme Court Narrowly Defines Supervisor

On Monday, the Supreme Court issued its decision in Vance v.  Ball State University.  The issue decided was which employees constitute "supervisors" for the purpose of applying Title VII anti-discrimination laws.  I previously discussed the importance of this question.  

In a 5-4 decision, the Court decided that an individual is a supervisor only if he or she is empowered by the employer to take tangible employment actions.  The court defines "tangible employment action" as the ability "to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision cause a significant change in benefits."  Individuals without such authority are not supervisors.

The Court provides a variety of reasons to support its determination, including its easy application and congruence with the reality of the workplace.

The Court's decision does not shift the legal framework present in the 8th Circuit as the definition adopted by the Supreme Court is the one that has historically been applied.  This is good news for employers in Iowa.  

What is a Hostile Work Environment?

The term "hostile work environment" gets used frequently by employers and employees. It's used in a so many contexts that it seems to have lost true meaning. Hostile work environment allegations range from employees being micro-managed to employees being ridiculed because of their sexual orientation. So what does hostile work environment mean and when is an employer liable for a hostile work environment?

A hostile work environment is harassment that is so severe and pervasive that it interferes with an employee's ability to perform his or her job. The frequency of the conduct, the severity, whether the conduct is physically threatening or humiliating, and the extent it interferes with work performance are all important considerations when determining whether a hostile work environment exists. The unwelcome conduct can come at the hand of supervisors, co-workers, customers, contractors, or others employees interact with. 

 

But, not all conduct that interferes with an employee's ability to perform his or her job is actionable. A valid hostile work environment claim arises when the conduct is based on a protected class e.g. race, gender, religion. A supervisor who makes an employee's life difficult simply because the supervisor doesn't like that employee doesn't necessarily give rise to a hostile work environment claim. (However, it may not be advisable to allow a supervisor to treat people poorly based on personal likes and dislikes). Other potential claims exist, but courts are generally slow to find employers liable because of personality conflicts within the workplace.

US Supreme Court to Decide Who is a "Supervisor"

Late last month, the U.S. Supreme Court agreed to hear argument in Vance v. Ball State University. The facts of the case are not novel. Vance, an African-American, alleged that certain supervisors and co-workers discriminated against and harassed her based on her race. In one short paragraph, the Seventh Circuit determined that one of the purported supervisors was not a supervisor because that individual did not have the power to hire, fire, demote, promote, transfer or discipline Vance. It then moved on to deal with the remaining individuals and claims. 

It is that short paragraph from which the issue arises. That being, whether "supervisor" liability under Title VII applies to harassment by those whom the employer vests with authority to direct and oversee their victim's daily work or is limited to those who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim. The distinction is important because under Title VII employers are strictly liable for harassment perpetrated by "supervisors". Alternatively, employers are liable for harassment perpetrated by co-workers only if the employer was negligent in discovering or remedying the alleged harassment. Roughly, an employer who takes preventative and corrective steps can avoid liability in co-worker harassment situations but not in supervisor harassment situations. 

 

The Eighth Circuit, of which Iowa is a part, agrees with the Seventh Circuit--only those who have the power to hire, fire, demote, promote, transfer, or discipline are supervisors. Therefore, if the Supreme Court agrees with the Seventh Circuit not much will change with respect to how cases are decided in our jurisdiction. If, however, the Supreme Court decides that supervisors include those who direct and oversee daily work employers in Iowa will be open to increased risk in harassment lawsuits. 

 

Oral argument in this case should occur in the Fall, with an opinion sometime after that.

A Lesson in Preventing & Correcting Discrimination

A recent 8th Circuit decision demonstrates the importance of responding investigating and responding to claims of harassment and discrimination.  In Crawford v. BNSF Railway Co., the plaintiffs alleged that their supervisor sexually and racially harassed them on a frequent basis.  The court granted judgment in favor of the employer because the employer was able to show that it acted reasonably to prevent and correct any sexually harassing behavior and the employees failed to take advantage of the preventive and corrective opportunities provided by the employer.

The employer not only distributed its anti-harassment policies but also followed the policies.  The company had counseled the alleged harasser previously about workplace behavior and required him to attend a seminar.  The company had a hotline employees could use to make complaints.  The company investigated each and every complaint it received through the hotline.  Upon notice of the plaintiffs' complaints, the company placed the alleged harasser on administrative leave, investigated the complaints, and terminated the alleged harasser within two weeks.  The court found these facts, coupled with the plaintiffs' failure to take advantage of the complaint process or hotline, granted judgment in favor of the employer.

