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Baby You Can Drive My Car: How to Conduct a Sexual Harassment Investigation – Part 1

This post is the first in a two-part series that will provide guidance and strategies to district and campus administration and HR personnel on conducting effective sexual harassment investigations. Although this article focuses on sexual harassment, the advice in it applies equally to racial, age-based and other types of harassment investigations.

In February 2017, a former Uber employee published a detailed, horrific story of alleged structural sexual harassment at the company. The article described an office culture in which members of an almost entirely male staff were routinely and openly hostile to female employees, from instances of verbal abuse and belittlement to job-based “blackmail” by HR and extensive sexual harassment. Among other things, the author recalls being suggestively coached on her appearance by her manager, his frequent use of striking racial slurs and his disparagement of business “ethics.” The author also described a habit among male employees of creating sexually explicit narratives about female peers and superiors in online group chats. The author alleges that she was propositioned for sex over company chat. When she reported the incident to Human Resources, she says, he did not lose his job because she was told the man was a “high performer” and it was his first offense. She says she later discovered this was untrue: Other women had reported the same manager to HR for similar offenses.

Whether or not the allegations are true, this case is a perfect example of a ‘Human Resources failure’ for how to deal to harassment claims. Here are some basics to a district’s obligations to investigate when an employee complains of harassment.

1. Districts have a duty to conduct investigations. Districts have an affirmative duty to maintain a working environment free of harassment on the basis of a federally protected characteristic, such as race, color, or national origin, religion, sex, disability, age, or genetic information. 42 U.S.C. 1981; 42 U.S.C. 2000e et seq. (Title VII); 20 U.S.C. 1681 et seq. (Title IX); 42 U.S.C. 12111 et seq. (Americans with Disabilities Act); 29 U.S.C. 621 et seq. (Age Discrimination in Employment Act); 29 U.S.C. 793, 794 (Rehabilitation Act); 42 U.S.C. 2000ff et seq. (Genetic Information Nondiscrimination Act); U.S. Const. Amend. I; Human Resources Code 121.003(f); Labor Code Ch. 21 (Texas Commission on Human Rights Act); Labor Code Ch. 21, Subchapter H (genetic information).  Districts can be held liable for failing to take the steps necessary to prevent such harassment from occurring or for failing to promptly correct any harassing conduct about which it knew or should have known was occurring.  29 CFR 1604.11(d), (e), (f); 1606.8(d), (e).
2. Districts may have to take action before conducting the investigation. Based on the allegations and facts of the case, as a precautionary measure, a district should consider whether immediate action is warranted.  The EEOC set forth examples of precautionary steps that may be necessary include:  “scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation.”  However, districts need to ensure that the complainant “should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.”
3. The investigation must be immediate. How soon the investigation must start depends on the circumstances.  In Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708 (2d Cir. 1996), the employer’s response was held to be prompt where it began its investigation on the day the complaint was made, conducted interviews within two (2) days, and fired the harasser within ten (10) days.  In Steiner v. Showboat Operating Co., 25 F.3d 1459 (9^th 1994), the court held that an employer’s response to complaints were not immediate when it did not seriously investigate or reprimand the supervisor until after the plaintiff filed a charge with the state Fair Employment Practices agency, even though the harasser was eventually terminated.  In Saxton v. AT&T, 10 F.3d 526 (7^th Cir. 1993),  the court found that the investigation was prompt when it started one (1) day after the complaint was made and a detailed report was completed two (2) weeks later.  In Nash v. Electrospace Systems, Inc., 9 F.3d 401 (5^th Cir. 1993), the court held that an investigation was prompt when it was completed with one (1) week.  The court in Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317 (7^th Cir. 1992) found that an investigation was adequate when it was completed within four (4) days.
4. The investigator must be experienced, unbiased, and trustworthy. There is no legal prohibition that internal employees, such as Human Resources personnel, cannot conduct investigations into employee complaints.  The investigator does not have to have investigation experience or meet any certain training requirements.  However, districts should take the time to thoroughly train an in-house person who can conduct harassment investigations.  First, the person needs to be able to conduct appropriate investigations in order to limit the liability of the district.  Second, the person’s experience and training will likely be closely examined, if not challenged, by opposing counsel if the case develops into litigation.  Training for potential district investigators could include the law and district board policies regarding harassment, selecting the appropriate investigative process for different types of investigations (i.e., who to interview first), assessing credibility of witnesses, and workplace investigative techniques and report writing.

The investigator cannot have a conflict of interest or bias towards the alleged victim or alleged harasser, so it is very important to select a person who does not have any personal involvement with any of the parties who are a part of the investigation. To avoid the appearance of any undue influence, the investigator must not be subject to any control or supervisory control of the alleged harasser. This means that for some smaller districts or in cases where the assistant superintendent or superintendent is alleged to have harassed someone, it is recommended that an outside third-party or law firm be hired to conduct the investigation.

If you need assistance with a workplace investigation, please feel free to contact me or any other attorney at Leasor Crass, P.C. The next post in this series will be How to Conduct a Sexual Harassment Investigation (Part 2).