Alaska Employment Law

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I.   Employers Must Promptly and Effectively Investigate Employee Complaints of Discrimination, Harassment, and/or Retaliation

A. The Employer’s Dilemma 

Whenever a complaint of discrimination, hostile work environment, and/or retaliation is brought to employer’s attention, the employer faces a two-edged sword.  If the complaint is not promptly and effectively investigated, the complainant may sue the company based on the employer’s failure to properly investigate the complaint and to take prompt, appropriate, and effective remedial action.  See, e.g., Barrett v. Omaha Nat’l Bank, 726 F.2d 424, 427 (8th Cir. 1984); Andrews v. City of Phila., 895 F.2d 1469, 1486 (3d Cir. 1990); Bonenberqer v. Plymouth Township, 132 F.3d 20, n.7 (3d Cir. 1997); Yamaguchi v. U.S. Dep’t. of the Air Force, 109 F.3d 1475, 1483 (9th Cir. 1997); see also 29 C.F.R. § 1604.11 (d).  However, if the investigation is handled improperly, the accused may also bring claims against the employer under various legal theories, such as slander, false light invasion of privacy, or wrongful termination,  or may even assert a claim of discrimination.  See, e.g., Duffy v. Leading Edge Prods., 44 F.3d 308 (5th Cir.1995)(dismissing harasser’s complaint for defamation because the court found the investigation to be adequate and conducted without malice); Malone v. Eaton Corp., 187 F.3d 960, 962-63 (8th Cir. 1999)(finding, inter alia, no malice in an employer’s statements to other employees that the plaintiff had been dismissed due to “a form of sexual harassment” after an investigation revealed the plaintiff was having an affair with a subordinate); Olive v. City of Scottsdale, 969 F. Supp. 564, 575-576 (D. Ariz. 1996)(granting employer’s summary judgment motion on harasser’s claim of defamation when plaintiff failed to provide evidence of malice and an internal memorandum of the investigation’s findings was found not be an excessive publication).

By contrast, an employer who conducts a prompt and thorough investigation and, if appropriate, takes effective remedial action may — in certain instances — avoid liability for acts of discrimination, harassment, and/or retaliation committed by its employees.  See, e.g., Barrett, supra; Weston v. Pennsylvania, 251 F.3d 420, 427 (3d Cir. 2001); Kunin v. Sears Roebuck & Co., 175 F.3d 289, 299 (3d Cir. 1999); Intlekofer v. Turnage, 973 F.2d 773, 778 (9th Cir. 1992); Holly D. v. California Inst. Of Tech., 339 F.3d 1158, 1176-1178 (9th Cir. 2002).  Consequently, it is extremely important for employers to protect themselves by: 1) having an effective written policy that outlines the complaint procedure for claims of discrimination, harassment, and retaliation; (2) disseminating this policy to all employees; (3) educating employees as to the types of workplace behavior that are prohibited under the policy; (4) conducting prompt and effective investigations of any claims of discrimination, harassment, and/or retaliation; and (5) taking remedial action if the investigator concludes that the employee’s claims of discrimination, harassment, and/or retaliation are well-founded.

B. Limiting an Employer’s Liability for Claims of Discrimination, Harassment, and/or Retaliation

1. Use of the Affirmative Defense For Hostile Work Environment Claims in the Sexual Harassment Context

In 1998, the United Supreme Court decided two cases that gave employers a defense against claims of hostile environment sexual harassment.  (Fn. 1)  In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), the Supreme Court concluded that an employer could be held vicariously liable for hostile environment sexual harassment by a supervisor with immediate (or successively higher authority) over the employee.  However, the Court in Faragher stated that an employer could still prevail in such a case if the employer was successful in asserting an affirmative defense so long as the sexual harassment did not result in a significant adverse change in the employee’s employment status.  (Fn. 2)  According to the Supreme Court in Faragher, an employer may establish the affirmative defense and avoid liability for a hostile environment sexual harassment claim by showing that: (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, 524 U.S. at 806. It is important to note that an employer cannot avail itself of the affirmative defense where there has been hostile environment sexual harassment by a supervisory employee if the supervisor’s harassment culminates in a “a tangible employment action” – i.e., a significant change in employment status, such as hiring, firing, demotion, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.  See Faragher, 524 U.S. at 808; Burlinqton Indus., 524 U.S. at 765.  Similarly, employers cannot use the affirmative defense where there has been quid pro quo sexual harassment. In quid pro quo sexual harassment, an employee’s supervisor conditions tangible job benefits on compliance with the supervisor’s sexual advances. See Burlinqton Indus. Inc., 524 U.S. at 753-54. 

