By: Jonathan Landesman
I’m a management-side labor and employment lawyer. It’s my job to go to court and defend employers and executives accused of all different types of misconduct, including sexual harassment. Over the last 20 years, I’ve seen it all. Some of my cases involve relatively tame allegations, like telling dirty jokes around the watercooler, and I’ve also been involved with cases involving extremely serious accusations, including indecent exposure, unwanted touching, and sexual assault. I spent a fair amount of time watching the Kavanaugh hearings. Like everyone else I know, I have a strong opinion on whether or not the nomination should have been approved, but I did not write this article to share my personal opinions, there are enough political commentators on cable news shows who did that already. From an employment litigation and human resources perspective, there are several important lessons to be learned.
Lesson No. 1 – Who should conduct your workplace investigation?
The Senate Judiciary Committee spent a lot of time debating the issue of whether the FBI should have been called upon to conduct an investigation. After all, FBI agents are supposed to be experts when it comes to interviewing witnesses and gathering facts, and they are presumed to be independent and neutral. Maybe your company has a human resources department that is well equipped to investigate garden variety allegations of workplace misconduct. But are they professional investigators? When allegations are particularly severe or when they involve the highest levels of management in your company, regardless of the depth of your human resources department, you should consider engaging outside counsel or a consulting firm to take the lead on your internal investigation. Don’t be penny-wise and dollar-foolish. If you find yourself unlucky enough to be the defendant in a sexual harassment trial, even if the plaintiff is able to convince a jury that they were the victim of a hostile work environment, you may still be able to win your case if you can show that you took the complaint seriously and engaged a reputable investigator.
Lesson No. 2 – There is no such thing as a “confidential” complaint.
As you may remember from her testimony, Dr. Ford sent a confidential letter to Senator Feinstein describing her allegations against Judge Kavanaugh. Senator Feinstein said that she was respecting Dr. Ford’s wishes by keeping the letter secret. You should not repeat that mistake. Whenever an employee comes forward to you or a member of your management team with a complaint of workplace harassment, it is incumbent upon the company to immediately launch a thorough investigation and then to implement corrective action to put an end to any inappropriate conduct. There are no exceptions. The law does not allow you to sit on your hands and do nothing after receiving a complaint merely because the complaining employee requested confidentiality. Of course, it should go without saying that all harassment complaints and investigations should be handled with the utmost discretion and that information should be shared strictly on a need-to-know basis.
Lesson No. 3 – If you find yourself in the witness chair, remain level-headed and use plain English.
When asked how she was able to remember events which took place 36 years ago, Dr. Ford gave a scientific explanation about encoding within the human brain, repeatedly using technical terms like “hippocampus.” Would Dr. Ford have been a better witness had she simply said that there are some things in life that a person never forgets? Whether I am preparing a witness for deposition or a jury trial, I always insist on avoiding unnecessary jargon. Remember, in order for you to be believable, you first need to be understood. And what about Judge Kavanaugh? Some criticized him for appearing too angry. When a witness is accused of any type of workplace misconduct, I always want him/her to remain calm and professional on the witness stand. In harassment cases, conventional wisdom and experience teach that an overly angry or emotional witness is an unconvincing witness. Thus, in many respects, both Dr. Ford and Judge Kavanaugh’s testimony provided examples of things to avoid on the witness stand.
Lesson No. 4 – Don’t underestimate the importance of documentation.
When faced with a “he said, she said” scenario with two diametrically opposing stories, who are we to believe? Whether my clients are dealing with a harassment allegation, a workplace violence incident, or some other type of employee investigation, I always tell them to document all of the facts in writing as quickly and thoroughly as possible. Depending upon the situation, this may include obtaining written statements from the accuser, the alleged perpetrator, and all of the relevant eyewitnesses. In my experience in the courtroom, employment cases are often won or lost on the strength of my client’s contemporaneous documentation.
Regardless of your opinions on Judge Kavanaugh and Dr. Ford and their testimony, we can all agree that implementing appropriate workplace policies on harassment and providing training is only half the battle. What is often just as important when your case goes to court is how quickly and effectively you respond when receiving a complaint of harassment.