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Matthies Law Firm, P.C. |
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Serving
as Employment Law Advisors for over 25 years |
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Rules on Harassment
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1.
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Conduct by someone acting with the actual or apparent authority of the company (can be a coworker, a supervisor, or even a customer in some cases); |
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Which is directed toward an employee (or applicant) in a protected group; |
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3.
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Occurs because of the employee's protected group status (race, sex, etc.); |
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4.
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The actor knew or should have known this would be offensive to the recipient (Note: this element is not present where a supervisor causes a tangible job loss in connection with the harassment, as supervisors are presumed to know that this is illegal/offensive); |
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5.
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The conduct is, in fact, offensive to the recipient; |
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6.
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The conduct caused emotional and/or economic harm to the victim; |
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7.
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The harasser can be considered to be an "agent" of employer in carrying out the harassment (either by virtue of holding a supervisory position, or because company is considered to have condoned the harassment by failure to stop the conduct after becoming aware that it was occurring). |
See Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), as well as the EEOC Guidelines on Sexual Harassment (29 CFR {1604.11).
While the courts had little difficulty in fashioning a remedy for employees who were verbally abused because of their race or religion, or due to their handicap, the courts initially were quite leery of allowing such claims where the upsetting conduct occurred in the course of an attempt to initiate some type of romance with the woman employee, or arose because of gender differences in the use of coarse language. There have been a number of different reasons advanced by the courts for applying somewhat different rules to assessing male/female romantic interactions in the workplace (including the fact that men traditionally are the ones to initiate sexual relationships; men are notoriously bad mind-readers, so they are quite likely to make passes which will be rebuffed without meaning harm; and judges were reluctant to hold them accountable for following biological urges in a reasonably polite manner). In addition, the courts were reluctant to become "language police," given recognized differences in tolerance for coarse language between different women (and the difference in conduct of many males, depending on the ground rules set by the woman in question).
Thus, while the courts had no difficulty in allowing claims where males clearly were trying to drive women out of non-traditional jobs by using crude sexual jokes and crude treatment to embarrass or intimidate them into quitting, the courts initially proceeded very cautiously in allowing claims over sexual interactions in the workplace. Thus, the early sexual harassment decisions tended to focus on gross abuses of sexual power (such as situations where the male flatly made sexual favors to be a condition of continued employment, which any idiot would know would be illegal). These types of cases were called "quid pro quo" cases (a Latin term meaning "this for that" - ie., a business transaction), and the courts had no hesitation in finding these types of propositions to be illegal because the woman essentially was being required to become a prostitute to keep her job.
In addition to the "quid pro quo" cases, the courts also recognized claims for sexual harassment in situations where the harassment was so severe that it created a "hostile work environment." However, such claims were held in Vinson to be limited to cases where the conduct was "sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment." Moreover, employers were held to be liable for such conduct only if the employer knew or should have known that the actions of the harasser were "unwelcome" to the plaintiff (which became viewed as placing some obligation on the plaintiff to complain about the alleged harassment).
What exactly is a hostile work environment? In Harris v. Forklift Systems, Inc., 114 S. Ct. 367 (1993), the Supreme Court held that the following factors should be considered in deciding whether a work environment was hostile: (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it was physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interfered with an employee's work performance.
In general, really severe conduct has been found to create a hostile environment after just one or two occasions (e.g., it is generally accepted that any idiot should know that grabbing of sexual parts is offensive in the absence of some existing relationship). On the other hand, the conduct must be more severe and more frequent if it consists solely of off-color jokes (especially if not directed towards the plaintiff), as this is a type of conduct which does not offend all women, so the courts held that there usually will be some burden upon the plaintiff to let the jokester know that his conduct is offensive before a hostile environment will be held to exist. Even then, there is some question as to the extent to which an unwilling male must be forced to "clean up his act" to please a very prim coworker (and it is not uncommon to see claims of harassment dismissed if the victim is viewed as overly-sensitive or overly-rigid when compared to a reasonable person).
Even if the conduct has been found to create a "hostile environment," this is not the end of the inquiry - as employers may escape liability for conduct which has created a hostile environment if they adopt policies against such harassment and have sufficient complaint procedures to remedy complaints of harassment. In Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), the plaintiff claimed that a sales manager to whom her boss reported made a number of comments to her about her physique; suggested that he could make her life at the company easy or difficult; rubbed her knee and made a suggestive comment when discussing her request for a promotion (but then promoted her anyway); and made other suggestive comments which indicated a sexual interest in the plaintiff. She then quit and sued for constructive discharge, claiming that his conduct amounted to a threat of job loss (so that it was "quid pro quo" harassment) or, alternatively, that his conduct had created a "hostile work environment."
