Monthly Archives: November 2017

“If True”: How to Assess Credibility in Sexual Harassment Investigations

“If these allegations are true” has been the most hotly debated qualifier used by politicians recently in reaction to all of the sexual misconduct accusations in the news.

While many politicians use the phrase out of cowardice to avoid taking an actual stand on an important issue, there is an underlying point: it is a necessity to determine credibility when someone has been accused of sexual misconduct.

Having conducted sexual harassment investigations many times during the last 25 years, I’ve often been required to determine if a victim is telling the truth or whether the accused is believable. Juries have to do the same thing.

Even if the case never goes to trial, employers have to make decisions about the right steps to take when a man (and yes, it is almost always a man) is accused of being sexually inappropriate in the workplace. The company looks to me for guidance on that decision if I am conducting the investigation or if I’m defending the employer when a claim of sexual harassment has been brought.

The first step in determining “if true” is to believe the accuser. I know that irks some people, but I have experienced too many situations where the boss’s first reaction is to tell the victim, “Don’t worry about him, Honey. That’s just the way he is. It doesn’t mean anything.”

That is an actual quote from a sexual harassment case that I handled, but I have heard variations of that speech dozens of times in my legal career. If that is the employer’s attitude, the company has already made a credibility determination without investigation—the woman is unworthy of being taken seriously after she got up the courage to complain.

Remember that believing the victim is only the first step in the process, not the end of it. That step should be followed by a prompt, fair and thorough investigation conducted by someone who does not have a horse in the race.

A sexual harassment investigation should involve interviewing the victim, any witnesses and the accused, and also reviewing documents, policies and other proof, which usually includes pictures, emails, texts, phone records, internet searches, calendars, greeting cards, and recordings.

When I am doing an investigation, I have to make a judgment about whether each witness is believable. So, my questions don’t just center on the alleged events, but also on motivations, timing, relationships and track records.

Here’s what I look at in determining whether the person I am talking to is believable: Continue reading “If True”: How to Assess Credibility in Sexual Harassment Investigations

No Peeking! Social Media in Hiring

Can the company recruiter review an applicant’s personal social media accounts before making a hiring decision? Yes, in Texas, an employer may look at any public postings, but there are enough legal risks that I would discourage you as an employer from peeking.

Why shouldn’t an employer take advantage of the wealth of information that may be available on an applicant’s Facebook page, even if the employer hasn’t “friended” the applicant? Because much of the information you could discover on an applicant’s social media is not job-related, and therefore becomes the basis for a discrimination claim.

Because many people are careless about the privacy controls on their social media profiles, you may find out that your applicant has a disability that was not obvious during the interview, but comes more clearly into view when you read the “I’m praying for you” messages on the applicant’s Facebook page. Are you going to violate the Americans with Disabilities Act by failing to hire the applicant now that you know this information?

You may discover that the applicant is pregnant when you see that she announced the exciting news on Twitter. “But I want to know if she is pregnant, so I don’t lose her for twelve weeks next year,” you will tell me.

In response, I’ll refer you to the recent case of United States Equal Employment Opportunity Commission, et al. v. Brown & Brown of Florida, Inc., in which an applicant was offered a $13.50 per hour job with an insurance brokerage that she joyfully accepted. She told her old employer she was leaving. She followed up with the new employer and asked about the company’s maternity policy, revealing that she was pregnant. Her job offer was revoked by the brokerage that same afternoon. That revocation decision cost the brokerage $100,000 because it violated the Pregnancy Discrimination Act.

So, do you really want to know what you may find out on social media? Three-quarters of all Human Resources professionals surveyed in 2013 by the Society for Human Resource Management said that they do not screen personal social media accounts because they fear what they will find. I advise my employer clients to exercise the same restraint.

But if you insist on peeking:

  • Screen all or none. Your electronic screening history will be subpoenaed in any discrimination claim and it will be apparent if you only screened women, for example, to see if they have young kids that might affect their attendance.
  • Don’t ask for the applicant’s passwords to their social media accounts. Many states have passed laws banning this practice and any jury that hears that you made that request will hate your guts.
  • Getting a third party to screen for you requires that you follow all of the complex requirements of the Fair Credit Reporting Act (prescreening notice, summary of rights, pre-adverse action notice, time to correct the record, post-adverse action notice).
  • Be careful what action you take once you have screened. If you determine that the applicant is transgender, Muslim, disabled or pregnant based on her FB page, are you going to risk a discrimination lawsuit by not hiring her? This is when you need to get your employment lawyer involved.
  • What if you see posts or pictures that cause you to believe that an applicant could be a threat to other employees? If you hire him anyway, you can be sued for negligent hiring if he ever becomes violent at work.
  • If you see a post reflecting union activity or protected concerted activities (discussing wages or terms and conditions of employment, such as complaining with a coworker at a former job), any adverse action you take involving that applicant could violate the National Labor Relations Act.

I don’t include LinkedIn when I am advising employers to stay away from an applicant’s social media pages. LinkedIn and similar industry sites are commonly used for business and not social purposes. Applicants are generally much more discrete about what they post on their LinkedIn pages.

In addition, posting company job openings on social media and using a service like LinkedIn to attract passive and active job applicants is common now and doesn’t run the same risks as peeking at an applicant’s personal social media pages.