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The following article discusses session three in the IR Global Virtual Series on ' Workplace Investigations: Process and enforcement in the age of #MeToo
France – LP If
the facts are evident, then the victim must get protection from the employer,
in particular against retaliation. If the facts are not evident, they must
receive a letter of explanation about the outcome of the investigation, but the
employer will have to avoid any climate of suspicion by accompanying the
continuation of the work relationship.
With regard to the accused person, the employer has to carry
out disciplinary procedures and sanctions. Under French law, sexual harassment
automatically leads to a charge of gross misconduct, based on case law.
But getting back to the general obligation on employers to
ensure the employees safety and security, the employer has to prevent any
sexual harassment.
There are three types of prevention:
- Primary prevention involves training employees, staff
representatives and managers, putting in place policies and procedures and
promoting sexual equality. - Secondary prevention involves organising investigation and
protection measures when a case is revealed to the management. - Tertiary prevention means the provision of care to the
victim of sexual harassment, helping the victim to get back to their job
position. Both psychological care and professional care are important.
England – SS The
first consideration revolves around the findings of the investigation. Assuming
a positive finding against the alleged harasser, I think the very first thing
must always be for an employer to consider the welfare of the complainant and ensure
that the complainant is not victimised as a consequence of raising a concern.
The practical question then arises, as to what action is
appropriate against the person who has been found to have harassed the
complainant. In the employment context, in England, this usually leads to
disciplinary action, which can have a range of outcomes including gross
misconduct leading to a summary dismissal of the employee concerned.
If the matter is serious enough, there is always the option
of reporting the matter to the police. This is normally something that's best
left to the complainant to do, if that's what they want to do. There is also
the possibility of pursuing private action against the individual, but, again,
that's something for the victim to decide.
In short, the employer’s imperative is to make sure that
correct disciplinary action is taken in the event of a positive finding.
Nevada – LT In
the US, the general standard is that if harassment is determined to have
occurred, the employer has to take prompt action that's reasonably calculated
to prevent the harassment from occurring in the future. That standard is not
just as to the particular employees involved. It's supposed to be action that
should prevent it from happening against other employees in the future as well.
Of course, the employer response often depends on the severity of the incident.
In addition to taking disciplinary action, the employer might take other steps
such as providing additional workplace training on harassment reporting and
prevention.
In circumstances where the employer determines that no
harassment or discrimination has occurred and in situations where the employer
determines that something has happened, the employer always need to talk with
the employees involved, specifically the complainant and the accused. The
employer should tell them about the results about the results of the
investigation and whether you have confirmed or not confirmed harassment.
That's really important.
The other thing that comes up, is that sometimes the person
who is the complainant will try to dictate the employer’s response (for
example, demanding that the alleged harasser be fired, demoted, or
transferred). The employer is obligated to listen to the employees and take
their input on that, but it's ultimately the employer’s reasonable
determination to decide what action to take against a person found to have
committed harassment. Case law says the employees don't get to decide for the
employer how they respond. But that also, of course, can create situations
where the complaining party accuses the employer of not responding adequately,
which may lead to a lawsuit.
I would also say it is okay for employers to make
credibility determinations. Obviously these are ‘he said she said’ situations
sometimes, but if an investigator has a reasonable basis for determining
credibility then they should do it.
Sometimes employees will try to get access to written
findings from an investigation through the Nevada statute on access to
personnel records – Nev. Rev. Stat. 613.075.
There is, however, an exception in that statute that says
that employers are not required to disclose records from a confidential
investigation. Even if an employee says they want to see the report or witness
statements, employers are not required under Nevada law to provide those. We
counsel employers to keep the investigation documentation in a separate
confidential file outside of the personnel files. That's permitted under Nevada
law.
California – RT I
agree with Laura’s recommendations. It is important to note that there might be
a range of outcomes, depending on the severity of the conduct, assuming there
is a conclusive finding following investigation of a complaint against an employee.
In some cases, individual counselling, coaching or anger
management are offered to the person who engaged in inappropriate conduct. Such
a finding doesn't necessarily result in dismissal, depending on the severity of
the behaviour.
Dismissals are more common now than they were several years
ago. Employers more readily disassociate the company from inappropriate conduct
of employees to avoid the disapproval and adverse publicity of any workplace
culture condoning or supporting harassment. It is becoming more common for
employers to announce that an executive or official has been let go following
an investigation, a result that rarely occurred before #MeToo.
Fines or criminal prosecution are rare in California, except
in cases involving celebrities. Often those cases involve a business
relationship such as a film director or producer and not an employment
relationship.
In some cases, there could be an inconclusive result from an
investigation if impossible to determine, based on the evidence, whether
inappropriate conduct actually occurred. In those cases, the employer may
counsel the employees involved about the policy against harassment and remind
the individual accused of harassment not to engage in retaliation. Best
practices would involve monitoring the interaction of those employees more
closely going forward to ensure there was no retaliation or future incidents.
California recently adopted a law requiring universal
harassment training of all employees, applicable to employers with five or more
employees. The state legislature’s belief is that broader training will help
prevent harassment and encourage internal and agency complaints. Employers who
fail to train their employees regarding the prohibition against harassment, the
complaint process and the need for remedial action are likely to suffer more
costly liability from harassment lawsuits.
Germany – DSS
Once the investigation establishes a sexual harassment incident has taken
place, the employer must take all appropriate measures to eliminate any
repeated sexual harassment. That means, in the words of the law, taking any
suitable, necessary and appropriate measures to put a stop to harassment. In
practice, this may include a written warning, or the moving of the accused
employee to another team or another business. In the last resort, it would
involve dismissing the employee in question, either without notice or with
given notice.