The company responded that no job loss had occurred or been threatened (so no "quid pro quo" harassment occurred) and that it made no difference if the conduct actually had created any hostile work environment (although it denied this) because the plaintiff knew that it had a policy against harassment; had not used the policy to report any harassment; and had deprived the company of any chance to fix the problem. The Supreme Court adopted most of the company's arguments, holding that:
When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages . . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment."
However, the Supreme Court held that companies are strictly liable for harassment by supervisors which resulted in economic injury or other tangible job losses (regardless of whether submission to the harassment is specifically conditioned upon "quid pro quo" demands - and regardless of whether any complaint has been made about the harassment). In essence, the Court decided that no express conditions had to be verbalized in order to make the company liable for concrete job actions resulting from the harassment which harmed the plaintiff.
In this case, because the facts revealed that no tangible job loss had been threatened (or had occurred), the Court ordered the case to be remanded for a hearing so that the parties would have an opportunity to litigate the issue of whether the failure of the plaintiff to complain barred her claim. In Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), it became quite clear that the decision to place the burden of proof on the company was very important. Why? Because, when a party has the burden of proof and cannot meet this burden, the other side automatically wins. This is precisely what happened in the Faragher case. There, the plaintiff sued for constructive discharge based upon a "sexually hostile atmosphere", claiming that her supervisors repeatedly subjected her and other women to uninvited and offensive touching, lewd remarks, and discussion of women in offensive terms. No tangible job loss occurred, but the atmosphere was decidedly raunchy and offensive. Moreover, the plaintiff testified that she had not reported the problems because she had no idea that her supervisors were violating company policy by their actions, as the City had never distributed its sexual harassment policy to her or her supervisors. The supervisors likewise admitted that they had never seen sexual harassment policy.
The Supreme Court held that the conduct by Faragher's supervisors created a hostile environment, and that the facts made it clear that the City had no affirmative defense to prevent liability for the harassment, so the City automatically became liable for the acts of its supervisors in harassing Ms. Faragher. This was true because the City's sexual harassment policy had not been distributed to the employees or their supervisors (so no reasonable attempt had been made to prevent the harassment), as well as the fact that the policy itself would have been deficient even if distributed, because it required complaints to be registered with the supervisor without providing any escape route where the supervisor was the offending party (so it would not have helped Ms. Faragher in any event).
Although these Supreme Court decisions are important when assessing sexual harassment claims (especially cases involving only claimed offensive language) and when designing preventive policies, it is important not to lose sight of the basic elements of any harassment claim. It remains necessary for the plaintiff to show that conduct occurred which was objectively offensive; that the plaintiff actually was offended; that the conduct materially affected the working conditions (although the standard of what is material seems to have become less strict over time, as society becomes less tolerant of workplace lechers); and that the harassment either was carried out by a supervisor (so that the company may be automatically liable if no complaint procedure existed) or that the harassment of a coworker was condoned by a supervisor (i.e., that the company knew of the harassment and did nothing). See, e.g., Rorie v. United Parcel Serv., Inc., 151 F.3d 757, 761 (8th Cir. 1998) (plaintiff "must show both that the offending conduct created an objectively hostile environment and that she subjectively perceived her working conditions as abusive").
The EEOC takes the position that the basic rules set forth by the Supreme Court in Faragher and Ellerth to determine corporate liability for claims of sexual harassment also should apply to other types of harassment. Hence, companies should consider adopting broad policies which prohibit any type of workplace harassment, and which provide complaint procedures to resolve such issues. A sample EEO Policy, together with a Problem Resolution Procedure, is attached which illustrate ways to address the resolution of issues of harassment by coworkers, supervisors and outsiders.
However, adoption of these policies is only the first step in preventing liability for harassment. The company also must take steps to adequately investigate and correct incidents of harassment (as the courts will be quite willing to excuse the lack of a report by one employee after other coworkers have complained repeatedly, and nothing has been done to fix the problem).
Thus, when a complaint of harassment comes in, the company must always investigate the claim. Once the investigation is completed, the employee should be informed of the results of the investigation, and given the opportunity to appeal if the resolution is unsatisfactory.
