I don’t know Aziz Ansari and I can’t purport to know what happened in his apartment on the night of the first date that has headlined the news this week. But, after 17 years as a labor & employment attorney, with a concentration in counseling on more than 100 sexual harassment claims in the workplace, I thought I would add a few nuggets to the conversation.
The claims against Ansari invoke the stickiest of scenarios, though they did not occur in the workplace. An anonymous complainant, a consensual sexual encounter, the allure of a suitor with “power”, regret, and poor communication…Translating these factors into a workplace investigation can cause some pitfalls for even the best HR departments.
- A significant percentage of complainants want to remain anonymous, presumably for fear of retaliation. While employers should not guarantee that any aspect of the investigation will be kept confidential, employers should limit details on a need-to-know basis.
- Confronting an alleged harasser when an employer can’t or chooses not to disclose the identity of the complainant or details of the complaint is really tough. Accused employees want to be able to appropriately defend themselves and California requires a “fair, prompt and thorough” investigation.
- Because employers have to balance the investigation with the need to maintain a harassment-free workplace, employers aren’t required to know with absolute certainty that harassment occurred in order to take disciplinary action. The legal standard is an objectively reasonable belief that misconduct occurred (after a fair and objective investigation, which I’ll get to in a moment).
- While the standard for an adequate investigation includes notice of the claimed misconduct and a chance for the employee to respond, this standard was set before the ubiquity of texts, and sometimes I see some really blatant and incriminating texts which make it easier for an employer to take action.
- Once action is taken, the type of response an employer needs to give to the complainant is another source of disagreement. Complainants want details about all aspects of the investigation, including who said what. Yet employers want to safeguard not only the complainant’s rights, but the privacy rights of the accused and witnesses. A typical response you may have seen is that the matter has been handled and appropriate action has been taken. Employers aren’t required to give details and if too many details are given, an accused may claim defamation.
- Finally, harassment policies need to have specific information on prohibited conduct, reporting and investigation procedures, and no-retaliation. Consensual relationships between supervisors and staff they manage should be prohibited to avoid the potential for coercion claims. I have seen many cases where a complainant contends they engaged in the sexual conduct consensually, but because they felt pressured to do so or it was “easier” than saying no. It’s best to remove the power/control element of a workplace relationship.
There are no easy answers here and every single complaint of harassment is unique. But in the effort to support victims, employers should not forget the reasonableness standards set by our courts and the balancing acts that need to occur during the course of an investigation.