Tag Archives: Sexual Harassment

“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

Suspicious Behaviors Common in Workplace Harassers

After 30 years of advising employers, conducting sexual harassment investigations, and defending companies sued for discrimination and harassment, I have developed a list of suspicious behaviors that I see repeatedly among sexual harassers in the workplace.

I don’t think of myself as precogniscent of whether a person is actually a harasser or not prior to investigating a complaint, but I have repeatedly seen what I would call these “red flag” behaviors that certainly make it more likely that a supervisor may be accused of harassment at some point.

From the stories in the press about the sexual misconduct of Harvey Weinstein, Roger Ailes, and others, it appears from witness statements that many of these warning signs were present and ignored by their companies before the complaints about their misbehavior finally came to light.

Red flag behaviors that employers should take very serious notice of even before a harassment complaint is filed include:

  • Any inappropriate remark at work by a supervisor that has racist, sexist or other prejudiced overtones;
  • Criticism directed towards employees of one gender, one race, those of different religious beliefs, etc. and not towards ones of the supervisor’s own gender, race or religion;
  • Comments by a supervisor that are often about an employee’s or applicant’s appearance or personal attributes rather than work-related competence;
  • A supervisor who verbally hits back aggressively when challenged by someone “beneath” the supervisor;
  • Unprofessional online behavior, such as forwarding questionable emails or viewing porn at work;
  • Attempts to cover tracks, for example, by using a texting service like Snapchat that quickly destroys messages for what are allegedly work-related conversations;
  • Flirting by a supervisor, even if it seems harmless, that makes the object of the flirting uncomfortable;
  • A supervisor who complains repeatedly about his/her marriage and acts like the victim in that relationship;
  • Supervisor dating a subordinate;
  • Supervisor who can’t be trusted to behave correctly around alcohol, such as during the company Christmas party or softball game;
  • Gifts given by a supervisor to a particular subordinate and not to others; and
  • The settlement of a prior sexual harassment complaint for an eye-popping $32,000,000 before the employer has to pay to settle five other claims. Let’s just call that one the O’Reilly Factor.

Continue reading Suspicious Behaviors Common in Workplace Harassers

Does the First Amendment Apply at Your Company?

Does the First Amendment protect an employee in Texas, allowing him to say whatever he wants on the job–to take a knee in protest, to write a manifesto about how women don’t belong in the tech sector, or to tell the CEO of his company to “kiss my a—, Bob”?

Not a chance. The First Amendment to the Constitution of the United States of America says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

By prohibiting Congress from passing laws that abridge freedom of speech, the Constitution did not limit a private sector employer’s right to fire an employee (on the other hand, government employees have some First Amendment protections).

In addition to no constitutional bar, businesses in Texas are protected because Texas follows the “at will” employment rule, meaning a private employer can fire an employee for a good reason, a bad reason or no reason at all, including firing an employee because the employer didn’t like something the employee said, either out loud or symbolically.

So, if Jerry Jones had decided to fire any Dallas Cowboy who kneeled during the National Anthem before the Monday Night Football game, the First Amendment would not have protected the player. Neither would Texas law. Interestingly, Jones came up with an inoffensive compromise by encouraging his players to kneel before the anthem to protest racial injustice and even kneeling with them. By the time the anthem played, the whole team was standing in unity, with arms locked together.

Google also was unhampered by the First Amendment when the company fired an employee in August for writing a manifesto blasting Google culture of diversity. Particularly, the employee argued that women occupied fewer leadership positions in the tech industry because of unsuitable personalities. For example, he said that women are more anxious, and therefore unable to handle the stress of high-powered leadership positions. He concluded that efforts by Google to place more women in technology and leadership were “unfair, divisive, and bad for business.”

However, the First Amendment’s application is not the end of the inquiry. There are other laws besides the First Amendment that an employer has to consider (in consultation with the company’s employment lawyer) before firing an employee for expressing herself.

  • Is the employee’s speech related to the employee’s religion? Employers even in the private sector cannot discriminate on the basis of religion and also must accommodate a person’s religion. The discrimination laws always trump the “at will” rule.
  • Is the employer allowing one group to express themselves but not another protected class? For example, if only African-American players for the Dallas Cowboys had kneeled during playing of the Star-Spangled Banner, but some white players failed to put their hands over their hearts, Jerry Jones may have faced a racial discrimination lawsuit if he had fired only the kneeling players for disrespect.
  • Are you punishing any employees for speaking a language other than English at work? For safety or productivity purposes, there may be a limited way in which you can do this during actual work time, but it is a very tricky area of the law and you don’t want to attempt this without serious consultation with your employment attorney.
  • Is the employee complaining about a safety violation, a crime or other public policy matter? In that case, there may be whistleblower statutes that protect the employee.
  • Is the employee expressing problems with wages, hours, shifts, policies or other terms and conditions of employment with other employees? Then the National Labor Relations Act may prohibit you from firing the employee because she is participating in “concerted activity” under this labor statute, even in a non-unionized workplace. This is what happened with the coal miner who sent a paltry bonus check back to the CEO with the words “kiss my a–, Bob” on them. A court made the coal company return that employee to work after he was fired, because his protest was protected concerted activity involving his pay.
  • Texas employers are prohibited from taking adverse action against an employee based on who the employee voted for or for refusing to reveal how he or she voted. Employers must allow employees time off to vote and to take leave to attend a local or state political convention and cannot threaten or retaliate against the employee for such attendance.

