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The recent allegations against Harvey Weinstein and other public figures have brought the issue of sexual harassment to the forefront of public attention. This news should remind employers of their responsibilities to establish preventative and remedial measures against sexual harassment and other forms of workplace misconduct. While New Jersey courts have long mentioned the responsibility of employers to investigate allegations of sexual harassment, relatively little guidance exists as to what constitutes an effective investigation. This article explores the investigation process and highlights some areas of legal concern for any investigator.

Relevant Decisions

In Lehmann v. Toys R Us, 132 N.J. 587 (1993), the New Jersey Supreme Court held that an employer could be liable for the sexual harassment of its employees in two ways: (1) for negligence or recklessness in failure to remediate the harassment; or (2) vicariously liability for the acts of its supervisors. However, Lehmann was ambiguous as to whether an employer could assert an affirmative defense to a claim for vicarious liability.

The New Jersey Supreme Court took up that very issue in Aguas v. State, 220 N.J. 494, 512 (2015). In Aguas, the majority of the court concluded that its jurisprudence, as well as public policy considerations, supported the availability of an affirmative defense to vicarious liability based on the employer’s creation and enforcement of an effective policy against sexual harassment. Id. at 514. The court then formally adopted the affirmative defense established by the United States Supreme Court for parallel Title VII cases in Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775, 807–08 (1998). To obtain the protection of this affirmative defense, an employer must prove that: it did not take a tangible employment action against the plaintiff; it exercised reasonable care to prevent and to promptly correct the sexually harassing behavior; and the plaintiff unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer or to otherwise avoid harm. Aguas v. State, 220 N.J. at 521.

A main takeaway from Aguas is that while an employer may be entitled to an affirmative defense for the acts of its supervisors, this defense will not apply unless the employer conscientiously investigates claims of sexual harassment. However, New Jersey courts have not discussed in great detail how workplace investigations into sexual harassment should be performed. While investigations are heavily fact-intensive by nature, a few fundamental principles have emerged.

Act Promptly

A prompt response to a complaint is fundamental to an effective investigation. While courts have not established any bright-line rules in this area, employers are required to move expeditiously in commencing and carrying out the investigation. Generally, when an investigation is being done internally, it should be commenced as soon as possible. In New Jersey, the Appellate Division affirmed summary judgment in favor of an employer when it had “swiftly” investigated the plaintiff’s complaint and disciplined the accused. See Edries v. Quick Chek Food Stores, 2017 WL 244100, at *7 (N.J. App. Div. Jan. 20, 2017).

Interviewing the Witnesses & Gathering Relevant Information

At its core, an investigation is a fact-finding mission. As such, the investigator must gather the relevant information, which should include a copy of any written complaint, the organization’s anti-harassment policy, and relevant portions of personnel files of the alleged harasser and the complainant.

Absent extraordinary circumstances, an investigation should include an interview of all those who have relevant information. At a minimum, the investigator will have to interview the complainant and the accused in order to gather the relevant facts and to assess their credibility. It is generally preferable to interview the complainant first in order for the investigator to have a complete grasp of the allegations.

Content of the Interviews

The EEOC has furnished guidance in this area by formulating suggested questions to be asked at these interviews. See EEOC Guidance on Vicarious Liability Employer Liability For Unlawful Harassment by Supervisors, June 18, 1999. These guidelines suggest, at a minimum, that the complainant be asked to provide as much detail as possible about the incident. The interviewer should ask open-ended questions and allow the complainant the necessary time to detail all allegations. Moreover, the interviewer should ask follow-ups in order to uncover details the complainant may not realize are relevant. The complainant should be asked to provide any documentation he or she may have to substantiate the allegations, and should be asked the names of possible witnesses or those with relevant information.

When interviewing the accused, he or she should be informed of the factual allegations of the complaint. Moreover, the accused should be asked whether there are any possible motives for the complainant to fabricate the allegations, and whether he or she knows of any other people who may possess relevant evidence. The accused should also be asked for any documentation that may help disprove an allegation.

Finally, the complainant should generally be re-interviewed at the end of the investigation. This gives the investigator the opportunity to ask any pertinent follow-up questions that may have arisen during the investigation. Overall, it is critical that the investigator use these interviews to get at the truth rather than simply protect the employer’s best interests. See, e.g., Pollard v. E.I. DuPont de Nemours Co., 213 F.3d 933, 942 (6th Cir. 2000), rev’d on other grounds. 532 U.S. 843 (2001) (finding that an investigation was inadequate when the interview merely consisted of yes-or-no questions to each employee without any follow-up questions).

Tape Recording the Interviews

While there are divergent views on the topic, the investigator should consider generally tape recording the interviews. Tape recording provides a permanent record of the interviewee’s statements. This can be useful in formulating the investigator’s factual findings and protecting the credibility of the investigation if a witness challenges the investigator’s account of the interview. While some investigators fear that the knowledge of being recorded may cause some witnesses to be less candid in their responses, the need for a permanent record of the interview often outweighs this concern.

