Written Testimony of Jane Kow Founder and Principal of HR Law Consultants

Meeting of January 14, 2015 - Workplace Harassment

I. Prevention of Workplace Harassment Through Education, Training and Outreach

A. Harassment in Social Media, Blogs and Text Messages: Applying Workplace Laws of the Old Millennia to the Workplace of the Present and Future

Last year, as the nation marked the 50^th Anniversary of Title VII of the 1964 Civil Rights Act, the groundbreaking, landmark employment civil rights act of our lifetime, the San Francisco District Office of the EEOC commemorated this event by asking presenters at its regional TAPS conference for employers to incorporate this historical theme into each of our presentations. As one of the few management-side attorneys who is consistently asked to present at this program, I decided that instead of looking retrospectively at the progress we've made in the past half century, I would instead focus my presentation on the workplace of the future and how employers should respond to complaints of harassment that have occurred via text messaging and social media postings.

In this last decade of rapid technological advancements, those of us who specialize in advising, training and investigating employers have been called upon to help our clients navigate their obligations under age-old workplace laws that were enacted before the advent of email, text messaging and social media.[1] This sea change has transformed how companies communicate and engage internally and with customers and others, how managers communicate and engage with employees, and how employees communicate and engage with one another. Indeed, studies have shown that 90% of all businesses now use social media for business purposes, up to 64% have policies in place that safeguard against harassment in social media, and 70% report that they have taken disciplinary action against employees for misuse of social media in the workplace.[2]

The ease and speed of posting or responding to the proliferation of messages and images on social media- sometimes by employees at the 11^th hour, right before bed, in 140 characters or less, and oftentimes without aforethought- has spawned employee complaints of harassment, defamation, violation of a right to privacy and a host of other claims. None of this was even imaginable in 1964 when Title VII was enacted (or in 1991 when it was amended). But employers must now interpret an EEOC guidance that was written and cases that were decided by courts in the old millennia to determine how to apply these rules to regulate conduct in the new workplace of the present and future, transformed by these technological advances.

Employers are now grappling with how to lawfully regulate employees' text messages, blogs, and social media activity in the face of potential complaints from co-workers about harassing comments posted or images shared publicly. This has resulted in substantial settlements in some high profile cases. In a case that began with sexually charged text messages from an Assistant Store Manager to a sales associate, national retailer Fry's Electronics ultimately agreed to pay $2.3 million to settle and implement preventative measures. Via text messages, the manager commented on the employee's body and invited her to his home for drinks even though she was underage at the time. This went on for months, after she had asked him stop. The employee reported the harassment to her direct supervisor, who in turn, reported it to the legal department, but no investigation was ever conducted. Instead, her direct supervisor was admonished about focusing on his own job instead of intermeddling and then fired for poor performance, despite being a top seller. After the complainant was fired, the EEOC filed a lawsuit on behalf of both employees and obtained one of the highest settlements ever on a per-claimant basis.[3]

Employee blogs can also potentially create a space for employees to engage in harassment. In Espinoza v. County of Orange, No. G043067 2012 WL 420149 (Cal. Ct. App. Feb. 9, 2012), an employee who was born without fingers or a thumb on one of his hands was repeatedly taunted about his "claw" hand by co-workers on a blog using work computers. C-workers scrawled images of a claw on his electric utility cart, threatened him with bodily harm, mocked and mimicked him for concealing his hand in his pocket, and subjected him to other degrading comments for having a "claw" hand. The blog postings filled 220 pages and went on for months. Even after upper management knew about it and had a list of suspected culprits, they merely sent out an email to employees suggesting that they "help stop the nonsense" and "let the blog be put to rest," but never bothered to interview the employees who were suspected of posting these comments on the blog. Based on the employer's failure to take appropriate corrective action to investigate, curtail the blog postings and punish the culprits, the jury awarded him $820,000 in damages. On appeal, the court upheld the award, noting that there was clear evidence of threatening harassing comments and conduct aimed at the employee's disability sufficient to create a hostile work environment.