Apart from that, there's no fine for the accused employee
other than in a criminal procedure. With regard to any liability of the
employer, they must smartly decide on how to deal with the accused employee,
because if there is a second incident between the affected employees, the
employer can be held liable.
Switzerland – MN
It would depend very much on the outcome of the investigation and how severe
the sexual harassment was.
If it is not a very severe case of sexual harassment, there
would be dialogue between the supervisor and the accused person about the
possible consequences followed by a reprimand. The victim might be referred to
an employee representative or external counselling, if support is needed.
In a similar fashion to Germany, the actions that the
employer can take against the harassing employee in more severe cases, include
a reprimand, a formal warning, relocation, ordinary termination or even
immediate dismissal. Whatever action the employer does take needs to be
proportionate and adequate considering the severity of the harassment.
In addition, the employer must also prove that they have
taken appropriate actions to prevent sexual harassment from happening again.
This will include the education of the other employees, with a clear message
that sexual harassment will not be tolerated, and what the consequences are.
It does not mean that in the case at hand the involved
persons need to be named. The victim and the wrongdoer also have the right to
be protected. In a criminal prosecution, the result could be a fine.
Netherlands – RJ
It is quite similar in The Netherlands. Once it has been established that there
was inappropriate behaviour or sexual harassment, any measure that is imposed
must be adequate and proportional.
In the Netherlands the employer must make the assessment,
leveraging the interests of the victim and the company on the one hand and the
interests of the accused person on the other.
This is important, because courts often take into
consideration other circumstances that are not directly related to the
harassment case, such as an accused employee’s very long history with the
company, or their performance record. We hear a lot of voices in literature,
especially in the Netherlands, that encourage courts to not take those
circumstances into consideration when dealing with court cases relating to
sexual harassment.
The law does not state what appropriate or adequate
disciplinary measures are, but we have seen that the government sees potential
measures like informal warnings or formal warnings or suspension as necessary. The
imposition of a fine would require an agreement in the contract to that effect.
In such an instance, an employee would agree to pay a certain penalty in case
of breach of certain clauses in their contract.
Instant dismissal is the most severe legal option provided
by Dutch law to terminate an employment contract.
In the Netherlands, we have something that is known as the
closed dismissal system, where the law allows for a certain limited number of
ways to legally terminate an employment contract. We do not know the concept of
at-will employment, so, in practice, this means that you cannot fire an
employee against their will, unless there are extreme circumstances that create
a situation that the employer cannot continue the employment relationship and
the employer has an urgent reason to instantly terminate the employment
contract.
Once that decision has been made, it is assessed heavily by
courts, and commonly ruled as invalid. This creates a huge problem, because the
employee is then generally entitled to return to work.
The decision that is made by the employer in the end is
extremely important, because it also creates a precedent for future cases.
Precedent is something that is taken into consideration by the courts or the
employer’s disciplinary process in any future cases.
Minnesota – AR In
the United States, under the various federal, state, and local human rights
law, employers generally speaking are obligated to take timely and appropriate
action based on the outcome of the investigation of the sexual or other
harassment complaint or concerns. The nature of the recommended action taken
can vary widely and depends upon a number of factors including the severity of
the behaviour found to have occurred, the position of the individual who has engaged
in the behaviour, the particulars of the work environment, and other factors.
As an example, outcomes for less egregious behaviour might include, written
disciplinary action, and one-on-one coaching regarding workplace behaviour
and/or participation in a formal workplace harassment and related training
session(s).
More egregious behaviour may result in written disciplinary
action to include a demotion, removal of supervisory authority, or other
significant work consequences and required ongoing one-on-one coaching and
monitoring; or of course immediate termination of employment. Many employers,
as part of their overall risk management strategy, will use the results of each
investigation as an opportunity to evaluate the overall harassment prevention
strategies and determine, for instance, if additional employee discussion
forums on the topics are advisable, further training overall is needed of
management and staff on the topics, or if leadership or other organisational
changes might be needed or advisable in one or more areas of the company.
Even where the investigation was inconclusive, or the
conclusion is that no policy violation occurred, the investigation can be used
as an opportunity to remind individuals of their obligations under the company
code of conduct and policies, and to encourage individuals to come forward if
there are future concerns or questions. In addition, regardless of the outcome
of the investigation, companies should carefully plan the content of the
communication with the interested parties, including the individual(s) who
complained and those who participated in the investigation. Again, the manner
in which investigations are conducted and the communications related to the
investigations are valuable tools in promoting desired corporate culture and
preventing future harassment and inappropriate behaviour.
CONTRIBUTORS
Monika Naef (MN) DUFOUR – Advokatur – Switzerland www.irglobal.com/advisor/monika-naef
Anne Radolinski (AR) Fredrikson & Byron – U.S –
Minnesota www.irglobal.com/advisor/anne-m-radolinski
Rebecca Torrey (RT) Elkins Kalt Weintraub Reuben and
Gartside LLP – U.S – California www.irglobal.com/advisor/rebecca-torrey
Dr. Sebastian Schröder (DSS) AQUAN Rechtsanwälte – Germany www.aquan.com/lawyer-profiles/dr-sebastian-schroder/
Rachida el Johari (RJ) SAGIURE LEGAL® – Netherlands www.irglobal.com/advisor/rachida-el-johari
Lionel Paraire (LP) Galion – France www.irglobal.com/advisor/lionel-paraire
Shilpen Savani (SS) gunnercooke llp – England www.irglobal.com/advisor/shilpen-savani
Laura Thalacker (LT) Hartwell Thalacker, LTD. – U.S – Nevada
www.irglobal.com/advisor/laura-thalacker