Interestingly, there are times when an employer almost has no choice but to fire an employee for expressing himself. For example, if an employee is sexually harassing another employee with lewd comments, suggestive emails and/or pornographic pictures, the hostile environment the harasser is causing with his words and actions may require the employer to fire him after completing an investigation, both to protect the company and the victim.

Sexual Harassment Prevention Training Essential

Training photo

Every employer with 15 or more employees needs to require employees to attend sexual harassment prevention training. That is the takeaway that businesses need to understand from a new task force report on harassment in the workplace that the Equal Employment Opportunity Commission published in June 2016.

The EEOC’s report states that businesses have “to reboot workplace harassment prevention efforts.” The EEOC is especially concerned that most sexual harassment  prevention training focuses only on defining harassment and telling employees what they are prohibited legally from doing.

Instead, the EEOC is encouraging (read: requiring) businesses to also include workplace civility training and bystander intervention training. If a disgruntled employee makes an illegal harassment claim against your business in the future, the EEOC, as the investigating agency, is going to immediately require your business to provide evidence that you thoroughly trained your employees on these new topics. If the harassment complaint goes to trial, this training will also be your best defense.

Bystander Intervention Training is defined by the EEOC report as training that helps employees identify unwelcome and offensive behavior and creates collective responsibility to step in and take action when they see other employees exhibit problematic behaviors. The training is geared towards empowering employees to intervene when they see unacceptable conduct and gives them resources to do so.

Workplace civility training focuses on teaching employees to abide by reasonable expectations of respect and cooperation in the workplace. The emphasis is supposed to be positive—what the employees should do—rather than those things they are prohibited from doing. The training needs to include navigation of interpersonal relationships, an understanding of conflict resolution and teaching supervisors how to be civility coaches. In other words, it is now the company’s responsibility to teach workers how to be responsible, respectful professionals. On the job training and supervisor modeling is fine, but you need to add formal in-house training also.

Interestingly, at the same time that the EEOC is “encouraging” employers to promote more civility in the workplace and to prevent bullying and harassment, the National Labor Relations Board is issuing decisions that punish non-unionized businesses for written policies requiring employees to be respectful to coworkers.

The NRLB has repeatedly found that a company is infringing on an employee’s labor rights when the employer enforces handbook policies like this one from T-Mobile’s employee manual: “Employees are expected to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with clients, co-workers and management.” The NRLB thinks that kind of policy has a chilling effect on employees who have a right to discuss with coworkers all of the terms and conditions of their employment. I’ve alerted you about the NRLB’s crusade against policy manuals before.

So you as an employer are left with trying to decide whether to be investigated and sued by the NLRB or the EEOC. Continue reading Sexual Harassment Prevention Training Essential

Employer’s Prompt Actions Defeat Harassment Claim

As an employer with at least 15 names on your payroll, you should take any claim of sexual, racial or other illegal harassment seriously and work quickly to determine the validity of the claim, to put a stop to the offending behavior, and to deal with the offender.

The necessity of quick action was confirmed in Williams-Boldware v. Denton County. In that case, the Fifth Circuit Court of Appeals decided that an employer’s “prompt remedial action” stopped the offending behavior, so that the claims of racial harassment and hostile work environment were defeated.

The key word here is “prompt”. In this case, within 24 hours of a racial harassment complaint being made, the supervisor had reported the claim to Human Resources, which began investigating. The co-worker who had made racially inappropriate comments immediately issued a written apology and the employer met with the complainant to discuss the claim, letting her know they took the matter very seriously, and they even asked for her input in deciding the best course of action to take. This included reprimanding the co-worker, requiring him to attend diversity training, and transferring the complainant to another department so there would be no more contact between them.

The best way to prevent racial, sexual, or other illegal harassment from ever becoming an issue is to make sure that your employees are aware of company policies regarding harassment in the workplace. You should have a written policy in place that clearly states what behavior is expected of your employees, what is not tolerated, and what the consequences will be for violating company policy. In addition, you should take serious and immediate steps to investigate and stop the harassment when a complaint is made.