Most employers and managers understand what sexual harassment is.  In California, they’ve gone through the mandatory training (pdf).  So they know about hostile work enviroment and quid pro quo harassment.  ("Quid pro quo" being loosely translated as "No I won’t sleep with you to save my job.  You disgust me.  Now go away so I can call my lawyer.")

But California’s requirements for a sexual harassment investigation still seem to be a source of confusion.  The October 9, 2009 appellate court decision in Nazir v. United Airlines (pdf) highlights this issue.  (Faithful readers will note that Alex and I have both blogged about different aspects of this case already.  But there’s a lot in there and you should thank us for giving you the highlights so you don’t have to read through the 54-page opinion yourself.) 

In Nazir, the court criticized United for:

  • Failing to follow its own policies — The policies are there for a reason.  Use them.  Any irregularities allow plaintiffs and their attorneys to raise doubts as to whether this was a good faith investigation or a cover-up.
  • Delays in responding to complaints — Delays make it too easy for a plaintiff to argue that the employer doesn’t consider protecting employees from harassment to be a priority.
  • Failing to interview witnesses identified by the accused — To get any use out of an investigation, it needs to be thorough.

Other important rules for investigating harassment include:

  • Picking a qualified investigator — You want someone who’s far enough from the situation to be impartial and who has experience investigating these types of issues.  It also needs to be someone who understands how to question witnesses.  (Now the cynics out there may be thinking that I’m just saying that so people hire us to do their investigations.  To that I respond: 1)  If people follow these steps, there will be less harassment litigation, and therefore less work for me and my ilk; and 2) It’s not as if the goal of this blog is to repel clients.)   
  • Documenting every step — The most critical documentation will be written statements from key witnesses.  It minimizes the opportunity people have to change their stories.  And save every scrap of documentation.  If you dispose of anything expect to be questioned about what you were trying to hide. 
  • Evaluate the evidence objectively — The person complaining doesn’t have to prove his or her case beyond a reasonable doubt.  Even if it’s the proverbial "he said/she said," you need to decide who is more credible.
  • Take appropriate remedial action — If you conclude there was harassment, take actions reasonably calculated to stop it. 
  • Keep the complaining party informed — Let them know the status of the investigation, the conclusions, and the steps being taken.  Then when it’s all over, follow up with the complaining party periodically to make sure that there have been no further issues.
  • Don’t add a retaliation claim to your problems — Do nothing to the complaining party that could be viewed as punitive.  This includes transfers, reductions in hours, or anything else that penalizes or isolates them.

A prompt, thorough investigation can go along way to preventing a harassment claim.  A shoddy investigation can have the opposite effect.  As I’ve said before, harassment litigation is less about what the alleged harasser did than about how the company responded to the situation.  

Alex already wrote about some procedural issues in this case.  But there’s a lot here to blog about.  Here’s my list of some of the lessons from this October 9, 2009 California Appellate Court decision(pdf):

Lesson No. 1:  Appellate courts can be hostile to summary judgment motions in employment litigation.  The court here went so far to say that summary judgment is rarely appropriate in employment cases.  It expressed concern that the procedure was being abused in employment litigation, "especially by deep pocket defendants to overwhelm less well-funded litigants." How’s that for a generalization?  I don’t know the circumstances that compelled these attorneys to file 1056 pages of  moving papers and 1150 pages of reply papers.  But that’s not standard operating procedure for all defense counsel.  Plenty of us realize that the way to win these motions is to simplify the issues, not complicate them.

          Sub-Lesson No. 1(a):  If the court uses the adjective "deep pocket" in a case where you’re the defendant, count on those pockets getting lighter before the day is done.

Lesson No. 2:  If in the second paragraph of the opinion, the court says that your motion is "the poster child for such criticism" and "may well be the most oppressive motion ever presented to a superior court," you’re probably not going to like what they say in the other 52 pages. 

Lesson No. 3:  To win an employment case for the defense you need to succeed at multiple levels.  The employer here got a favorable ruling from the DFEH and then won on summary judgment.  Things were probably looking pretty bright until the appellate court issued this scathing decision.

Lesson No. 4:  It’s another bad sign for the employer defendant when the court, in describing the company’s response to the harassment, puts "investigation" in quotes.  Employment law cases are less about what happened to the plaintiff than how the company responded to the situation.  Some of the missteps the court railed against here were United failing to follow its own policies, delaying in addressing the issues, and not interviewing witnesses thought to have relevant information.  I don’t think many employers understand the detailed requirements California courts impose on investigations of complaints of harassment and similar misconduct.  Maybe that will be the topic of a future blog entry.