Episode 32: Sexual Harassment at the Workplace

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Cal Chamber's Executive Vice president and General Counsel. Joining us on the podcast today is Lisa Buehler of the Shah Law Group. Lisa is an expert in conducting effective sexual harassment investigations. I'm really excited to have Lisa here today to discuss best practices, new trends, and have her share her experiences in this very important area with us. Welcome, Lisa.

Thank you. Happy to be here.

One thing to note, too. Lisa is a frequent writer for HR California and has also been a guest speaker at our HR symposium. And actually we have one coming up in November, November 8th in Huntington Beach. So she'll be with us then, too. Lisa, sexual harassment continues to be a hot topic not only for employers, but for human resource professionals. And of course, it's also in the media. We've spoken spoken about employers obligations to train supervisors and employees on the podcast in the past. And we also had your colleague Jennifer Shaw on the podcast to talk about men in the MeToo and some of the unintended consequences of the Me Too movement. Today, let's talk about workplace investigations, why we need to do them when they're required, and what you've seen since the MeToo movement. So let's just get started. What are some investigation basics?

Well, investigation basics which have been around for a long time, longer than the MeToo movement started, are that in California in particular, or any employer under Title VII is obligated to conduct an internal investigation whenever it receives a complaint of discrimination of harassment under Title vii. California has adopted a similar standard under our state Fair Employment and Housing Act. And so employers have to investigate, find out what happened, reach conclusions, and take remedial action, if necessary, on the those complaints.

So I understand there's a legal requirement then for employers to investigate claims of harassment or discrimination.

Correct.

What about just someone where Jane comes in and says, Bob's been mean to me or I didn't like the way George looked at me. I mean, do they have to investigate everything?

No. But many of those claims can later turn into harassment or discrimination complaints, and the employer wouldn't know until long after the fact. So it's always a good idea when you think there might be a possibility that one of those could turn into a protected characteristic type complaint. But also, it's just investigations are good ways to resolve conflicts in the workplace when it's outside of the control of the manager, the supervisors who have all been unable to figure out what's going on, why things are happening. An investigation can help you get to the bottom of those kinds of conflicts.

So when I hear the term investigation, I think, you know, FBI, I think, you know, it's this big protracted process. We need to get outside experts. Is it really that big of a deal or does it have to be.

I should say, right, it doesn't have to be. You know, I always say you don't have to do the Cadillac of investigations if the Chevy is going to be good enough. You have to gauge your response to the nature of the complaints, the seriousness of the allegations, the people against the whom the allegations are made. Obviously, a sexual assault type claim against an executive of a company is going to be a bigger deal than employees, co workers, not getting along, or feeling uncomfortable about minor trivial matters in the workplace. So yes, you can gauge your response, your investigation accordingly to those types of issues.

And is this something that employers can do internally as far as conducting their own investigation, or do they need to reach outside?

They absolutely should always try to do them internally when they can. We think that's always the best approach. They go outside for a number of reasons. Either they don't have anybody with the capacity or skill to do the investigation that's required, or if there's a conflict of interest or a perceived conflict of interest, the CEO, the executive level person that I mentioned, your HR person, none of your HR people are gonna to do that investigation because it's going to always have the appearance that they're protecting the boss, so to speak. So often those will go to external investigators.

And when we talk about external investigators, are there certain types of people that an employer should hire?

Yes. In California, if you go external, if you, in other words, if you decide not to do it internally in house, you can hire an attorney who's licensed to practice in California or a licensed private investigator. There's a state law that says for third party investigations they have to be done by those two types of people.

And when we talk about an attorney, can employers call their outside counsel to do it? Or is it really better to have the outside counsel recommend somebody or use somebody separate than your outside counsel?

Probably, you know, any of the three are okay, but if you are going outside, if it's a big enough investigation, a big enough concern that you want to bring in an impartial investigator, then you should probably hire somebody that only works for you as an investigator and isn't your regular counsel. Your regular counsel is not going to want to be called as a witness down the road. And also, also you'll have more impartiality if it's somebody that's never worked with you before and isn't also giving you legal advice on the same issues.

So you have more of a neutral party.

Exactly.

And then it allows your outside counsel to represent you if there's a claim.