In the social media space, employers must decide whether these images, messages or "likes" posted on employees' personal accounts outside of the workplace are "severe and pervasive" enough to alter the working conditions within the workplace. Courts are beginning to grapple with this issue and at least one District Court in Puerto Rico in Amira-Jabbar v. Travel Services, Inc., 726 F.Supp.2d 77 (D.P.R. 2010), has found that an employer took prompt effective remedial action to prevent reoccurrence of a racially offensive comment posted on Facebook by a co-worker in response to a plaintiff's comments about the color of her own skin, which appeared beneath a photo posted by another co-worker. As soon as the employee complained of a racially hostile work environment based on this and two other incidents that did not involve any other Facebook postings, the employer promptly investigated and then blocked everyone's ability to access Facebook on all work computers. Since the three episodes of alleged harassment were isolated incidents involving offhand comments that were not condoned by the employer and the employer responded promptly and appropriately to her complaint by investigating and taking corrective action, the employer escaped liability.

The results of these cases show that an employer may be able to avoid liability for employees' harassing posts, whether they appear in text messages, on a blog or Facebook, if it takes prompt and effective corrective action to curtail the activity by investigating the claims and blocking employee access to the site from work computers. However, would this truly be feasible if the company is a social media company or where the employees' day to day responsibilities include promoting the company's products, services or causes on Facebook or other social media outlets? Apart from disciplining the employees who engaged in the harassment and curtailing access to social media from work computers, what other remedial measures could the employer take?

There are other potential scenarios that have yet to be decided by courts such as where a female employee who is Facebook friends with her male co-workers posts a picture of herself in a bikini on the beach while on vacation, and a male co-worker posts a comment about how "hot and sexy" she looks and several others "like" the photo and/or the comment, and post other sexually suggestive comments, what is the employer's obligation when she complains she is uncomfortable returning to work? In other words, how many "likes" from co-workers will it take to create a "hostile work environment"? Besides having a written policy, what else should employers do to curtail such activity, when it cannot ask employees for their passwords or review their postings in states like California that have enacted laws restraining employers from doing so?[4] What kind of corrective action would be appropriate to prevent reoccurrence when employees believe that they have an inherent property right to use their own social media accounts as they please, and any restriction imposed by the employer could potentially trigger an unfair labor practice charge with the National Labor Relations Board (NLRB)? Employers must tread carefully to ensure that their decisions do not come into the crosshairs of the NLRB, given a recent Advice Memorandum limiting an employer's ability under Section 7 of the National Labor Relations Act (NLRA) to regulate an employee's social media activity, even where the postings contain sexually offensive comments.[5]

In a few recent cases, employees claiming sexual harassment have been ordered to turn over their entire social media profiles, Facebook activity records and passwords, when the employer claimed that employees put their emotional state at issue in the lawsuit,[6] or such information was relevant to prove their motivation in bringing the lawsuit.[7] Thus, education and outreach about employees' rights and employers' obligations in this area would benefit both parties.

In short, regulating employee harassment on social media is an area that is fraught with traps for unwary employers who are often left to their own resources, relying on what they read on the internet to navigate this new terrain, with few written rules as of yet. It is an area that is just ripe for the EEOC to step in and provide some guidance for both employers and employees. In particular, employers seek guidance on how to investigate these situations and implement corrective action.

B. Preventing Workplace Harassment of Employees with Disabilities Through Education on the Rights of Employees and the Duty of Employers to Provide Reasonable Accommodations

California law mandates that companies with 50 or more employees and contractors provide at least 2 hours of sexual harassment prevention training for their supervisors, once every two years. However, there is no similarly required training on how to prevent harassment on the basis of disability-despite a 75% increase in claims in this area in recent years.[8] Given the spike in the number of workplace disability claims filed and the substantial sums recovered by employees in the past decade, this is an area that warrants increased training and guidance for employers.[9]

Several times each year for the past decade or so, I have been called upon by employer and HR groups, bar organizations, and private and public sector employers to provide workplace disability accommodations training. I have travelled throughout the state of California to provide this training to California Department of Rehabilitation employees, county mental health agencies, non-profit agencies, employee advocates and job coaches, employee relations representatives and human resources managers, risk managers and workers' compensation specialists. There is a definite need for training and guidance on employers' obligations to employees with disabilities in order to minimize the risk of harassment by co-workers who may resent the "special treatment" of the employee with a medical condition who needs an accommodation, as well as harassment by supervisors who lack an understanding of how to ensure that accommodations are provided without repercussions to the employee who requests them.

