NFL Hires Outside Investigator . . . Should You?

This post was contributed by Adam Santucci, Esq., an Associate in McNees Wallace & Nurick LLC's Labor & Employment Law Group.

The National Football League ("NFL") has hired an outside investigator to handle the complaint made by Jonathan Martin, an offensive lineman for the Miami Dolphins. The national news media cannot seem to get enough of this story, and the coverage has been relentless. The media, however, seems to have focused on the bullying angle. But for some of us, based on the reports, it looks like there was more than just bullying going on. If the allegations are true there may be violations of the league's workplace harassment policy as well. Given the dynamics here, and the high profile nature of the situation, we think it makes a lot of sense for the NFL (and the union) to bring in an investigator from the outside.

An employer's investigation of workplace harassment is often critical to its subsequent defense of any related lawsuits. A good investigation that results in appropriate corrective action typically means a good defense to a claim of workplace harassment. The law encourages employers to be proactive and promptly investigate incidents that occur and rewards employers who take those steps.

But who should conduct the investigation?

We often talk about this issue with our clients: who is the best person to investigate a complaint of workplace harassment? The answer is, it depends. In many instances, a fresh perspective is helpful. In others, using an investigator familiar with the players may be better.

  • Will this investigator be a good witness if necessary? As noted above, the investigation itself may be an issue in any subsequent litigation and the investigator may become a witness, so pick a good one!
  • Will the investigator be able to represent the employer if there is a lawsuit? In some instances, counsel who serves as the investigator may not be able to defend the case.
  • Is this a particularly difficult situation? Outside investigators often have experience in handling difficult cases, including cases that involve employees at the upper levels of the organization.
  • Is there an allegation that involves the Human Resources Department?
  • Evidence created by the investigation may be discoverable in subsequent litigation.
  • The use of an outside investigator may strengthen the appearance of impartiality.

Also keep in mind that the investigator must be impartial (and viewed as impartial) to be effective, and must be familiar with your policies. The investigator must also be a good communicator, because educating those involved during the process is important. You may even want to consider using two investigators in appropriate cases.

As the NFL situation indicates, picking an investigator is important, and there are certainly times when it is in an employer's best interest to use an investigator from outside of the organization.

EEOC Issues Guidance on Potential Application of Title VII and ADA to Employees Who Have Experienced Domestic Violence, Sexual Assault, or Stalking

This post was contributed by Tony D. Dick, an Associate in McNees Wallace and Nurick LLC's Labor and Employment Group in Columbus, Ohio.

The Equal Employment Opportunity Commission (EEOC) recently issued a “Questions and Answers” sheet emphasizing that although Title VII and the Americans with Disabilities Act (ADA) do not expressly prohibit employers from discriminating against the victims of domestic violence, sexual assault, or stalking, these laws may create liability for employers in certain circumstances. For instance, employers may be liable under Title VII for treating such victims less favorably based on sex or sex stereotypes or for permitting sexual harassment against these individuals. Likewise, denying a reasonable accommodation to an employee with a violence-related disability or permitting different treatment of an employee with a disability stemming from an incident of domestic violence or sexual assault may violate the ADA. The document provides a number of illustrative examples of these potential pitfalls facing employers:

 

 

Title VII – Disparate Treatment Based on Sex

  • An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
  • An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly-situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experiences. The employer says the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”

Title VII – Sexual Harassment

  • An employee's co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women's bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

Title VII - Retaliation

  • An employee files a complaint with her employer's human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.


ADA – Disparate Treatment Based on Disability

  • An employer searches an applicant's name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

ADA – Failure to Accommodate Disability

  • An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it "applies leave and attendance policies the same way to all employees."
  • In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its "no transfer" policy.

Additional examples are provided in the document. It is worth the read. Employers should make their supervisors and managers aware of these potential issues so that they can identify them and take appropriate action when they arise.
 

Follow Up: A Reminder Regarding the Importance of Supervisor Training

This post was contributed by Kelly Horein, a Summer Associate with McNees Wallace and Nurick LLC. Ms. Horein will begin her third year of law school at Boston University School of Law in the fall, and she expects to earn her J.D. in May 2012.

Two weeks ago we discussed the importance of providing discrimination and harassment training to supervisors and managers. To follow up on that post, we thought it would be a good idea to provide a brief overview of the key aspects of an effective supervisor training program.