Absolutely. And to advise you on the outcome and the remedial measures. Most attorney investigators don't advise employers on what to do at the end of an investigation. So it's always helpful to be able to turn to your regular counsel for that advice.

And before we move on to what you've said, seen as trends and emerging issues from the MeToo movement, going back to just the investigation process, when does an employer know they are done with their investigation? When do you know? Okay, I've done everything I can. And once they get to that point, what's next?

Right. So employers have an obligation to do a fair and thorough investigation. And of course, that will depend on the nature of the complaint. But once you've interviewed, everybody that you reason believe has a likelihood of having some information relevant to the investigation. Once you've chased every lead, once you've gathered what you believe is sufficient information to make a finding, then you're done. Sometimes that takes a little bit longer, sometimes it goes very quickly. But it is important for employers to make those findings. A lot of employers will just throw up their hands and say, well, I don't know, it's a he said, she said, she said, she said. And they don't make findings. You can always make findings. You just have to look at the evidence and weigh it appropriately.

And what do you mean by findings?

Oh, the factual findings of what you, as the investigator determined happened, who said what, when, where, how did it happen, who touched whom, whatever the allegations are, you're going to be looking at the information that you get from the witnesses, from the documents, and then through looking at that and weighing it accordingly, you're going to find which account is more believable, more credible, and make a determination as to whose account to rely on and then make your findings accordingly.

Do you find oftentimes in your practice and when working with employers a common theme of, well, an employee is worried that somebody else is going to find out that whole issue of confidentiality.

Yeah. Often it's not just the complainants who worry about that. Third party witnesses, other employees who are brought in to talk in an investigation, they worry about that as well. And we do our best to reassure them that the process is as confidential as it can be. But there has to be a certain amount of transparency in these processes. It's not fair to the complainant or the respondent to do it in an anonymous manner or to do it in a way that's so confidential that people aren't given full and fair opportunity to respond to the complaints. So it comes with the territory. Unfortunately, when you bring an internal complaint, that there is going to be people looking at and talking about the allegations, but that's how we get to the information that we need to make the findings.

And I think that's really important because it seems to me that in the wake of the MeToo movement, we are finding more and more victims feeling confident to come forward. But there is always that concern of, well, I'm worried about losing my job or I don't want other people to find out. So this concern about confidentiality is a theme that's going through the entire harassment prevention issue, so to speak. So when we are talking about confidentiality and folks coming forward, one of the things I noticed when the MeToo movement started, and it's been almost a couple years now, is that a number of the complaints were old. In other words, you know, victims are coming forward, talking about events that had happened three or four years prior. Is this something that you're starting to see more increasingly?

Yes, that has been one of the. The biggest trends in my Observation from the MeToo movement is a lot of employees are coming forward and raising complaints about misconduct that happened years ago, and they feel confident and supported and empowered to bring these claims.

That's a good term, empowered.

Yeah. And it's a challenge for the employer. It's a challenge for the investigator. Often there's nobody still left at the organization that could have witnessed the incident. Sometimes the documentation has been purged or deleted as part of normal business practices. It can be really difficult to investigate those, but the employer has the same obligation to do so, or at least to take the same remedial action. And of course, if the responding employee is no longer at the organization, well, that's going to weigh into how an employer responds to a stale complaint like that.

So, you know, there's that whole statute of limitations that extends to a number of things. Right. You only have a certain period of time to bring a lawsuit if you're in a car accident. It seems to me then with these complaints, there is no statute of limitations as far as the obligation of an employer to conduct an investigation, no matter how old that complaint might be.

Well, I mean, technically, no, it's because it's not a legal proceeding. The statute of limitation applies to an employee. Employee's ability to file first an administrative charge with the Department of Fair Employment and Housing. And boy, two years, I think it now is. It might be a year, don't quote me on that because I don't do litigation anymore. And then of course, to bring their actual lawsuit. But for an employer's response, no, there is no statute of limitations. And it is going to come down to weighing both the challenges of doing an investigation on such a stale complaint to the benefits of doing one. But I do think that a lot of benefit can come from investigating a stale complaint because you might determine that there were things happening that made it difficult or impossible for the complainant to come forward. And those might be deficiencies that you would want to remedy to make sure that in the future more employees knew how to complain or knew the process to complain so that you aren't dealing with these older complaints.