In one of the first circuit court of appeal cases to recognize a cause of action for disability harassment, Fox v. General Motors Corp., 247 F.3d 169 (4^th Cir. 2001), an employee who had sustained back injuries and required modified light duty work was asked by his foreman to perform tasks that he was unable to do because of his injury. When the employee refused, his foreman and co-workers began to use profanity and verbally abuse him along with other employees with disabilities, referring to them as "hospital people" and "handicapped," among other pejorative terms-treating them "like they had a disease." The foreman segregated these workers with disabilities from others, and he instructed other employees to ostracize them. He eventually made the employee work in a hazardous area at a table that was too low, which aggravated his back injury. The foreman also refused to allow the employee to take the physical exam that was required to apply for a truck driver position, which he was otherwise qualified for and met his medical restrictions. After suffering depression and anxiety as a result of this mistreatment, which worsened his physical condition, the employee sued for discrimination and a hostile work environment under the ADA. The Fourth Circuit held that the harassment suffered by the employee was directly attributable to his medical condition, which was sufficiently severe and pervasive to constitute a hostile work environment.[10]

In Spencer v. Wal-Mart Stores, Inc., 2005 WL 697988 (D. Del. March 2005), an employee with a hearing impairment was yelled at by her supervisor for requesting a sign language interpreter. Her supervisor and co-workers were hostile towards her when she asked questions or tried to teach other employees simple signs to help them communicate with her. Instead, her supervisor called her stupid, refused to write notes to aid in communication and twice, a co-worker held up her middle finger and asked the employee what it meant. Ultimately, the court affirmed the jury's award of $12,000 damages for emotional distress based on the employer's failure to accommodate and the hostile work environment suffered by the employee.

These cases and others like it, underscore the need for training of managers, supervisors, and co-workers alike about the repercussions when mistreating employees with disabilities, as well as the company's obligation to provide reasonable accommodations.

In many cases, untrained managers assume that in order to safeguard against discrimination or harassment claims, all employees should be treated the same and no one should be given any special treatment. However, it is important to emphasize that the employer must sometimes treat an individual with a disability differently than all others when taking into account that person's medical condition, work-related limitations, functional capabilities, and essential job functions. In other words, this is a particularized, fact-specific approach to reasonable accommodations that compels employers to treat employees with disabilities differently based on the foregoing factors-this is not discrimination, favoritism or "special treatment," but a legally required reasonable accommodation. It is the inverse of what we have come to understand as equal treatment (i.e., treating everyone the same) and discrimination (i.e., treating people differently) based on an employee's protected class.

Co-workers who do not receive any training in this area might also express resentment by charging that this is favoritism towards the employee with a disability, who because of the effects of medication, might be allowed to come in later than everyone else or telecommute as an accommodation. Co-workers might wonder why the employee with a disability is not being held to the same attendance standards as everyone else. Training for the workforce must reinforce that an accommodation provided for an employee with a disability is not special treatment; rather, the employee has a right to telecommute or an adjustment in the work schedule to enable performance of essential job functions, unless it would result in an undue hardship.[11] These themes ought to be a part of the workforce training for all employees in much the same way that employers provide sexual harassment prevention training for everyone, and would go a long way towards minimizing claims of harassment by co-workers and retaliation by managers who lack an understanding of the extent to which employees who have a right to request and receive reasonable accommodations.

Further, employers are often concerned about how costly it will be to implement accommodations for an employee with a disability and how this would impact their bottom line. However, study results show that the average cost of an accommodation is only between $500-$600, and a variety of options do not even cost a dime (e.g., altering a work schedule, eliminating non-essential job functions, changing the method in which a job function is performed, etc.).[12] Further, of those employers who have provided accommodations, three quarters of them report that they are very to extremely effective.[13]

Employers may lack an understanding of when their duty to engage in the interactive process is triggered and how to actually do so in order to determine reasonable and effective accommodations for an employee with a disability. It is important to help employers understand that there is no need for employees to use "magic words" such as "disability or "reasonable accommodation" to trigger the interactive process, and that it should be commenced once an employee puts the employer on notice of a disability and assistance in the form of an accommodation[14] (e.g., employee informs supervisor that he is seriously depressed and needs time off for treatment).