Most importantly, the employee must be protected against retaliation. It is human nature for any person to resent a complaint about them, and to give the cold shoulder to someone who is trying to get them into trouble with the boss. Thus, it is not at all uncommon for a supervisor to "get even" with an employee over a silly complaint, which then sets the company up for a retaliation claim. In order to safeguard against retaliation, the company will want to monitor any job actions with respect to the complaining party for at least one year. The supervisor also should be warned about avoiding the temptation to react badly to complaints, and reassured that monitoring is routinely done for the protection of everyone.
Many younger workers have serious misconceptions about what constitutes "harassment" - and believe, for example that a simple request by a supervisor in a different department for a date is illegal or that use of any curse words in the office is illegal. As a result, it is not uncommon to receive complaints which are unfounded, and to resolve them with minor "investigations."
However, on occasion, an employee will report significant harassment. The very nature of harassment (especially sexually-oriented harassment) is that it is often carried out in private, so that you are faced with a swearing match. It is not a bad idea to consult counsel when investigating such claims, especially if the employee is making threats of litigation. In conducting an investigation of a claim of harassment, the following evidentiary rules may be helpful in assessing the claims of each person.
The first hurdle which any plaintiff must clear in proving a harassment claim is that the someone (usually a fellow employee) actually engaged in conduct which was offensive. In the absence of other witnesses, the plaintiff may be left with a typical swearing match. However, there is a host of circumstantial evidence which may be admissible to either buttress or rebut the claims of the plaintiff.
As the Supreme Court held in Vinson, the absence of reports to management regarding the misconduct is a relevant factor (albeit not conclusive) in determining whether the plaintiff found the alleged conduct to be objectionable. The weight to be given to this factor depends upon such factors as whether the company had a grievance procedure addressing sexual harassment specifically, and whether the grievance procedure gave the potential victim an effective avenue to complain about the alleged harassment. Id. at 40 FEP 1829.
It logically follows that, where there is an adequate grievance procedure available which is not used by the plaintiff, there is an increased likelihood that the conduct either never occurred or was not unwelcome. Therefore, it necessarily follows that evidence regarding the absence of any complaint to management should be admissible under Rule 401 of the Federal Rules of Evidence, both as to whether the conduct occurred and also whether the conduct was unwelcome.
Where a plaintiff actively complains to management regarding the conduct of an alleged harasser, that complaint may be admissible by the plaintiff under several theories. First, depending upon the timing of the complaint, it may qualify as an excited utterance exception to the hearsay rule (Rule 803(2), Fed. Rules of Evidence). Similarly, such statements may fall within a statement of the then existing mental state of the plaintiff (Rule 803 (3), Fed.R.Evid.). If statements are made in written report to management shortly after the occurrence, such may fall within the recorded recollection exception to the hearsay rule (Rule 803 (5)). Finally, of course, such evidence would be admissible to establish employer liability for the actions of the alleged harasser.
Furthermore, to the extent that the report by the plaintiff is inconsistent with the report later given in depositions or at trial, the defendant may use the prior statement for the purposes of impeachment of the witness, pursuant to Rule 613 (Fed. R. Evid.). Similarly, if the report is excessively tardy or closely follows some disciplinary action against the plaintiff, evidence of such circumstances properly would be admissible both as evidence that the report was false and that the plaintiff had a motive to fabricate the report (such as retaliation for an adverse personnel action).
The plaintiff likely will be able to admit statements made to coworkers or others only in circumstances where the statements would qualify either as an "excited utterance" or where the statement was sufficiently contemporaneous with the incident to reflect a "present sense impression" of her mental state (Rule 803 (2),(3), Fed. R. Evid.). However, prior consistent statements by the plaintiff generally are not admissible, although an exception may arise if the defense suggests that the witness fabricated the story and she made a prior consistent statement before there would have been any motive to fabricate.
The defendant, on the other hand, is entitled to discover whether the plaintiff may have made any prior inconsistent statements or admissions against interest, as such may be admissible under Rule 806 or Rule 613, Fed. Rules of Evidence. Accordingly, the defendant would have broad latitude to inquire as to people with whom the plaintiff discussed the incidents; what was said; and when it was said. These individuals, in turn, may be questioned regarding the reports made by the plaintiff as to the incident.