And in your experience with some of these quote unquote stale complaints, are you finding that they are uncovering contemporary issues as well or contemporary wrongdoing within the organization?

Sometimes, yeah. Ongoing behavior, behavior that has never been addressed, even if, say the original perpetrator, so to speak, has left the organization? Yes. We might see a level of tolerance in certain work units for more casual, relaxed behavior that is uncomfortable for some people. So yes, even if the actual complaint itself is stale, it can lead to information that's helpful to the employer to make sure that they can make the workplace as neutral as possible for their employees.

It almost sounds like some of these quote unquote stale complaints really speak to company culture too.

Very much so.

Let's shift to another type of conduct that seems to be becoming more prevalent when it comes to complaints made to hr. And that has to do with those off duty activities or off duty conduct. Can you speak a little bit to that?

Yeah. So first of all, it's becoming harder and harder to define off duty. You know, my husband's employer, they eat, sleep and play at that, at that building. Something that the corporate culture encourages, especially people who are newer to the workforce. They're having things three meals a day at work and they're socializing late into the hours with their co workers, either on the premises or at a bar. So off duty is getting harder and harder to define for non managerial employees. You know, off duty conduct is just that employers can't really address it. You can't go tell me as an employee what clubs I can belong to and what I can do on my free time. But if your off duty conduct is going to impact a co worker so negatively or severely that it spills over into the workplace, then it becomes the obligation of the employer to remedy that. Of course for managers there is no off duty conduct. They are in a managerial capacity 24 hours a day. So if they go to a bar, drink too much and misbehave, that's conduct that the employer can and has to address through their processes.

Okay, so that certainly is a little bit more complex in this day and age, like you said, where employees are doing a lot of things together and the off duty on duty is becoming increasingly blurred. But I like your emphasis on the fact that managers and supervisors have a heightened duty, that they are never off duty when they're surrounded by employees. When you talked about subordinate employees or non managerial employees, off duty is off duty, but the issue becomes when it spills into the workplace. Could you give us an example of that?

Sure. So if co worker employees are at happy hour after work and there is some heavy flirtation and one party is more receptive than the other party, let's say a woman is offended by the flirtatious conduct of a co worker at a bar. She comes into HR on Monday morning and said he made me very uncomfortable and I'm uncomfortable here at work because I'm afraid he's going to do it again. Right then she's brought it into the workplace. Now that doesn't mean that that other employee has done anything wrong, but that's a heads up to the employer that a brief conversation might be in order to alert the male employee that the female employee wasn't comfortable with the conduct and does not want it to occur in the workplace. To sort of stay vigilant, keep track of that dynamic, make sure it doesn't worsen in any way. So it hasn't yet spilled over into the workplace. But the female employee has alerted HR that she's uncomfortable with it and that's a good opportunity for the employer to address it. With luck to be able to prevent it from turning into a.

For it to continue or to spill into the break room or with some comments or whatever might happen after the fact.

Right.

Okay. Well, I'm afraid we're run out of time. Always great topics to talk about on the podcast, but we covered a lot of really important information as far as, you know, employers obligation to investigate. What are we about talking, seeing or what you are seeing over the last couple years since the MeToo movement. Could you just maybe give a couple of best practices as we close the podcast today?

Absolutely. I already touched on one which is always try to make findings in your investigations and insist that any outside investigators do so. That's why you hired them, for their expertise. Don't walk away from an investigation saying, I don't know what happened. You can always make findings, get the training you need, get the support you need, but you can make those factual findings. Do your investigations promptly, like we talked about with the stale investigations. It's harder to do investigations when people's memories have failed. Your complainants are gonna be very appreciative of that. Your respondents are gonna be appreciative of investigations getting done quickly so everybody can get back to work. And you'll be meeting your legal obligation to do investigations in a timely manner. And just, you know, be fair. Be thorough, but be fair. And don't feel like you have to know the truth. We're not mind readers. Like, we're not doing these at a criminal standard. It doesn't mean that you can't come to good findings, good conclusions, but don't get bogged down in the idea that you have to know absolutely everything that happened.

Well, thank you, Lisa. I really appreciate it. And that's a great, great note to end. Thanks for joining us at the workplace. Please comment, share and subscribe to Cal chambers podcast@calchamber.