In order to successfully assert the affirmative defense established by Faragher, the employer must establish the following two elements: (1) that the employer has in place a sexual harassment policy, and (2) that the employee unreasonably failed to avail herself/himself of the employer’s preventive or remedial measures.  Faragher, 524 U.S. at 806-07.  In proving the first element of this defense, the employer will need to show that it had an anti-harassment policy with a complaint procedure that was widely disseminated in the workplace.  To establish the second prong of the affirmative defense, the employer must show that the plaintiff’s failure to use the complaint procedure established by the employer was unreasonable.  See Faragher, 524 U.S. at 807-08.  Consequently, a well-drafted sexual harassment policy is critical to assisting the employer in proving the affirmative defense.  A well-drafted policy will describe the types of conduct that are viewed as sexual harassment, set forth a complaint procedure, and identify at least two — and preferably three — individuals that employees should come to when making a sexual harassment complaint.  Such a policy should also be widely disseminated to employees. It is highly recommended that in-service programs on sexual harassment be conducted periodically, so that all employees understand what conduct is unlawful and are informed about the complaint procedure and investigative process.

2.  Use of the Affirmative Defense in Other Types of Harassment Claims

Although the Faragher and Ellerth cases focused on the affirmative defense in hostile environment sexual harassment cases, the same analysis has been applied to other types of cases brought under Title VII, such as race or gender hostile environment claims.  Spriggs v. Diamond Auto Glass et al., 242 F.3d 179, 186 at n. 9 (4th Cir. 2001)(observing that the developing consensus among the courts is that the holdings in Ellerth and Faragher apply with equal force to other types of harassment claims under Title VII).  At least one court has also found that an employer may raise an affirmative defense for claims of a hostile work environment on the basis of an employee’s disability.  See Vendetta v. Bell Atlantic Corp, 1998 U.S. Dist. LEXIS 14014 (E.D. Pa. September 8, 1998).

3.  Other Grounds for Limiting Employer Liability

Where there is discrimination, harassment, or retaliation by a co-worker, the employer will be liable only if it knew or should have known of the unlawful conduct.  See, e.g., Hafford v.Seidner, 183 F.3d 506, 513 (6th Cir. 1999); Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991); Bibby v. The Philadelphia Coca Cola Bottling Co., 85 F. Supp 2d 509, 514 (E.D. Pa. 2000); Veco, Inc. v. Rosebrock, 970 P.2d 906, 914 (Alaska 1999).  If there is a complaint process embodied in a written policy given to all employees, an employer may be able to demonstrate that it had no actual or constructive knowledge of the offensive conduct if the plaintiff unreasonably failed to utilize the complaint process and the conduct was not egregious.

It is important to note that an employer’s legal obligation under the discrimination statutes is to take prompt, effective remedial action where discriminatory conduct has occurred.  See, e.g., Hafford, supra; Bibby, supra; Yamaguchi, supra.  Accordingly, the courts are unwilling to impose liability on an employer that demonstrates that it took such action upon discovering that discrimination, harassment, or retaliation has occurred.  See, e.g., Hafford, supra; Bibby, supra.  By having a complaint process that culminates in a thorough investigation, the employer can assess whether unlawful conduct has occurred and, if so, take appropriate remedial action that eliminates such conduct. See Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1528-29 (9th Cir. 1995)(employers have an obligation to remedy harassment by imposing discipline upon the harasser).  The type of appropriate remedial action will depend upon the severity of the conduct, whether the conduct was an isolated incident, and whether the accused had any previous warnings about similar conduct. Blankenship v. Parke Care Center, 123 F.3d 868, 872-73 (6th Cir. 1997).  Obviously, if the discriminatory or retaliatory conduct does not immediately cease after disciplinary action has been taken, then the remedial action was ineffective.

Since retaliation claims typically have a higher success rate than other types of discrimination claims, it is important for any written policy to include wording that expressly forbids retaliation for making a complaint of discrimination or harassment.  During the course of any investigation, the investigator must also counsel the complainant and the accused that the company’s policy forbids retaliation.  The complainant also should be instructed to immediately report any incidents of retaliation.  In addition, the investigator should check back with the complainant at various intervals (i.e., four to eight weeks and again at six months after the investigation was concluded) and inquire whether there have been any further problems of incidents of retaliation.  This follow-up with the complainant and a summary of the complainant’s response should be documented in the investigator’s file.  Obviously, if further incidents have occurred or there are claims of retaliation, then a new investigation of such incidents must ensue.