Because the plaintiff has the burden of showing that the conduct at issue was "unwelcome", obviously one of the best ways in which to do this is to present testimony and other evidence which shows that an objection was registered to the alleged harasser. Additionally, the plaintiff may seek to introduce evidence such as written notes to the harasser objecting to the conduct; testimony of coworkers or customers who may have overheard a verbal objection, or may have been shown a written objection; or medical evidence of treatment for bruises, sprains or other contusions incurred (by either party) in fighting off an assault or psychological evidence of emotional distress suffered by the plaintiff from harassment.
The defense, by the same token, will attempt to show that no objection was registered by the plaintiff to the conduct in question (or was registered in an untimely fashion), as evidence that the conduct was not unwelcome at the time that it occurred. See Evans v. Mail Handlers, 32 FEP Cases 634 (D.D.C. 1983). In Vinson, the Supreme Court held that the proper focus of the inquiry was whether the plaintiff "by her conduct indicated that the alleged sexual advances were unwelcome". Id. at 40 FEP Cases 1827. Thus, the absence of objections is plainly admissible, although not conclusive (because the plaintiff may claim that she agreed to the harassment under duress, as did the plaintiff in Vinson).
Testimony of the plaintiff and others as to significant behavioral changes following the alleged abuse will often provide potent probative evidence that the plaintiff found the behavior by the alleged harasser to be unwelcome. Such evidence might include increased jumpiness; crying; vomiting; sleeplessness; nightmares; headaches; or other common symptoms of stress-related disorders. Often, where the plaintiff is in economic straits (and, thus, sees no alternative but to endure the abuse in order to meet other obligations), evidence of adverse psychological reactions to the abuse may be the only evidence which is available to show that the plaintiff submitted to sexual advances under duress.
In those cases where there has been an actual sexual assault on the plaintiff, psychological testimony may be admissible to show that the victim demonstrated a series of behaviors which are commonly shown by victims of such assaults. While the author could find no reported cases in which such evidence has been admitted in sexual harassment cases, such evidence has been successfully admitted in cases of domestic violence. This is a two-edged sword. If such evidence is admissible to prove the existence of an assault, such evidence also might be admissible to show that no assault took place in cases where the plaintiff fails to show such symptoms.
In Vinson, the Supreme Court noted that the EEOC Guidelines on Sexual Harassment required that the facts be evaluated in light of "the record as a whole", including "the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred". Id. at 40 FEP Cases 1828. The Court went on to hold that prior conduct of the plaintiff (such as sexually provocative speech or dress) was relevant as to the issue of whether a reasonable person would have known that the conduct was unwelcome. The Court further held that "publicly expressed sexual fantasies" of the plaintiff were also admissible in the discretion of the trial court, in making the determination as to whether the plaintiff found the conduct unwelcome.
Given the above holdings in Vinson, prior conduct of a sexual nature by the plaintiff in the workplace (including sexual speech, inappropriately "sexy" clothing, sexual gestures and the like - as well as the responses made by the plaintiff to such actions by others) is both discoverable and admissible on the issue of the state of mind of the plaintiff. See, e.g., Gan v. Kaypro Systems, Inc., 28 FEP Cases 639 (EDMo. 1982) (proof that plaintiff discussed her own sex life, freely talked about the sex lives of others, compared herself to pictures of other women in "girlie" magazines, and talked often about sexual matters was relevant to the issues of provocation, as well as whether she truly found such conduct to be offensive). In addition, to the extent that the alleged harasser was aware of the plaintiff's conduct towards other coworkers, such evidence may also be admissible to show that the harasser believed that his conduct would not be offensive. For instance, in Swentek v. U.S. Air, 830 F.2d 552 (4th Cir. 1987), various ribald acts of the plaintiff (including grabbing the genitals of one pilot and issuing a frank sexual invitation to him; putting a dildo in her supervisor's mailbox; constant remarks about sex; and numerous other vulgar acts) were held to be relevant in assessing whether another male was justified in believing that the Plaintiff also would be receptive to his sexual overtures.
Certainly, in light of Vinson, prior conduct by the plaintiff which occurs off-premises and involves interaction with the alleged harasser is plainly relevant to the issue of the state of mind of both parties. Furthermore, where the emotional state of the plaintiff is at issue, evidence regarding other reasons for the alleged emotional distress is admissible. By the same token, evidence that the plaintiff acted inconsistently with her claims of harassment may be admissible to show that she was not unduly offended by the actions of the alleged harasser.