Confidentiality in Interviews

Until recently, it was standard practice for investigators to warn those being interviewed not to divulge the contents of the interview, often on penalty of termination. Generally, the purpose behind this practice was to prevent witnesses from being intimidated or having their testimony corrupted. However, in Banner Health System D/B/A/ Banner Estrella Medical Centers, 362 NLRB No. 137 (June 26, 2015), the NLRB held that employees have a right to discuss disciplinary investigations involving themselves or coworkers. The board based its decision on Section 7 of the National Labor Relations Act, which provides that employees have a right to discuss freely work conditions as a protected form of activity. See 29 U.S.C. §157. The board recognized exceptions for instances where the employer can show a “legitimate and substantial justification” for imposing confidentiality. These circumstances could arise when: (1) witnesses are in danger; (2) evidence is in danger of being destroyed; (3) testimony is at risk of being fabricated; (4) there is a need to prevent a cover-up; or (5) any other comparable serious threat.

On appeal, the Court of Appeals for the District of Columbia affirmed in part and reversed in part the board’s decision. The D.C. Circuit found that the board lacked substantial evidence to find that Banner had established a categorical rule requiring confidentiality, which would be prohibited. Banner Health Sys. v. Nat’l Labor Relations Bd., 851 F.3d 35, 44 (D.C. Cir. 2017). While Banner’s investigative interview form instructed investigators to require confidentiality, Banner’s HR consultant had merely testified that she would request confidentiality on a case-specific basis. The court held that this evidence did not support the board’s finding that Banner imposed a confidentiality requirement in all cases, and accordingly remanded for further proceedings. Id. at 44-45.

Unless one of the exceptions mentioned above can be demonstrated, workplace investigators are prohibited from imposing categorical confidentiality restrictions on interviewees. As such, investigators must now determine on a case-by-case basis whether the need for confidentiality can meet one of the exceptions set forth in Banner. If an investigator cannot justify a demand for confidentiality, it may be advisable to schedule interviews in close proximity to each other in order to reduce the risk of witnesses discussing the matter in between their interviews. Moreover, witnesses should be reminded that anything they say about the investigation to a coworker may be uncovered as the investigation proceeds. While investigators must avoid imposing a categorical rule of confidentiality, investigators still appear to be free to ask for discretion on the part of person being interviewed as one means of preserving confidentiality.

Involvement of the Alleged Harasser’s Attorney

Another possible complication to the investigatory process arises when the alleged harasser wants to have his or her attorney present during the interview. Employees generally do not have a constitutional right to counsel when they are testifying in an investigatory proceeding such as a workplace investigation. See Greer v. New Jersey Bureau of Securities, 291 N.J. Super. 365, 372 (App. Div. 1994). The involvement of the accused’s attorney is potentially problematic in that the investigator runs the risk of losing control of the investigation. As such, appropriate steps should be taken to conduct the investigation without this interference. However, an investigator should be aware that unionized workers may have a right to have a union representative present at an internal investigation that could result in disciplinary action. See N.L.R.B. v. J. Weingarten, 420 U.S. 251, 254 (1975).

It is also possible that the alleged harasser will refuse to cooperate with the investigation. This cannot be allowed to impede the investigation; rather, the refusal to cooperate should be considered an important factor to weigh when formulating conclusions as to the veracity of the complainant’s story. At times arrangements can be made to allow the presence of the attorney but limit the attorney’s involvement and perspectives.

Protecting the Complainant During the Pendency of the Investigation

Moreover, the complainant should be protected from retaliation during the pendency of the investigation. At a minimum, this will include separating the alleged harasser and the complainant until the investigation is completed. A separation will demonstrate that the employer is taking the situation seriously by altering the current work environment while the claim is being investigated; it can also help insulate the employer from a retaliation claim based on the complainant’s continued interaction with the alleged harasser.

Formulating Conclusions & Issuing a Written Report

Having gathered the relevant facts, the investigator should prepare a written report summarizing his or her findings and making conclusions. At least one recent decision from a federal court in New Jersey suggests that the failure to issue a comprehensive report can support a finding that the investigation was inadequate. In Papp v. MRS BPO, 2015 WL 5247005, at *10 (D.N.J. Sept. 9, 2015), the court found that while the defendants’ investigator had interviewed witnesses, no report had been created other “than several pages of sparse and unorganized handwritten notes.” Moreover, the court noted that the plaintiff and the alleged harasser had not been separated during the investigation and the allegations had only been addressed through a “verbal rundown” of the company’s policy on sexual harassment. As such, the court held that a reasonable jury could conclude that the investigation had been inadequate. Id.

Taking Action After the Conclusion of the Investigation

When an allegation of wrongdoing has been substantiated, appropriate discipline must be handed down to the harasser. Obviously, the level of punishment will vary depending on the accusations and could range from termination, a demerit, or remedial training on the company’s policies. Even when the investigation is inconclusive, it may be preferable to arrange for the parties to be separated in order to prevent any recurring problems.

Conclusion

Aguas v. State should serve as an incentive for employers to conduct conscientious and effective investigations of sexual harassment. The failure to do so may cause the employer to lose an affirmative defense to vicarious liability.

 

Raynes is a partner at Wiley Malehorn Sirota & Raynes in Morristown. Byrne is an associate with the firm.  The firm, among many other things, conducts workplace investigations.