As an employer, you cannot prevent an employee from asserting a claim, but you can decrease your potential liability by following a few steps:

1.      Adopt and distribute anti-harassment/discrimination policies.  If you don't have any policies that prohibit harassment and discrimination adopt them now.  Make sure your employees know that you have the policies and give them a copy of the policy.

 

2.      Educate your employees.  Ensuring that your employees understand the policy means more than handing it to them on the first day of work.  Hold periodic training with your employees that depicts illegal discrimination or harassment and educate them on the appropriate ways to report potential discrimination or harassment.

 

3.      Investigate all complaints.  When an employee complains of potential discrimination or harassment investigate the complaint.  Do not dismiss a complaint because it doesn't seem valid on its face.  Interview potential witnesses, talk to managers, make a written report.  Obviously, the seriousness of the complaint may warrant a more detailed investigation, but all complaints should be afforded some level of investigation.

 

4.      Take action.  Taking action doesn't always mean discipline or termination.  You may discover that certain employees need additional training or counseling.  Sometimes a complaint cannot be substantiated.  Even in those situations, take action by following-up with the complaining employee and making a written record of your investigation.

Having a proven track record of viewing complaints as serious demonstrates to the court that your company is committed to preventing and correcting discrimination and harassment in the workplace.

The Often Overlooked Protected Class: Transgender Employees

Transgender individuals are a protected class under the Iowa Civil Rights Act and, although, not specifically identified under federal law may be protected under Title VII's prohibition of "sex" discrimination. Thus, it is important for Iowa employers to be familiar with transgender issues and steps that can be taken to prevent discrimination.

Transgender or gender identity disorder is not the same as homosexuality or sexual orientation. Transgender is when a person's gender identity doesn't match his or her genetic sex. Individuals may attend counseling and sex reassignment therapy, hormone replacement therapy and possibly gender reassignment surgery. These different treatments may result in an employee representing himself or herself as the gender corresponding to their identity, becoming more masculine or feminine and ultimately changing his or her gender completely.

 

Employers must be careful to prevent discrimination based on nonconformity with gender stereotypes. This duty applies to all employees, regardless of their status as transgender. Female employees may not be discriminated, harassed or retaliated against because they are not "feminine" enough. Similarly, male employees may not be discriminated, harassed or retaliated against for not being "masculine". Additionally, employers may be required to allow transgender individuals to "cross-dress", reference employees with appropriate pronouns, allow use of a restroom that corresponds with gender identity, or provide time off for medical appointments.

 

While transgender employees may not be prevalent in your workplace, it is important that you understand their rights and your obligations before a problem arises.

Starbucks Says "Stools Are Dangerous"

A Starbucks employee who was also unfortunate enough to be a dwarf was terminated after asking for a stool to perform her job.  Starbucks claimed the stool would present a danger to other employees or customers.  The EEOC has filed a federal lawsuit against Starbucks under the Americans with Disabilities Act for refusing to provide a reasonable accommodation to the employee and terminating her.

I try to give the benefit of the doubt to all parties--at least initially--but I'm not certain what Starbucks was thinking.  This may be a good case of "what not to do" when confronted with a request for a reasonable accommodation.

What should Starbucks have done?  At the very least, it should have had a discussion with the employee before apparently acting so rashly.  At the most, it should have provided the stool and let her complete her tasks and keep her job.

Be Careful What You Say

Beside the fact that discriminating against prospective employees could land your company in litigation hot water, it may come back to bite you later on. Most people have heard of Roe v. Wade but haven't heard of Sarah Weddington, the attorney representing the woman seeking an abortion in Roe v. Wade. According to an ABA article, Weddington may not have had that opportunity had she been given a fair chance at a Dallas law firm. During the interview process, the law firm questioned her ability to work the long hours and still make it home to cook dinner. They were also concerned that they couldn't cuss her out as much as male associates. She didn't get the position, but she didn't file a lawsuit. Years later, when she was advising President Jimmy Carter on women's issues and judicial appointments, a senior partner in that same Dallas law firm wanted to be a federal judge. He didn't get the position.