Where it is alleged that the plaintiff has some pertinent character trait which is relevant to the determination of whether the event actually occurred or was unwelcome, it is likely that such evidence will be admissible under Rule 404 (a)(2). Similarly, if it were shown that this same individual had been sexually assaulted as a child, and had a history of imagining sexual assaults and/or overreacting to trivial actions, it would seem that this particular background evidence could be highly relevant in determining the credibility of her story.
However, access by the defense to the psychological records of the plaintiff may turn upon the express or implied waiver of any psychotherapist-patient privilege. Thus, in advance of seeking such information from doctors who have treated the plaintiff, the defense may be required to seek information regarding pre-existing psychological problems directly from the plaintiff or relatives, and, if evidence of pertinent psychological problems is discovered, to seek an independent psychological exam by a retained expert.
It is apparent that the Courts will refuse to allow general prying into the sex life of a plaintiff, or into the identity of her sexual partners, without a good reason being shown for this invasion of privacy. See Priest v. Rotary, 634 F.Supp. 571 (NDCal. 1986). As in the case of rape victims, the courts are justifiably concerned that spurious and unnecessary inquiries into the sex lives of victims of sexual harassment may chill such complaints. The burden rests with the defense (as the party seeking the discovery) to show why a particular inquiry is relevant to a particular defense theory, and why the potential relevance of the information outweighs the embarrassment and humiliation of the plaintiff in having her privacy invaded by the inquiry. However, admissibility of prior sexual history will always depend upon the purpose for which it is being admitted. Thus, in Henson v. City of Dundee, 682 F. 2d 897 (11th Cir. 1982), evidence was admitted regarding an intimate relationship between the plaintiff and a coworker for the purpose of showing that she quit as a result of unhappiness over his termination rather than because of any objection to sexual harassment.
Most commentators agree that an essential element of a claim for unlawful harassment is that the alleged harasser directed his conduct towards plaintiff because of protected group status (such as gender). See, e.g., Shulman, The Law of Equal Employment Opportunity, Warren, Gorham & Lamont, Inc. (1990). Thus, the interesting question arises as to whether actionable harassment occurs when a foul-mouthed and foul-tempered individual is equally horrid to all employees. The 6th Circuit had just such a case, where a supervisor referred to women in sexually-explicit terms, but referred to males by equally-vulgar terms. Although obviously offensive and highly unprofessional, his conduct was held not to constitute sex bias under the circumstances. Rabidue v. Osceola Refining Co., 805 F.2d 611 (6th Cir. 1986). Similar cases have arisen where a bisexual supervisor harasses both sexes equally, with similar results.
However, in most cases, however, the nature of the epithet or comment allows the underlying motive for the conduct to be assessed more readily (e.g., a heterosexual male who asks a women for a date is presumed to be considering her gender in making his overtures). Similarly, a comment about the race or religion or ethnicity of a particular individual permits an inference that the comment was based upon the specified characteristic (although this does not automatically mean that offense was meant, as such comments sometimes can be made between friends without any harmful motive).
However, it is not enough that the conduct was offensive and based upon protected status. Especially when dealing with harassment by coworkers, the plaintiff also must show that the harasser knew or should have known that the conduct would be offensive. Of course, where the conduct exceeds all normal bounds of propriety, intent to harass will be presumed.
Many courts already appear to use certain presumptions in deciding whether conduct was intentional gender abuse. Thus, where actual quid pro quo sexual favors are sought, the courts appear to correctly presume that invitations to become a prostitute in order to stay on the job are always offensive as a matter of public policy. See, e.g., Phillips v. Smalley Maintenance Services, 711 F.2d 1524 (11th Cir. 1983). Furthermore, any physical touching which has sexual connotations appears to be presumptively deemed intentionally offensive in the absence of proof that the circumstances were such that the plaintiff can be said to have invited or provoked such conduct. On the other hand, isolated verbal invitations to date (including implications that this might result in sexual activity) usually are not considered intentionally offensive, even if unwelcome, if they are not explicitly tied to job security. However, they may be considered intentionally offensive depending upon the context and frequency of the invitations (and, of course, are automatically unlawful if there is some retaliatory job detriment due to rejection of such advances). Compare Scott v. Sear, Roebuck & Co., 798 F. 2d 210 (7th Cir. 1986) with Bundy v. Jackson, supra. Simple discussion of sexual matters in the workplace normally appears to be presumptively inoffensive in the absence of objection, or where ceased promptly upon such objection.