II.         Elements of an Effective Investigation Involving Claims of Discrimination, Harassment, and/or Retaliation

A.  Pre-investigation Planning

Although the need for an investigation arises suddenly, employers should plan the investigation of a complaint with care in order to demonstrate that proper steps were taken to identify the problem and resolve the complaint.  Complainants should be treated in a fair manner and asked to provide a written summary of their complaint either the day they report the conduct or the following day.  If the complainant does not provide a written complaint within that time frame, then a human resources professional should work with the complainant to develop the written complaint that is signed by the complainant.  Employees often describe their problem in vague generalities: “my boss is picking on me,” “I’m not being treated fairly,” “other employees are treated differently than me,” or “I feel I’m being harassed.”  It is very important to have the complainant describe the specific incidents that lead to that employee’s decision to complain in order to conduct an effective investigation.

Shortly after the written complaint is generated, an appropriate investigator should be selected.  Employers often are held liable in discrimination lawsuits because the initial recipient of the complaint — typically a supervisor or a lower-level human resources representative — either ignored the complaint or told the complainant to “live with it.”  See Faragher, 524 U.S. at 783 (the plaintiff and others informally complained to a supervisor named Gordon about the hostile work environment; Gordon did not report these complaints to his supervisor or to any other higher authority because he felt it was not his place to do so); Lamb v. Household Credit Serv., 956 F. Supp. 1511, 1517 (N.D. Cal. 1997)(holding “a co-worker’s inaction does not spark employer liability unless that co-worker has an official or strong de facto duty to act as a conduit to management for complaints about work conditions”).  Consequently, supervisors and other employees who receive employee complaints — even so-called informal complaints — must be trained to forward these complaints to a person with the background and experience to assess the complaint and implement further action. Such an individual is usually a higher-level human resources representative or inside counsel (Fn. 3) or outside counsel. 

The type of investigator used in a complaint investigation will depend upon the nature of the complaint, the job position of the accused, and the training in complaint investigation that the investigator has had. My personal recommendation for larger companies is that they have a pool of people who are properly trained to investigate these complaints. For example, if a race complaint is made, a qualified investigator of the same race as the complainant is preferable.  Complaints of sexual harassment are usually made by women (Fn. 4) and most women feel more comfortable in describing their situation to another female. Consequently, companies should always have a female employee trained to investigate such complaints if the company is conducting the investigation itself. In order to avoid future issues of attorney/client privilege from arising, it is recommended that a trained human resources professional within the company be used wherever possible.  (Fn. 5)  See Peterson v. Wallace Computer Services, Inc., 984 F. Supp. 821, 824 (D. Vt. 1997); Walker v. County of Contra Costa, 227 F.R.D. at 535-536.  The individual who is conducting the investigation should have had instruction specifically in conducting such investigations. Obviously, the investigator should be an impartial person with good people skills.

Avoid having the complainant’s supervisor conduct the investigation — such individuals typically do not have the requisite training and their role in the investigation can later give rise to retaliation claims.  In some instances, it may be necessary to hire an outside investigator, such as an attorney, to handle the investigation.  For example, if a very high-level official of the company (such as a Vice President, CFO or CEO) is accused of sexual harassment (Fn. 6),  the human resources department or an upper-level management interviewer may be perceived by the complainant, and ultimately, by a jury, as having an incentive to sweep the matter “under the rug” — especially if the investigator is unable to conclude that the act of harassment occurred. There are human resource consultants that will conduct these investigations if a company does not have a trained investigator or where there are other factors that merit an outside investigator.  If outside counsel is used for an investigation, be aware that a court might later conclude that the defendant has waived the attorney/client privilege and/or work product doctrine should the employer attempt to avoid liability by claiming that it conducted an internal investigation of the complaint and found it to be without merit.  See, e.g., Worthinqton v. Endee, 177 F.R.D. 113 (N.D.N.Y, 1998); Johnson , 961 F. Supp. at 210-211; Hardina v. Dana Transport, 914 F. Supp. 1084, 1091 (D.N.J. 1996); Walker, 227 F.R.D. at 535.  One way to avoid this result is to use a qualified attorney other than in-house counsel or the company’s regular outside counsel to conduct the investigation.

