by Janette S Levey from The Emplawyerologist

Last week at The Emplawyerologist we looked at when and why an employer might need or want to conduct a workplace investigation. This week, we will look at whoshould conduct the investigation. We already know that employers in situations described last week  (click here for review) are among those who should or must begin an investigation. This focus is on which person or entity on behalf of the employer should conduct the investigation?  Can/should it be HR? In-house counsel? Maybe outside counsel or even an outside investigator? Is an outside investigator really necessary? Does it really matter who does the investigation on behalf of the employer? If so, why? We will address these and other questions after the jump.

In order to answer the questions raised before the jump, we need to look at some recent (and  two less recent) U.S. Supreme Court cases. In June, the US Supreme Court decided Vance v Ball State University No. 11-556 (2013), and University of Texas Southwest Medical Center v Nasser No. 12-484, 6/24/13.  In turn those cases build somewhat on Ellerth v. Burlington Industries, Inc., 524 US 742 (1998);  and Faragher v. Boca Raton, 524 US 775 (1998)  (these cases were apparently decided more or less together, as the issues overlapped).

In Faragher and Ellerth, the Court held that, under Title VII of the Civil Rights Act of 1964,  employers are vicariously and strictly liable for their supervisors’ workplace harassment of, and/or discriminatory conduct toward, employees. What is the difference between strict and vicarious liability? Strict liability is liability without regard to fault or bad faith. An employer who is strictly liable for a supervisor’s harassment will be liable even if it took all appropriate steps to stop or prevent the supervisor’s behavior.  The employer’s good faith efforts do not matter. Here, the employer is also vicariously liable, meaning the supervisor’s acts in effect are the employer’s. In contrast, with harassment or other misconduct perpetrated by a co-worker who is not a supervisor, the employer’s good faith does matter, and can mitigating an employer’s liability. An employer is “only” vicariously liable for harassment or discrimination inflicted by employees’ co-workers  if the employer was negligent in either discovering or remedying the offending conduct.  An employer therefore can escape liability for a co-workers harassment and/or discriminatory conduct if it proves: a) that it exercised reasonable care to prevent and promptly correct the behavior; and b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid harm.  Why do we have this difference? The rationale is that employers give supervisors authority to act on behalf of the employer and that employers should bear the risk of any supervisor behavior that abuse that authority.

Farragher and Ellerth did not actually decide the question of who qualifies as a supervisor.  Vance essentially articulated the standard for determining who is a supervisor for purposes of deciding when an employer will be strictly liable for harassing and/or discriminatory behavior. I will not digress further into specifics about Vance  here, though if you are interested you can click here to read the opinion.  Finally, in University of Texas SW Medical Center v Nassar, the US Supreme Court ruled that a plaintiff alleging unlawful retaliation for protected opposition to suspected discrimination under Title VII of the 1964 Civil Rights Act must prove that “but for” the retaliation s/he would not have suffered the adverse employment action. The alleged retaliation cannot simply one motivating factor among many for the adverse employment action.

What might these cases tell us about who should conduct workplace investigations on behalf of employers? Remember,  the first requirement of the Faragher/Ellerthdefense is  proving exercise of reasonable care in preventing and/or promptly correcting the behavior in question.   The investigation becomes the most important tool available to help you, the employer, figure out your ultimate response to the allegations. How else could you determine what most likely happened, let alone the appropriate response? Similarly, where an employees alleges that s/he was terminated in retaliation for complaining about harassment or discrimination, how does an employer successfully argue that other factors led to the termination without investigating?

So, an investigation may be necessary, but what does it matter who investigates on the employer’s behalf?  What happens to your Faragher/Ellerth defense If you have just anyone conducting the investigation,and  that person does a poor job?  If you use someone who is not knowledgeable of the relevant laws, you risk losing your defense. What if the person is biased? How can that person conduct a fair, impartial, thorough and appropriate investigation that protects you, the employer, from liability? The US District Court for the Northern District of Ohio addressed this and other concerns in EEOC v. Spitzer Case Nos. 1:06CV2337 and 1:08CV1326, 1:08CV1542 and  1:09CV255.  In that case, the employer’s attorney also conducted the investigation. The case ended in a mistrial after the court learned that the employer did not turn over the attorney’s notes from the investigation of discrimination allegations during discovery. The judge, for that and many other reasons, sanctioned the employer to the tune of $300,000. The court noted that since the employer “relied heavily on the Faragher-Ellerth defense in this matter”, that the “heart of the defense would necessarily center around how

[the employer] responded to [and] investigated complaints of harassment and discrimination”. The judge’s analysis alluded to  the conflict of interest inherent when an employer asserts this defense and uses its in-house or usual outside counsel, who will likely be called as a fact witness at trial. So, how do you ensure that you have the right person conducting the workplace investigation? Here are some points you should first answer:

  • Whoever conducts the investigation will likely get called as a witness in a lawsuit.
  • Since your attorney cannot also be a witness, s/he should not conduct the investigation if you want him/her as the attorney of record in a lawsuit.
  • The person conducting the investigation should be knowledgeable of the relevant federal and state employment laws.
  • The person should be able to remain impartial while conducting the investigation. When in doubt, and if the allegations are particularly serious, consider engaging an outside investigator.

Many may find engaging an outside investigator to be the safest option. Is that always necessary? Employers who have competent, knowledgeable in-house HR practitioners and/or in-house counsel that they are comfortable can remain impartial and who they do not mind being witnesses at trial may opt to save themselves the extra expense. Please note however, that some states may, in some circumstances, require you to use a licensed, professional investigator (h/t Gregory Reese ). Also, note that not every allegation will warrant a full-blown investigation.  Some situations may be resolved by speaking with the people involved and facilitating an understanding between the parties.

So what should you do? If you do not have competent in-house counsel, then seek advice from competent outside employment counsel, and keep in mind that each situation might warrant a different answer to that question.

Well, that wraps up this week’s segment. Join me next week and we will discuss the “how” of workplace investigations, aka the “do’s and don’ts”. See you then!

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