Just as prior conduct of the plaintiff may be admissible in order to show state of mind, or to show that the alleged harasser innocently could have believed that his actions would not be unwelcome, so can the prior conduct of the alleged harasser be used by a plaintiff to show an intent or plan by the alleged harasser to abuse the plaintiff or other coworkers
because of their sex. Bundy v. Jackson, 641 F.2d 934 (DC Cir. 1981). In addition to offering evidence regarding such conduct for the purpose of showing the intent or plan of the harasser, such evidence also may be introduced for the purpose of showing that the employer knew or should have known that the abuse was going on, with the result that the employer should be held liable for the actions of the alleged harasser.
Evidence of actions by the harasser towards other females in the office also can be introduced to impute an intent to create a hostile work environment. In addition, actions of the alleged harasser towards other women outside the workplace (including the alleged harasser's propensity towards other sexual conquests) may be admissible to show his intent to engage in numerous seductions and/or his proclivity to engage in such activities. However, because Rule 404 generally forbids the admission of character evidence regarding the accused to show that he acted in conformity with his general character (except where the accused affirmatively has placed his character at issue), it is doubtful that general sexual history of the alleged harasser outside the workforce will be admissible under one of the exceptions to Rule 404 (unless there is some unusual perversion involved which might have a bearing on credibility).
In a hostile work environment case, evidence may be introduced as to the actions of other supervisors in the same work area towards other female employees, for the purpose of showing the pervasiveness of the misconduct and hence its presumptive effect on the working conditions of the female employees. Such evidence also may be admissible to show that the employer knew or should have known of the unreasonable working conditions and/or that the employer failed to take reasonable steps to correct the problems after it became aware of them.
However, in an individual claim by an individual plaintiff alleging quid pro quo sexual advances, it is doubtful that such evidence would be relevant in determining whether a particular supervisor had harassed a particular employee - at least where the supervisors were on the same level.
In order to prove notice to the employer, the plaintiff may introduce evidence of her own complaints to management regarding the misconduct of the alleged harassers. See, e.g., Bundy v. Jackson, supra; Kyriazi v. Western Electric Co., 13 FEP Cases 1346 (DNJ 1978). In addition, the plaintiff may introduce evidence of earlier complaints by other employees regarding the actions by the alleged harasser, in order to show that the company did not take appropriate steps to end the harassment. See, e.g, Paroline v. Unisys Corp., 879 F. 2d 100 (4th Cir. 1989). In the case of pervasive harassment, the plaintiff may introduce evidence that the alleged harassment was so pervasive that knowledge of the harassment and presumptive discriminatory intent can be imputed to the employer. Shrout v. The Black Clawson Co., 689 F.Supp. 774 (SD Ohio 1988).
The defendant is entitled to introduce evidence that it threatened the alleged harassers with discharge after the plaintiff complained, or took other disciplinary action, which is relevant to whether their actions were ultra vires. Similarly, the defendant may introduce evidence that the complaints made by the plaintiff were insufficient to warrant the taking of any disciplinary action. See, e.g., Highlander v. KFC National Management Co., 805 F.2d 644 (6th Cir. 1986) (where plaintiff made light of the comment at the time, and requested no further action, this may be used to show the response by the company was appropriate). However, the safer course is to conduct an investigation whenever any report of harassment is received, or at the minimum to send a note to the complainant (if they want to try to resolve the situation privately before formally complaining) to leave the door open for a formal complaint. It is also wise to check back later (and to document that this has been done) to see if the situation has been resolved. These notes can be invaluable if suit is filed later.
In most cases, the answer is "no." The only exception might be where the alleged harasser is in a position where he greatly outranks the investigator (e.g., a company officer). In these situations, it may be best for the investigation to be done at the direction of the Chairman of the Board (or Chair of the Audit Committee, depending on the structure of the Board), with outside counsel who will report back to the Board. Often, if the outside law firm has close and longstanding ties to the officer, it will be preferable to use another law firm to conduct the investigation so that inadvertent offense is avoided.
In normal situations, however, the investigation can be handled in-house by HR staff members, or by regular outside counsel. While there is always some fear that the use of regular outside counsel will disqualify them from serving as trial counsel, this is something which is likely to happen only if there is a huge swearing match which cannot be resolved without taking sides (so that it is plain that the company will need to have strong evidence to show that its decisions on who to believe were made validly with a proper investigation - which means that it will need an expert investigation by someone who can testify without breaching attorney-client privilege). In those cases, this will be obvious quickly from an interview of the plaintiff and the accused, at which point other counsel can be hired to take over the investigation.
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