Much of the available resources and existing training on this topic has focused on expanded definitions of disability and the need to provide reasonable accommodations and consequences for not doing so, without outlining the steps to take in order to engage in the "interactive process" in good faith, without violating employees' right to privacy of their medical or genetic information. Perhaps this stems from a lack of guidance from the ADA regulations and with few exceptions, the courts, which more often than not have focused on addressing when employers have failed to provide accommodations, rather than on the adequacy of the interactive process itself.[15] Indeed, only by understanding how to engage in this process-the critical mechanism through which the employer learns of the employee's work related limitations and functional capabilities, can the employer learn what reasonable changes can be made in order to enable the employee to perform the essential functions of the job. Practical, easy to follow instructions that clearly delineate between the steps that the employer must take (e.g., questions they must ask about the employees work-related limitations) and what it must not do (e.g., unnecessarily probe into the employee's medical history) are often the most helpful way to convey this information to employers.

Another area where employers frequently seek training and guidance is the interplay between the various different laws that create a matrix of overlapping employer obligations under the various disability accommodations laws (the ADA, the Pregnancy Disability Act, etc.), medical leave laws (the FMLA and state law equivalents) and workers' compensation laws. Companies frequently have separate departments that handle an employee's request for reasonable accommodations (HR or ADA specialists), medical leaves (leave of absence coordinator), and the workers' compensation (risk management or claims representative). These separate compartmentalized silos within a company often must coordinate services and benefits, for example when an employee is injured at work, requires intermittent medical leaves, and then reasonable accommodations when he or she returns to work. More often than not, however, these separate, autonomous departments do not coordinate their efforts, resulting in the employee having to respond to the same or similar questions from different departments that are charged with administrating benefits, implementing accommodations, and administering leaves under different sets of laws. Without a more integrated approach to administering workers' compensation benefits, reasonable accommodations and medical leaves, employees who are subjected to the same or similar type of inquiries or requests for medical documentation from individuals in different departments, may perceive this to be a form of harassment.

Therefore, providing employers with training and clear guidelines on when their duty to accommodate is triggered, and how to respond to requests for accommodations in tandem with requests for medical leaves, would go a long way towards the prevention of harassment of employees with disabilities.

C. Educating HR Professionals With Step-By-Step Instructions On How to Conduct Effective Workplace Investigations

Employers generally understand that they need to investigate harassment complaints, but few actually know how to go about it. Indeed, workplace investigations have increasingly become the subject of scrutiny in employment lawsuits. Both sides call upon the investigator to testify and defend the thoroughness and objectivity of the investigation. Plaintiffs' attorneys will frequently seek to expose a poorly conducted investigation as evidence that the employer "looked the other way" and in essence, ratified the alleged harassment of an employee. Employers on the other hand, seek to rely on the results of a properly conducted investigation in order to assert a good faith defense and to shield themselves from liability.[16] Yet, few human resources and employee relations professionals who are charged with handling internal investigations ever receive the practical skills-based training they need in order to conduct such an investigation. Thus, there is a real need for this kind of training and guidance from the EEOC, which contains easy to follow, step-by-step instructions on how to conduct a proper investigation.

Over a decade ago, when I began down this path of performing workplace investigations, as well as developing and presenting training modules for employers in this area, there was a dearth of available practical, easy to follow skill-based training materials and programs on this topic. Since then, organizations such as the Society for Human Resources Management (SHRM) (and its local affiliates such as the Northern California Human Resources Association (NCHRA)), the Association of Workplace Investigators (AWI), and individual employment lawyers like me who have stepped in to fill the void. I have trained literally hundreds of human resources, EEO, labor relations professionals, and internal investigation teams of employers in both the private and public sectors on how to conduct a proper investigation.