After the investigator has been selected, the investigator should promptly meet with the complainant to discuss the complaint, to obtain more details concerning the accusations, and to develop a list of relevant witnesses and information sources.  Since an employer must ultimately demonstrate that it conducted a “prompt” investigation, the selection of the investigator and development of a witness list should occur within a day or two after the initial complaint has been made.  See, e.g., Swenson v. Potter, 271 F.3d 1184, 1193 (9th Cir. 2001)(deeming prompt an investigation that commenced on the same day the plaintiff complained about a grabbing incident to human resources, which was three days after a supervisor learned of that same grabbing incident and warned the harasser that his conduct was inappropriate); Llewelyn v. Celanese Corp., 693 F.Supp. 369 (W.D.N.C.1988)(inadequate investigation where employer waited several weeks to interview the accused); Dornhecker v. Malibu Grand Prix Corp., 828 F.2d 307 (5th Cir. 1987)(declining to hold an employer liable where the remedial action occurred within 12 hours of the complaint).

The investigator should also establish a timeline for conducting witness and information source interviews and prepare a tentative list of questions and issues to be covered in each of the interviews.  This effort should be documented.   If a non-lawyer is conducting the investigation, it is advisable for the investigator to consult with in-house or outside counsel to ensure that the witness interviews address the relevant factual and legal issues posed by the complaint.  In most instances, the investigator should prepare a script for the interviews with the questions to be asked and then have counsel review that script before the witness interviews occur.

B.  Take the Complaint and Investigation Seriously

Investigations should be given top attention and high priority.  If the complainant is supervised by the accused, consider giving the complainant a paid leave-of-absence while the investigation is being conducted.  In some instances, it may also be appropriate to give the accused a paid leave-of-absence during the investigation.

Be thorough in the investigation.  If the complainant mentions ten witnesses that will corroborate his/her story, be sure that all ten witnesses are interviewed.  Many employers wind up in court having to explain why the investigator only spoke to the five witnesses that had little or no relevant information but did not speak to the other five witnesses who have testified in court that they saw the discriminatory conduct or experienced a similar situation themselves with the accused.  Cf. Fuller, 47 F.3d at 1529 (criticizing employer for failing to interview a witness who was favorable to the plaintiff).  If there are apparent contradictions in witness statements, follow-up with additional questions. 

Keep the investigation confidential.  All witnesses — including the complainant and the accused — should be advised that the company is conducting an investigation and that they are not to discuss this matter with anybody to ensure that their confidentiality and that of others is maintained.  The complainant and the accused should each be advised that retaliation is unlawful and that the Company has a no retaliation policy.  The investigator should also counsel the complainant to alert the investigator or human resources if any retaliation occurs.  If the complainant is a direct report of the accused, consider how to handle the next performance review.  If the upcoming performance review is less favorable than preceding reviews, rest assured that the complainant will attribute that less favorable review to retaliation by the accused. Consider the advisability of obtaining witness statements rather than merely maintaining interview notes. If witness statements will be used, the investigator should interview each witness privately and then prepare statements for each witness that accurately summarize the contents of the interviews.  The investigator should then have counsel review the witness statements before they are put into final form for signatures.  After that review and any necessary revisions to the statements, each witness should be asked to sign their statement.  The investigator should also keep all notes of these witness interviews in a separate, confidential file. 

It is important for the investigator to communicate to third-party witnesses that the company is investigating a complaint in an effort to determine what has occurred.  Wherever possible, identities of the complainant and other witnesses should be kept confidential.  Open-ended questions are preferable with third-party witnesses:  “Did you ever hear John Smith make a remark that you felt was sexual in nature or was inappropriate? Did you ever see John Smith touch an employee in a manner that you felt was inappropriate? Did John Smith ever behave in any manner that made you uncomfortable?”  Since there can be an issue regarding the motive of the complainant or the accused, it may be appropriate in some instances to inquire about the working relationship between the accused and the complainant and, in certain instances, the social relationship between the complainant and the accused.

