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Employers May Have to Reveal Specifics of Internal Harassment Investigations During Litigation

  • May 1, 2000

In 1998, the United States Supreme Court's decisions in the Faragher and Burlington Industries cases established "affirmative defenses" for employers against sexual harassment claims. Those affirmative defenses have been applied to other types of discrimination claims, as well. Employers now may defend against harassment claims by showing, on the one hand, they exercised reasonable care to prevent and promptly correct unlawful behavior, and on the other, the plaintiff unreasonably failed to take advantage of any of the employer's preventive or corrective measures or otherwise to avoid harm.

Under the harassment mandates, an employer must investigate any complaint to determine what happened and what, if anything, it is required to do to remedy the situation. The U. S. District Court for the Middle District of Florida recently ruled that when an employer conducts an investigation and then relies on that investigation as an affirmative defense to liability, the results of the investigation, as well as the investigator's notes and other related materials, are subject to the "discovery" process and may be requested by the plaintiff in the litigation.

The court recognized the difficult position that may result when producing the investigator's notes would reveal to the plaintiff, who may still be employed, the candid comments of co-workers who were assured their comments would be kept confidential. The court acknowledged the employer's attempt to honor its promise of confidentiality to employees interviewed during the investigation, but said such promises were futile and should not have been made. Production of confidential internal investigations is an "unfortunate by-product of litigation and cannot outweigh the plaintiff's entitlement to legitimate discovery. Volpe v. US Airways, 81 FEP Cases 169 (Fla. 1999)

Editor's Note

It is critical that employers conduct investigations promptly and thoroughly and take remedial action consistent with their policies and past practices. To ensure compliance, the following steps should be taken when a supervisor becomes aware of a violation of the company's policy against harassment and/or discrimination. (The procedures suggested will be in the context of a sexual harassment complaint. However, these procedures can also be followed when investigating any complaint of discrimination.)

  • Obtain information about the alleged harassment from the harassee.
  • Ask for "documenting facts" about the incident, including what was said and done, and what the harassee regards as "inappropriate behavior."
  • Contact a responsible official (e.g. Human Resources Director).
  • Investigations should be confidential to the extent possible. However, as outlined above, it is not always possible to maintain confidentiality. Persons being interviewed should not be "guaranteed" confidentiality. Rather, they should be told every effort will be made to maintain their confidence. However, the objective of the Company is to eliminate any harassing conduct that may be occurring.
  • All purported witnesses or those who may have knowledge should be interviewed. Until allegations are substantiated, identification to third party witnesses of the alleged harasser should be avoided.
  • The investigation process should be documented as it proceeds. Documentation of the investigation process should be segregated from both employees' personnel files; documentation of remedial action taken as a result of the investigation should be noted in the harasser's personnel file.
  •  The harassee need not be informed of the nature of the discipline imposed, except he or she should be informed that the matter has been investigated, appropriate action has been taken, and the employer expects that it will not occur again.
  • The harassee should be reassured that no retaliation will be permitted and should be encouraged to report any future incidents or concerns to the employer immediately.

©2000 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

Reproduction of this material in whole or in part is prohibited without the express prior written consent of Jackson Lewis P.C., a law firm that built its reputation on providing workplace law representation to management. Founded in 1958, the firm has grown to more than 900 attorneys in major cities nationwide serving clients across a wide range of practices and industries including government relations, healthcare and sports law. More information about Jackson Lewis can be found at www.jacksonlewis.com.

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