As we previously mentioned, the Equal Employment Opportunity Commission (EEOC) has clearly stated that it is important to train all supervisors and managers, and not just those charged with receiving and investigating complaints. In addition, we suggest that employers provide training to all new supervisors, provide annual training sessions, and provide additional training sessions when changes are made to harassment policies. It is also important to document when training sessions are conducted, who attends those sessions, and the content of each session.

An effective training session should cover key topics, designed to help supervisors prevent harassment and remedy harassment that does occur, and these key points include:

  • educating supervisors regarding what conduct is inappropriate;
  • ensuring supervisors understand that they are required to report complaints of harassment or incidents they observe;
  • ensuring supervisors understand that employees are permitted to make both informal and formal complaints of harassment, and that all such complaints must be investigated;
  • describing the multiple channels through which employees can make complaints;
  • detailing the complaint investigation and resolution process; and
  • ensuring supervisors understand that retaliation is strictly prohibited.

A quality training session will be designed to educate supervisors and managers on appropriate workplace behavior and to help them avoid engaging in discriminatory conduct. Supervisors must be trained to appropriately respond to complaints and to report incidents of harassment. Supervisors should also be aware of the consequences for failing to do so. As you can see, merely reiterating the content of a policy during a training session does not constitute effective supervisory training. Some states, such as California, even have specific requirements for supervisor training, including the minimum duration and frequency of such training.

Employers can also benefit from regularly training supervisors in a broader range of human resources issues, including hiring and interviewing techniques, discipline and performance management, employee privacy, Family and Medical Leave Act requirements, wage and hour issues, and maintaining a safe workplace.

McNees Wallace & Nurick's Labor and Employment Group can help employers develop effective training programs.  McNees can also provide a list of suggested supervisory training topics, suggested re-training time lines and course materials. You can contact a McNees attorney by clicking here.

A Reminder Regarding the Importance of Supervisor Training

This post was developed with the assistance of Kelly Horein, a Summer Associate with McNees Wallace and Nurick LLC. Ms. Horein will begin her third year of law school at Boston University School of Law in the fall, and she expects to earn her J.D. in May 2012.

According to the Equal Employment Opportunity Commission (EEOC), employees filed a record number of workplace discrimination charges last year. As a result, it is now more important than ever for employers to take steps to prevent unlawful discrimination and harassment in the workplace.

Most savvy human resource professionals know that they must maintain antidiscrimination policies with adequate reporting procedures to help avoid liability. However, it is just as important to train supervisors and managers regarding the implementation of those policies. Unfortunately, when times get tough, employers are often forced to cut costs and training is usually one of the first items on the chopping block. If your organization scaled back training during the economic downturn, it may again be time to rally support for supervisor training.

Effective training for supervisors and managers actually helps reduce costs in the long run, because it helps supervisors prevent claims before they are filed. The United States Supreme Court and the EEOC have emphasized the importance of supervisor training in the context of discrimination and harassment claims. Indeed, training is recognized under the law as an essential part of an "affirmative defense" to claims that supervisors engaged in harassment. If an employee alleges that harassment by a supervisor created a hostile work environment, then the employer may raise a two-part defense. An employer is not subject to strict liability for a supervisor's conduct where the employer can show that (1) the employer took reasonable measures to prevent harassment and promptly correct it when it occurred and (2) the employee failed to take advantage of established mechanisms for filing complaints.

Human resources professionals can be instrumental in helping their employers take "reasonable measures to prevent harassment." However, the Third Circuit Court of Appeals, which covers Pennsylvania, has stated that in order to show that an employer took such reasonable measures, the employer must do more than simply adopt an antidiscrimination policy.

Effective training is critical.

According to the EEOC'S Enforcement Guidance on Vicarious Employer Liability For Unlawful Harassment by Supervisors, it is important to train all supervisors and managers, regardless of whether they are the staff members designated to take complaints. Although no courts have definitively established how frequently supervisory training must be provided, employers who have been successful in having claims dismissed typically offer annual training sessions. Employers should also offer additional training sessions if they modify their antidiscrimination policy or hire new supervisors. It is also important for employers to document when training sessions are conducted, who attends those sessions, and the content of each session.

In fact, employers should provide discriminatory harassment training to all employees, not just supervisors and managers. The fact that an employee knows how to properly file a harassment complaint demonstrates that the employer took reasonable measures to educate its employees and, thus, prevent harassment.

In an increasing number of cases, employers are winning discrimination lawsuits on the basis of their preventive training programs. This point is critical for senior management to understand: regular, effective antidiscrimination and anti-harassment training can generate significant cost savings.