Be sure the investigation is conducted in a manner that will appear fair and impartial to a jury.  Both the complainant and the accused should be asked to provide the names of corroborating or exonerating witnesses and all of these witnesses should be interviewed.  The accused should be given a chance to respond to the accusations that have been made.  Disciplinary action, if warranted, should be comparable to the disciplinary actions others have received in comparable circumstances.  If the investigation is taking longer than two weeks to complete, it is advisable to inform the complainant and the accused that witnesses are in the process of being interviewed and then to give an approximation of when the investigation will be concluded.  See Ulrich v. K-Mart Corp., 858 F. Supp. 1087, 1092 (D. Kan. 1994)(employer that completed its investigation and disciplined harasser within one month after the fondling incident occurred acted promptly to rectify the situation).  Otherwise, the complainant is left with the impression that the company is ignoring his/her complaint or handling the matter in a dilatory fashion.  Investigations should be concluded in a matter of days, not months, in order to satisfy the “prompt investigation” requirement.  See Davis v. Tri-Star Mack Distributors, 981 F.2d 340 (8th Cir. 1992)(two months to complete an investigation was too long); Swenson, 271 F.3d at 1193; compare Mikels v. City of Durham, 183 F.3d 323 (4th Cir. 1999)(an investigation that was begun the same day as the complaint and was concluded within less than a week constitutes prompt and adequate remedial measures so as to relieve the employer of liability); Nash v. Electrospace Sys., Inc., 9 F.3d 401, 404 (5th Cir. 1993)(deeming company’s investigation completed within a week after plaintiff’s complaint to be a prompt investigation) with Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983 (8th Cir. 1999)(a delay of two months in taking effective remedial action did not constitute prompt remedial action).

C. Concluding the Investigation

After all the witness interviews are completed, it may be necessary to interview the complainant and/or the accused again to elicit further details or an explanation.  The interviewer should keep detailed notes of these second interviews.  At that point, the investigator should evaluate the evidence and determine whether there is sufficient evidence to conclude that the conduct under investigation occurred.  The investigator should carefully document his/her conclusions through a written report that details the investigative process, covers who was interviewed, reaches a conclusion through logical and well-documented facts obtained during the investigation, and describes the disciplinary or remedial action taken in those situations where there is a basis for concluding that the conduct alleged has occurred. The results of the investigation should be verbally communicated to the accused and the complainant in separate meetings.  Once again, both of these parties should be instructed to keep this information confidential.  The investigation report, any witness statements, and the interviewer’s notes should be kept in a confidential, secure file.  When there is a basis for concluding that the conduct alleged by the complainant did occur, the employer must impose disciplinary action upon the accused and a record of such action should be placed in the accused’s personnel file.  Typically, any documented disciplinary action (other than a termination) should advise the accused that any further harassment, discrimination, or retaliation will result in the discharge of the accused.

Assuming there is some corroborating evidence for the complaint, determine what type of remedial action is appropriate.  The kind of appropriate remedial action will depend upon:  the severity of the conduct that occurred, the frequency of the alleged conduct, whether the accused was a first-time offender, and whether other employees have had similar experiences with the accused.  In a Company with a zero tolerance policy (Fn. 7), the answer is termination.  Otherwise, there is a range of disciplinary actions that should be considered, depending on the situation.  Examples include: counseling for the accused, a transfer of the accused to separate the parties along with a final warning, a written warning, a suspension, or a demotion.  If disciplinary action is appropriate, the accused should be informed that there was corroboration for the complaint, without identifying the sources of such corroboration.  The accused should also be advised once again that retaliation is unlawful and will not be tolerated by the Company.  If the accused subsequently behaves in an inappropriate manner, this employee should be terminated.  Failure to terminate a repeat offender can subject the company claims of negligent supervision and retention claims that have no limits on their damages.  Moreover, a company’s failure to terminate a repeat offender suggests to others — including a jury — that the company does not take such conduct seriously. 

If substantiation for the complaint is found, then the complainant should be promptly advised that the company has concluded that inappropriate conduct did occur and that disciplinary action has been taken.  The complainant should be counseled that this information is to be kept confidential.  Often a complainant is seeking the dismissal of the accused.  If this issue is raised by the complainant and a lesser form of discipline has been deemed appropriate, then the employer should consider revealing some additional information to explain its decision — i.e., that this was a first offense and that the accused has been warned that any subsequent offenses will result in harsher discipline, up to and including termination.  It is important to communicate again to the complainant that retaliation is unlawful and will not be tolerated by the Company.  The complainant also should be advised to immediately report any conduct that the complainant considers retaliatory.  The investigator should document by a memo to the file the fact that the complainant was advised to report any further incidents of harassment and discrimination or any retaliatory conduct to the human resources department.

In some situations, it may be impossible to reach a conclusion regarding whether the conduct that is the subject of the complaint actually occurred.  Typically, this happens either when the complainant and the accused were the only eyewitnesses to the conduct or when the complainant’s witnesses do not support the complainant’s account of the events.  In such instances, the investigator should still inform both parties of the outcome of the investigation, counsel both of them that retaliation is unlawful, and advise the complainant to bring any retaliatory conduct immediately to the attention of the company.  See Swenson, 271 F.3d at 1196 (if there is insufficient evidence to sustain a charge of harassment, employer may decline to discipline the accused but can resort to other methods of remedying the situation, such as separating the two employees).  Once again, the investigator should prepare a written report with the conclusions of the investigation and should preserve any witness statements and all interview notes.  These materials should be kept in a confidential, secure file. 

