SEXUAL HARASSMENT INVESTIGATIONS

On 105.1 FM, KKGO Los Angeles, Karl Gerber of the Employment Lawyers Group said the following about sexual harassment investigations:

Employers can really do to screw up a case if they don't properly investigate sexual harassment complaints. There's a lot of conflict in this for employers because if they do find sexual harassment, they do a good investigation, you know what? That is an admission something happened; there was sexual harassment. Well, that's a big problem, because they're going to lose the trial. There is going to probably be evidence coming the trial that sexual harassment was actually found. And, that's bad for the employer. They come up with a lot of ways to make sure these investigations are no good.

It might, however, be more due to incompetence, poor procedures, or a disbelief past employees are always angry at the employer, but in sexual harassment investigations must employer do not contact past employees. That's a problem. If past employers know about the sexual harassment, then they should be contacted.

PAST AND PRESENT EMPLOYEES MAY BE WITNESSES TO SEXUAL HARASSMENT

As soon I get a sexual harassment the case, I'm talking to past employees. I'm subpoenaing them, I'm getting their depositions. They're testifying there was sexual harassment which makes the employer look very bad if they didn't pursue witnesses during the sexual harassment investigation.

Employers also put too much stock in asking the sexual harassment victim, who do you think are the witnesses? And they only interview those people. Horrible idea. Most employees don't really know what a witness is. I know what a witness is because I'm a lawyer. I've done 2,000 cases. I've probably taken over 10,000 depositions of witnesses. Lay people don't really know whether someone is the right person to testify on an issue, and they do not know how to prove something. You don't ask lay people who are doing a job assembling parts, who the witnesses are going to be.

EVIDENTIARY ISSUES IN SEXUAL HARASSMENT INVESTIGATIONS

A big problem for employers in sexual harassment investigations are claims the investigator lost their notes on what the witness said. We also see cases where something is written on the notes saying about a witness interview saying they are illegible or unreliable. In a case last week there was an ex-employee who claimed she was sexually harassed and the sexual harassment investigator indicated she spoke to this person, but her notes do not say what the person said. There is just a notation that says, “Interview unreliable.” I think that was a cover up, the fact the woman said there was all kinds of sexual harassment, and she was sexually harassed, but there is just a vague note. That's fraud. Employers or their lawyers cannot create a false result, a false record secreting evidence. That can lead to punitive damages. Punitive damages involve fraudulent conduct. And that's just not the

way to go. Something like that can make the employer have the pay more, increase the chance of the employee winning another one. In a case I just had the employer say they could not corroborate the sexual harassment when my client complained. Now another woman complained about the same harasser and she complained during the same period of time. My client was complaining and then complained at the point my client was fired that month. If two women 20 years apart in age are both claiming this individual sexually harassed them, that is a problem for the employer to twice say there is no corroboration and not fire that individual. It is a very bad decision on the employer's part. I settled that case for more money than I think it was worth. I think the employer did a very bad job of the investigation and definitely should not be saying there was a lack of cooperation in the investigation.

When two women gave examples of what happened, my client testifying and another woman. I'll tell you, she was clear, she was explicit about the sexual harassment. It was very descriptive. And it did not seem like she could have possibly been making it up. And then the employer said, oh, well, these women must have been in cahoots. And when the employer started saying, everyone's in cahoots who has sued for sexual harassment. Come on. Big time conspiracy theories don't work either way. Hopefully my clients are not trying to tell me about big time conspiracy theories either. I think those are very hard to prove. It's hard enough to prove that somebody really wanted you fired, but they're not the one who made the decision. But, you know, some of these conspiracy theories are a lot more complicated than that. Karl Gerber can be reached at 661-412-9600