McNees Wallace & Nurick's Labor and Employment Group has developed discrimination and harassment training materials for employers, and can help employers develop effective training programs, which incorporate their specific antidiscrimination policies. You can contact McNees by clicking here.

 

Keep Supervisors Out of Harassment Policy Reporting Procedures

Oftentimes, it seems like the requirements of the law conflict with long held workplace beliefs, and in some cases common sense. One staple of workplace dogma is the notion that employees should always bring issues to supervisors first, so that issues can be addressed, and hopefully resolved, at the lowest possible level. According to the law, however, when it comes to discriminatory harassment, supervisors should be left out of the loop.

A recent case, Gorzynski v. JetBlue Airways Corp.(PDF), illustrates this point. In JetBlue, the Company had a policy that allowed employees to bring complaints to their immediate supervisor, Human Resources, or any member of management. The plaintiff, a former employee at the time she filed her suit under Title VII, alleged that her former supervisor had created a hostile work environment by, among other things, making sexual comments, grabbing her and other women, and tickling women. While she was employed, the Plaintiff only complained about this alleged harassment to the supervisor.

The Company argued that reporting the harassment only to the supervisor, the same person engaging in the alleged misconduct was not reasonable, and therefore, the Company was entitled to rely on the Faragher/Ellerth affirmative defense to discriminatory harassment claims. The Faragher/Ellerth defense is a defense against liability that is available to employers in certain circumstances if two conditions are met. First, the employer must take reasonable measures to prevent and quickly correct any harassing conduct; and second, the employee must unreasonably fail to take advantage of the preventative or corrective measures available. The trial court agreed with the Company that the former employee's failure to report the alleged harassment to another point of contact was unreasonable, and dismissed her harassment claim.

The Second Circuit Court of Appeals, however, rejected the Company's argument. The Court of Appeals stated that the former employee's allegations made out an actionable hostile work environment claim based on sex, and went on to hold that employees do not have to shop around for someone to address their complaints. Instead, whether an employee reasonably took advantage of the employer's complaint reporting procedure will be decided on a case-by-case basis. The Court of Appeals determined that in this case, a jury could find that the former employee's actions were not unreasonable because she was following the Company policy by reporting the conduct to her supervisor.

There were some additional facts in this case that were detrimental to the Company's argument. However, it still provides a reminder that insufficient harassment policies will prevent employers from asserting the Faragher/Ellerth affirmative defense, which is a means for having harassment claims dismissed. The Gorzynski decision makes it more difficult to get harassment claims dismissed early, because the Faragher/Ellerth defense will now be judged on a case-by-case basis, at least in the Second Circuit.

Even though this decision is not controlling in Pennsylvania courts, Pennsylvania employers should take time to review their discriminatory harassment policies, including sexual harassment policies, and ensure that supervisors are not designated as a reporting point of contact. Instead, reporting points of contacts should be limited to Human Resource staff and upper management personnel, and employees should be directed to utilize alternative points of contact if one point of contact is the alleged harasser.
 

Who is a "Management Level Employee" for Imputing Notice of Co-worker Harassment to an Employer?

An employer's liability for co-worker harassment exists if the employer knew or should have known of the harassment and failed to take prompt remedial action. In other words, an employer may be liable for non-supervisory co-worker harassment if the employer was negligent in failing to discover the co-worker harassment or in responding to a report of harassment. Knowledge of a sexually hostile work environment arises when a "management level employee" obtains enough information to raise the probability of sexual harassment in the mind of a reasonable employer.

In its decision in Huston v. The Proctor & Gamble Paper Products Corp., the Third Circuit Court of Appeals concluded that an employee’s knowledge of allegations of co-worker sexual harassment may typically be imputed to the employer in two circumstances:

  1. "where the employee is sufficiently senior in the employer’s governing hierarchy, or otherwise in a position of administrative responsibility over employees under him, such as a departmental or plant manager, so that such knowledge is important to the employee’s general managerial duties. In this case, the employee usually has the authority to act on behalf of the employer to stop the harassment, for example, by disciplining employees or by changing their employment status or work assignments. The employee’s knowledge of sexual harassment is then imputed to the employer because it is significant to the employee’s general mandate to manage employer resources, including humanresources;" or
  2. "where the employee is specifically employed to deal with sexual harassment. Typicallysuch an employee will be part of the employer’s human resources, personnel, or employee relations group or department. Often an employer will designate a human resources manager as a point person for receiving complaints of harassment. In this circumstance, employee knowledge is imputed to the employer based on the specific mandate from the employer to respond to and report on sexual harassment."

