CHAPTER 39

• Jurisdiction: United States

CHAPTER 39

Investigating Sexual Harassment

Amy Oppenheimer¹

Sexual harassment and assault arise in a number of different contexts, including criminal assault by strangers, family members, and domestic partners (which is handled by the police), street harassment (for which there is rarely a legal remedy), harassment in housing (usually toward low-income renters) but, most commonly, at schools and in employment. Employers and educational institutions in the United States are tasked with preventing and responding to sexual harassment and assault and as a result there is both law and practice relating to how employers and educational institutions should investigate harassment. Inadequate institutional response to sexual harassment can lead to increased legal liability and is damaging both to the targets of the harassment and the institution in countless ways. When faced with a complaint of sexual harassment or assault, an institution cannot take appropriate action without determining what actually happened and given that the facts of what happened are often in dispute, a timely, fair and thorough investigation can help determine what occurred before action is taken.

In the United States, workplace discrimination and harassment come under one area of the federal law (Title VII of the 1964 Civil Rights Act) whereas gender discrimination at educational institutions comes under a different law (Title IX of the Education Amendments Act of 1972).

Title IX has developed separately from Title VII. It has only been over the last decade that sexual harassment and assault have come to be viewed as a violation of Title IX—prior to that, most Title IX cases focused on women having equal access to sports. During the Obama administration, robust policies were put into place relating to Title IX. Many of these policies have been rolled back under President Trump. Nevertheless, and although the law differs, the practice relating to how investigations are conducted is similar. For example, as is explained later in this chapter, the burden of proof used in workplace investigations is a preponderance of the evidence, which was also the standard articulated for Title IX investigations under the Obama administration. The rules relating to the burden of proof have been changed so that the educational institutions may now determine which burden of proof to use and while some will no doubt institute a higher burden (such as "clear and convincing"), many are staying with the preponderance of the evidence standard.

Certainly, practice regarding investigations at educational institutions is more in flux. But much of the law and practice is similar to and informed by the law and practice related to workplace investigations. Thus, this chapter will cover what is considered typical and appropriate practice in investigating sexual harassment in the workplace in the United States, including the legal basis for doing so, the practical approach taken based on the law, and what changes may be afoot as a result of the #MeToo movement.

The Law and Guidance Relating to Workplace Investigations

In 1986, the United States Supreme Court first defined sexual harassment in its decision Vinson v. Meritor Savings Bank.² Twelve years later, in 1998, the United States Supreme Court decided two sexual harassment cases, Faragher and Ellerth,³ determining that under certain circumstances employers could avoid liability for sexual harassment if they took reasonable steps to prevent and respond to harassment. One upside of these decisions is that employers began to set policies prohibiting harassment and defining harassment more broadly than the law with the goal of addressing harassment before it met the legal threshold of being either severe or pervasive. Shortly after these decisions, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the law prohibiting employment discrimination (including sexual harassment), published guidelines for employers as to what actions to take to prevent and respond to sexual harassment.⁴ These guidelines were probably the first official mention of an employer's duty to investigate complaints of sexual harassment, though certainly employers were conducting such investigations prior to 1998.

In the years since Faragher/Ellerth, United States appellate courts have commented favorably or unfavorably on specific workplace investigations, finding some of them fair and thorough⁵ and others, essentially, a sham.⁶ This case law helped form the basis for what was expected of an adequate investigation. In addition, many employment law firms and human resource organizations, such as the Society for Human Resource Management (SHRM), have provided guidance and published handbooks that focus on how to properly conduct an internal investigation of sexual harassment, and a number of books cover this material.⁷ In 2012, the Association of Workplace Investigators (AWI), a professional organization for workplace investigators, published Guiding Principles for Investigators Conducting Impartial Workplace Investigations.⁸

The most current government guidelines relating to workplace investigations were published in 2017 by the Department of Fair Employment and Housing (DFEH), the state of California's enforcement agency.⁹ The guidelines were developed by the DFEH Task Force on the Prevention of Sexual Harassment in the Workplace. Formed in 2016, this Task Force studies the problem of sexual harassment, the effects of ten years of harassment-prevention training in the state of California, and best practices to prevent harassment. The DFEH guidelines include some big-picture information, such as designing and implementing effective harassment-prevention programs, but also zeros in on how to conduct a prompt, thorough, and fair investigation.

Based on the EEOC guidance, DFEH guidance, case law, and various handbooks and articles, there is largely consensus in the United States for what meets the standard for an appropriate investigation of a complaint of workplace harassment. The remainder of this chapter will focus on those elements.

Why and When to Do an Investigation

An investigation is needed when a complaint gives rise to contested facts that, if true, would violate the law or significant employer policies or expectations, and the employer is uncertain whether the actions complained of occurred (as opposed to conduct that was witnessed by a manager or conduct that was admitted by the respondent). At times, an investigation is not necessary. A complaint about conduct that would not violate the employer's rules does not call for an investigation, and if the conduct is admitted, the investigation can often stop there. At other times, a complaint (such as an anonymous complaint) is so general that it...