Category Archives: Investigation

Five Steps for Responding Well to Harassment Claims

Two nooses hanging near a loading dock and racist graffiti on a company truck designed to be seen by the company’s African-American employees will almost certainly lead to an expensive racial harassment lawsuit against a business, but the federal Fifth Circuit Court of Appeals recently sided with an employer who promptly took five comprehensive steps in response to this reprehensible conduct.

In its June 2018 opinion, the Court held that YRC, the employer, responded appropriately to these incidents at its Irving, Texas facility. The opinion gives all employers helpful guidance on how to combat harassment in the workplace. Tolliver v. YRC, Inc. (5th Cir. 2018).

It is important to note that the Court acknowledged that the racist actions were “morally unacceptable” and “reprehensible. But the plaintiffs didn’t allege that the acts were directed specifically toward them and “for the most part, learned about the acts secondhand”. So, the Fifth Circuit did not find that this conduct was sufficiently severe or pervasive enough to change the terms or conditions of employment as to these particular employees, meaning that their personal racial harassment claims weren’t strong to begin with.

But what really mattered to the Court is that the employer took prompt remedial action to protect all employees after these horrifying incidents occurred. The steps YRC followed offer guidance for all employers facing any kind of harassment situation, whether involving racial harassment, sexual harassment, ethnic harassment, etc.

Let’s call these the Five Steps to Responding Well to a Harassment Claim: Continue reading Five Steps for Responding Well to Harassment Claims

Sexual Harassment Focus Should Prompt Employer Vigilance

To no one’s surprise, my life as an employment lawyer for the last two months has focused primarily on one issue—sexual harassment. I have conducted several investigations and advised numerous employers on this issue recently because the national news and the #MeToo movement have had a direct impact on employers in the Texas Panhandle area, including some of my smaller employers.

Female employees nationwide and locally obviously feel freshly empowered to say something about any mistreatment and to expect that their complaints will be seriously addressed. As Oprah Winfrey predicted at the Golden Globes awards ceremony, “For too long, women have not been heard or believed if they dare speak the truth to the power of those men. But their time is up. Their time is up.”

While the recent sexual harassment focus is inspiring to many women as a political call to arms, business owners and human resources directors are trying figure out how to hear and handle the resulting complaints with compassion, but also with practicality. That’s where your employment lawyer can help.

Any claim of sexual harassment is what we employment lawyers consider an emergency for your company. When an employee alerts you to a problem, you have to spring into action immediately to make the complainant safe, undertake a thorough and impartial investigation of the claim and finally, resolve the matter with the appropriate discipline. At that point, it is too late to improve upon your written policy or regret a bawdy joke that you recently told.

If you are a business owner or manager in a company with at least 15 names on the payroll, you would be wise to expect to face a sexual harassment complaint sometime in the near future, and to take these six steps now to lessen the sting of such a complaint: Continue reading Sexual Harassment Focus Should Prompt Employer Vigilance

“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