The court went on to clarify that mere supervisory authority over the performance of work assignments by other co-workers is not, by itself, sufficient to qualify an employee for management level status unless the worker has  a mandate generally to regulate the workplace environment. This reasonably bright line test should help employers to avoid allegations of constructive knowledge of workplace problems; provided, job descriptions clearly define the employee's job duties. Employers should examine generalized policy statements that create a "duty" to report workplace harassment or mistreatment.

Title VII's Antiretaliation Protections can extend to an Employee's Involvement as a Witness in an Employer's Internal Investigation

In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer's internal investigation into harassment. The Court held that an employee's involvement in the employer's internal investigation constituted opposition to unlawful employment practices when she responded to her employer's questions in a manner disapproving of accused harasser's sexually obnoxious behavior toward her. The Court's decision unfortunately does not create a bright line standard for employers defining the scope of an employee's involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.

Under the facts of the case, Metropolitan began an investigation into rumors of sexual harassment by its employee relations director. Crawford was asked in an interview if she observed any "inappropriate behavior" to which she recounted several incidents of sexually harassing behavior directed at her by the employee relations director. Subsequently, Metropolitan took no action against the director, but fired Crawford for embezzlement. Crawford filed a discrimination complaint claiming retaliation for her comments in the investigation.

The lower courts dismissed her retaliation claim holding that Title VII's retaliation protections “‘demand active, consistent “opposing” activities to warrant . . . protection against retaliation,’”. Crawford was not protected since she did “not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing.”

The U.S. Supreme Court reversed holding that the antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Crawford’s statement was covered by the opposition clause, as an ostensibly disapproving account of alleged harasser's sexually obnoxious behavior toward her.   The court reasoned that a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a "freakish rule" protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question.

The Court also noted that employers have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because “[a]n employer . . .is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee.” The Court criticized the Circuit’s rule on the basis that it could undermine Title VII's retaliation protections because, if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.

Disappointingly, the Court chose not to further illuminate the scope of retaliation protections.

Managing the Holiday Cheer at this Year's Office Party

In these difficult economic times, the traditional holiday office party may be particularly important to promoting positive employee relations.  On the other hand, the event could also become a forum for criticism, particularly when a business has undergone dramatic changes like layoffs or compensation scale backs.  Whatever approach your business decides to take, managing the "holiday cheer" may be more important than ever.

Mixing alcohol and employees can result in a wide spectrum of possible negative outcomes ranging from mildly embarrassing to catastrophic. Like all good lawyers, we'll focus on the catastrophic: the automobile accident and the discrimination lawsuit. 

In Pennsylvania, there is little difference in liability between an employer/host and the social host of a private party in a home. Whether the party is thrown by an employer or an individual, there is generally no liability for an adult host when an adult employee, guest or someone else is injured by an adult drunk driver who may have been served at the party. Courts reason that "it is the consumption of alcohol rather than the furnishing thereof, that is the proximate cause of any subsequent damage". However, there is liability for any host (whether an employer or a private person) who knowingly serves alcohol to anyone under age 21. 

Employer's may also face claims from employees injured by the consumption of alcohol under employee benefit programs like workers' compensation insurance, medical and accident policies. Employee benefit plan and insurance exclusion for injuries arising from operating a vehicle while intoxicated are generally upheld.  

Work parties are generally considered as arising out of or in the course of an employee's job, even if attendance is not mandatory. Although workers' compensation law bars recovery for injuries or death caused by violation of law (i.e. driving under the influence), it also requires that the intoxication be the proximate cause of the accident causing the injury. In some cases, employees have recovered worker's compensation benefits because the employer could not prove that the accident would not have happened unless the employee was intoxicated. 

Employers may also spend their post-holiday hours sorting out employee disciplinary actions which sometimes ferment into claims of sexual harassment and disability discrimination. Alcohol consumption has been known to cloud judgment and blur the clear line between welcome and unwelcome conduct. Alcohol related misconduct can also bring to light an employee's alcoholism. Although alcoholism is a "disability" under discrimination laws, it does not insulate an employee from discipline or discharge for the conduct arising from his or her impairment. 

Managing alcohol consumption at employer events can mitigate liability and reduce the risk of accidents. The following is a partial list of ideas to incorporate into your next office party:

  • Circulate to employees a kindly worded reminder about drinking and driving and the consumption of alcohol by employees under the age of 21.
  • Consider engaging professional bartenders if they are not already part of your event.
  • Give bartenders rules on serving minors and intoxicated employees.
  • Avoid self-serve alcohol or long periods of "open bar."
  • Don't allow drinking to become the focus of the event.
  • Don't allow individuals to be pressured into drinking.
  • Monitor conduct and don't be afraid to intervene if conduct or alcohol consumption become inappropriate.
  • Have a designated driver or call a cab for someone who shouldn't be driving.

