Mcle Self-study: the Meaning of "due Process" in Harassment Investigations

• Jurisdiction: United States,Federal
• Author: By Amy Oppenheimer and Alezah Trigueros
• Publication year: 2019
• Citation: Vol. 33 No. 6

MCLE Self-Study: The Meaning of "Due Process" in Harassment Investigations

By Amy Oppenheimer and Alezah Trigueros

Amy Oppenheimer leads a law office focused on workplace investigations, training, and mediation of workplace disputes. She is co-author of Investigating Workplace Harassment: How to be Fair, Thorough, and Legal, (Society for Human Resource Management, 2003), and is the founder of the Association of Workplace Investigators, Inc. (AWI). Alezah Trigueros, an associate at the law offices of Amy Oppenheimer, investigates workplace harassment and misconduct and allegations of sexual assault in schools and universities, both public and private. Ms. Trigueros also conducts workplace assessments.

I. Introduction

The #MeToo movement shone a light on the pervasiveness of sexual harassment, bringing into the public consciousness the breadth and scale of harassment faced by women in the workplace, in educational institutions, and in their private lives. The movement has also placed increased pressure on employers and educational institutions to address harassment occurring in those settings and to take action against individuals found to have engaged in prohibited conduct. This in turn has led to concerns regarding the rights of those accused of engaging in sexual harassment and questions of whether the investigations and adjudications of harassment complaints in employment and educational settings afford due process to the accused.

There are two different standards of due process in the context of the investigation and adjudication of harassment complaints in the workplace. In the private sector, where employees are generally at will, the accused does not have formalized due process protections. However, case law, discussed below, sets forth some basic due process rights under these circumstances. In the public sector, there are greater due process protections because public employees have a property interest in their jobs and the government is constrained in its ability to deprive an individual of a property interest. A third, more stringent standard of due process is evolving in educational institutions that receive federal funding. Recent cases have also imposed more stringent procedures in sexual assault cases that have not been applied in an employment setting but are nevertheless instructive of how these issues are viewed.

It is noteworthy that harassment differs from other types of misconduct due to the significant impact on the individual being targeted. Other terminable conduct, such as poor attendance or poor performance, does not impact other employees in the manner that harassment does. And, importantly, employers have legal duties to protect other employees from harassment. Because of this, when it comes to harassment cases, a heightened level of due process may conflict with an employer's affirmative duty to prevent and respond to workplace harassment. If heightened due process rights lead the target of harassment to feel unprotected, it could result in fewer targets of harassment bringing forward complaints, and result in these employees either suffering the harassment or leaving the employment.

This article examines the processes that afford fundamental fairness to employees who are accused of harassment and argues that an evidentiary hearing is not necessary to provide fundamental fairness to the accused. Rather, a thoroughly conducted workplace investigation provides a process that is fair to both the targets of harassment and the accused.

II. Procedural Due Process

Due process represents the broad concept that our laws and how they are enforced must be fundamentally fair. The right to due process is referenced twice in the U.S. Constitution in the context of government actions. The Fifth Amendment states that no person "shall be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment states that no State shall "deprive any person of life, liberty, or property, without due process of law."¹

There are two types of due process: procedural due process and substantive due process. Procedural due process, the focus of this article, refers to the fair procedures that the government must adhere to before it can deprive a person of life, liberty, or property. Substantive due process, on the other hand, protects against the deprivation of a fundamental right.

III. Due Process Rights of Public Employees

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In the workplace, it has long been established that public employees have a property interest in their jobs and, therefore, for a government actor to deprive an employee of that property interest (for example by terminating the employee or suspending the employee without pay), due process must be afforded. For example, in Arnett v. Kennedy², the Court held that due process protected the right of a non-probationary federal civil service employee to continue his position absent just cause for dismissal. This also holds in public education. In Goss v. Lopez³, the Court found that "[h]aving chosen to extend the right to an education," the State could not "withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred."

Having established that the government cannot deprive individuals of their protected interests without affording a fundamentally fair process, the question is what that due process entails. The Constitution does not outline a mechanism for due process. Rather, legislation and judicial precedents have, over time, fleshed out what specific protections are required to ensure procedural fairness, and these specifics have varied depending on the type of action being taken. That is, a criminal case is subject to more stringent due process requirements than a civil case, which is subject to more stringent requirements than an administrative...