Sexual Harassment Claims

At the 2019 PARMA Annual Conference, a panel discussed sexual harassment claims. The speakers were:

• Brenna Hampton – Hannah Brophy
• Teresa McGinty – Hannah Brophy
• Tyrone Spears – City of Los Angeles

Under California law, sexual harassment is defined as negative, inappropriate or unwanted conduct directed towards a worker based on their:

• Sex
• Gender and gender identity
• Marital status
• Sexual orientation
• Pregnancy or pregnancy related medical condition
• Childbirth.

There are two main types of sexual harassment:

• Quid pro quo – Employment is conditional upon the employee’s acceptance of a supervisor’s unwelcome sexual advances
• Hostile work environment – Inappropriate and unwelcome sexual conduct, which may not involve sexual advances, creates and abusive work environment.

When considering the validity of a hostile work environment claim, the courts will look at the severity, frequency and context of the complaints. The harassment must subjectively offend, humiliate or distress the victim. It must also be objectively hostile or aggressive. A few annoying or mildly office side comments are usually insufficient to pursue a claim.

Effective 01/01/19, California employers must provide all employees with sexual harassment training (SB 1343). This law applies to all employers with 5 or more employees including contractors. This is much broader law than before as previously this just applied to employers with 50 or more employees and only supervisors were required to undergo the training.

Investigating Sexual Harassment

1. Ensure Confidentiality

The employer must do everting practicals to protect the confidentiality of the person making the complaint. However, the employer should never propose absolute confidentiality as a claim cannot be fully investigated without divulging some specific information about the incidents in question.

2. Provide Interim Protection

Take immediate action to protect the accuser. This includes separating the accuser from the accused. This action could include schedule changes, transfer, or leave of absence. The employer and the accuser must work together to arrive at a solution in this area to avoid the appearance of retaliation. Employers should consult with legal counsel before making any decisions.

3. Select an Investigator

This can be internal Human Resources, a third party investigator, or legal counsel.

4. Create an Investigation Plan

• Outline the issues.
• Develop a list of potential witnesses.
• Identify other potential sources of information.
• Outline potential interview questions.
• Retain documents related to the claim.

5. Develop Interview Questions

These should be created during the planning process but should be adjusted as additional information is obtained. Questions should be relevant and designed to elicit the facts and be open-ended.

6. Conduct Interviews

The investigator should focus on being impartial and objective. They should never offer an opinion on the situation.

7. Make a Decision

Once all interviews are conducted and the investigation is complete, the investigator working with legal counsel should make a final determination of any employment actions that are necessary based on the report.

8. Develop Written Summary of Investigation Results

Assume that every invention could end up in litigation so make sure to have a very thorough paper trail of documentation of the investigation. This should include any notes taken during the process.

9. Closure of the Investigation

Once the decision is made the employer needs to notify both the complaining party and the accused of the outcome. When necessary, the employer must take corrective action that is appropriate to the situation including discipline or termination of the accused. The employer should also review their training and prevention programs to see if changes are needed to prevent future incidents.