Wishing you a safe and happy holiday season!

First Amendment Free Speech Protections Limit University's Enforcement of its Sexual Harassment Policy

A Federal Appeals Court in Philadelphia enjoined Temple University from enforcing its “facially overbroad” sexual harassment policy because some speech that creates a “hostile or offensive environment” may be protected speech under the First Amendment. In DeJohn v. Temple University, the Third Circuit Court of Appeals invalidated a public university’s Policy on Sexual Harassment that reads like that of many private employer’s, finding fault with the italicized language:

For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors,  or other expressive, visual or physical conduct of a sexual or gender-motivated nature when… (c ) such conduct has the purpose and effect of unreasonably interfering with an individual’s work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile or offensive environment.

The court found three areas of the policy language that were overboard so as to potentially stifle protected free speech:

  • The phrase “gender-motivated nature” is too indefinite taking into account the speaker’s motivations not limiting only the affect of speech and possibly inhibiting expression of a broad range of social issues. The Court also cautioned that “we must be aware that ‘gender’ to some people, is a fluid concept.”
  • The phrase “conduct which has the purpose and effect of unreasonably interfering” is too broad as it prohibits speech that “intends” to cause disruption. The university may only prohibited speeches that it reasonably believes will actually and materially disrupt the learning environment. (Interestingly, the “purpose and effect” language used by the EEOC.)
  • The phrase “unreasonably interfere[s] with an individual’s work” is too restrictive because it may encompass speech that creates a hostile or offensive environment but is protected nonetheless. A policy may prohibit speech that “substantially” interferes by using an additional standard like “severe and pervasive.”

Many employees in the private sector believe they have a constitutional right to say whatever they want in the workplace.  This is not the case and employees in the private sector may be disciplined for violating workplace conduct standards.

Private employers are not subject to the free speech protections of the First Amendment.  They can also take solace in the fact that a federal court is less likely to wordsmith their employment policies. The case shows the difficulty that all employers face in regulating workplace speech and conduct.  There are obvious challenges in drafting a harassment policy that is not so replete with legalese that is becomes incomprehensible to the workforce.

Investigating Employee Misconduct based on Electronic Evidence may be limited by the Weakness of an Employer's Policies

The prevalence of e-mail and texting communications can aid an employer in its investigation of workplace misconduct; provided, the employer’s policy adequately preserves its right to access the data. However, overstepping rights to access e-mail and other electronic communication media can result in criminal prosecution under state and federal law.

Recent high profile firings of Philadelphia TV anchors highlight the role of electronic evidence in an employer’s investigations and the pitfalls of illegal access to private computer data, in this case by an employee. Fired TV newscaster Larry Mendte was charged July 21, 2008 with hacking into the e-mail of his younger co-anchor. Mendte was previously fired based on an independent investigation by CBS as he allegedly hacked into Lane’s e-mail account from work and home and then revealed information to news outlets about Lane’s legal troubles. Lane was fired in January by CBS after she was accused of assaulting a New York City Police Officer and other public gaffes which gained media attention. Lane since sued KYW-TV, claiming that the station exploited her, tore her down and defamed her on her way out the door. She also claims that KYW management failed to investigate leaks of personal information about her and also engaged in a pattern of "deep-seated gender-discriminatory animus" toward her and other female employees.  Undoubtedly, CBS's investigation into the circumstances of both firings will be the critical issues in subsequent lawsuits.

Federal and State laws protect employers and employees from unauthorized access to computers, servers and electronic data. There may be additional limitations on an employer’s access to employee e-mails and text messages sent from employer accounts when the messages are stored on third party provider’s servers and are not stored on employer’s internal network. In Quon v. Arch Wireless Operating Co. Inc., a federal appeals court in California held that a public employer cannot access the content of text messages and e-mails sent at work because the data was stored on a third party service provider’s server and the employees had a reasonable expectation of privacy in these accounts. An employer’s e-mail policy may eliminate the expectation of privacy as to e-mails stored on its servers.  However, the text messages held by “remote computing service” are protected under the Stored Communications Act and cannot be obtained by an employer without the employee’s consent.

Employers must carefully draft policies related to employee use and access to all electronic media so as to preserve its property interest in the data, ensure rights to unfettered access and prevent misuse of the media and information.