I also strongly recommend that the investigator check in with the complainant approximately four to eight weeks after the conclusion of the investigation and, again, at six months after the investigation was concluded in order to determine that no retaliation or subsequent discrimination or harassment has occurred.  The investigator should prepare a file memo documenting this inquiry as part of the investigation file.  Since employees are human, consider what steps can be taken to minimize the opportunity for retaliatory conduct.  Be sure that the results of the investigation and any related documentation are kept confidential (other than disclosing such results to the parties and those at the company with a demonstrated need to know) in order to avoid claims by the accused alleging discrimination, false light privacy, or defamation.  Olive, 969 F. Supp. at 575-576.

Frequently, an employer attempts to defuse a situation by transferring the complainant or the accuser to a different job or a different worksite so that continued contact between the accused and the complainant will be minimal.  However, typically an employer should not transfer the complainant unless such a transfer is requested by the complainant and the complainant is placed in a position with the same terms and conditions of employment.  Ellison, 924 F.2d at 882 (holding a victim of sexual harassment should not be punished and put in a less desirable work location as a remedy); Intlekofer, 973 F.2d at 780 (finding an employer’s attempt to remedy the situation by counseling the victim on ways to help stop the harassment and forcing the victim to work different shift schedules were not reasonable disciplinary measures).  A number of retaliation claims occur because a complainant is transferred against his/her will to another position after making a complaint of harassment, discrimination, or retaliation.  Consequently, if an employer is considering a transfer for the complainant, the employer should first consult with counsel to make sure the “solution” does not create more legal issues than the “problem.”

I always recommend seeking the advice of legal counsel experienced in employment law matters when confronted with a complaint of harassment, discrimination, or retaliation even if the investigation is being handled by human resources.  In most cases, an employer can escape liability if the investigation is handled properly and appropriate, effective remedial action is taken.  Lawsuits are very expensive; many can be avoided by prompt, thorough, impartial investigations of complaints and the imposition of effective and appropriate remedial action when a complaint has been substantiated.  Typically, legal counsel well-versed in employment law is in the best position to assist human resources in determining the scope of the investigation and appropriate disciplinary action.

The author gratefully acknowledges the assistance of her law clerk, Nicole Corr, in updating the case law contained in this article.

Footnotes

1.    The law recognizes two forms of sexual harassment:  (1) quid pro quo sexual harassment, and (2) hostile environment sexual harassment.

2.    In Pennsylvania State Police v. Suders, 124 S. Ct. 2342 (2004), the Supreme Court held that employers could assert the affirmative defense outlined in Faragher and Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 765 (1998), in cases where the plaintiff has alleged a constructive discharge.

3.    However, if in-house counsel is used to conduct an investigation of a complaint of harassment, discrimination, or retaliation, employers need to be aware that the attorney/client privilege may be waived if the employer asserts as a defense that it investigated the matter and acted reasonably based upon the results of that investigation.  See Johnson v. Rauland-Borg Corp., 961 F. Supp. 208, 210-11 (N.D. Ill. 1997); Walker v. County of Contra Costa, 227 F.R.D. 529, 532 (N.D. Cal. 2005); McIntyre v. Main St. & Main Inc., No. C-99-5328, 2000 U.S. Dist. LEXIS 19617, at *9 (N.D. Cal. 2000).

4.     For this reason, the sexual harassment policy should identify at two or more people who handle the intake of sexual harassment complaints — and at least one of these individuals should be a female employee.

5.     There may also be issues under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et. seq., and analogous state statutes that require notice and disclosure of information obtained during an investigation by an outside investigator.

6.     Similarly, if the relative of a high-level employee is involved, usually having an in-house investigator will later result in charges of a biased investigation.

7.     One reason why this author does not recommend a zero tolerance policy is that some prohibited conduct merits termination while other conduct does not.  For example, an otherwise competent employee who makes one off-color remark that a co-worker found offensive is in a far different category than a supervisor or co-worker who touches an employee inappropriately.  More appropriate discipline for the co-worker who made the off-color remark would be a documented reprimand coupled with some training on sexual harassment and appropriate conduct in the workplace.