I have also conducted scores of outside, third party workplace investigations where the employer has either previously failed to timely and objectively conduct an investigation after receipt of a complaint or there is no experienced internal human resources manager who can conduct a thorough and objective investigation. Often, I have found that these workplaces have no uniform, written standards for their internal workplace investigations. These organizations may have established human resources procedures and templates for virtually every other personnel function, but not for this critical process. Some workplaces lack template letters that could be promptly sent out to the complaining party and alleged harasser, acknowledging receipt of the complaint, notifying them of the onset of a confidential, prompt, thorough and objective investigation, and importantly, advising both parties that the company does not tolerate retaliation against anyone who raises a complaint in good faith or participates as a witness in such an investigation.

Employers may be uncertain of how to proceed if an employee claims that comments made by a co-worker are offensive and the employee is now reluctant to speak up because she has suffered repercussions for having once crossed him. A HR representative who hears this should inquire whether the employee has previously raised concerns of harassment and then suffered any form of retaliation. In other words, simply because the employee does not specifically use any "magic words" such as "harassment," "hostile work environment" or "retaliation," does not mean that HR has the discretion not to investigate. Thus, providing clear guidance and training on the circumstances that trigger the employer's duty to investigate would likely prevent many of these cases from ending up in litigation later.

Internal HR and EEO professionals who are charged with the responsibility to investigate complaints within their organizations receive little to no training on what constitutes an "effective" investigation, what legal standards apply to determine whether an investigation was objective and thorough, how to create a roadmap of an investigation by clearly defining the aim and scope, which key witnesses need to be interviewed and which documents to analyze.[17] When confronted with the classic "he said, she said" situation, instead of simply concluding that the findings were "inconclusive" (which is akin to making no findings at all), employers should make credibility determinations based on clear findings of fact.[18]

In view of recent NLRB decisions restricting confidentiality admonishments to employees during investigations, it would be important for the EEOC to reiterate the employer's obligations to maintain confidentiality over the entire process to preserve the integrity of the process and safeguard against retaliation against the complaining party and witnesses- even if the employer is limited in its ability to issue a blanket confidentiality admonishment to its employees. This is an area of ever present confusion for employers given the seemingly opposing interests at play here, spurred by recent NLRB decisions that appear to be inconsistent with employer best practices that are in line with EEOC guidelines.[19]

Employers seek guidance on when an employee can be disciplined for refusing to cooperate with an investigation, whether that employee is the complainant, a key witness or the alleged harasser. On a number of occasions, I have been called upon as an outside investigator to investigate a harassment complaint when the complaining party refuses to discuss his or her concerns with the investigator, or when a certain key witness or the person accused of harassment refuses to participate in the process. Although courts have held that the employee accused of harassment or discrimination who is uncooperative or untruthful during an investigation can be terminated,[20] employers still fear taking disciplinary action against the complainant or a key witness that could potentially give rise to a retaliation complaint. Clear guidelines that address these situations will help employers to meet their investigation obligations.

Employers also need guidance on how to investigate and document factual findings when there is evidence that a certain employment decision was driven by both legitimate business reasons and discriminatory or retaliatory animus, and is therefore, based on "a mixed motive."[21] Simply because there might have been legitimate performance or misconduct issues that gave rise to disciplinary action, the investigator should not then ignore evidence of discriminatory animus where the complaining party was singled out for scrutiny or discipline based on her race, gender, disability, etc., as these findings could affect the extent of liability, amount of damages and attorneys' fees awarded later on in litigation.[22] Where the investigation uncovers evidence of a "mixed motive," the employer has an opportunity to take prompt, corrective action that can minimize the risk of a lawsuit (e.g., to ensure that the employee is not being scrutinized or singled out for disciplinary action, and that the rules are applied fairly to all employees without regard to their protected characteristics.)

Existing training programs designed for workplace investigators tend to focus on how to interview witnesses with relevant information and analyze documents and other forms of evidence that shed light on the issues in the investigation. However, workplace investigators frequently receive little to no guidance on how to prepare a clear, well-organized summary report of the investigation that will support the factual findings that is not merely conclusory in nature. Thus, employers need guidelines and training on how to conduct a prompt, thorough and objective investigation in good faith, and how to prepare a well-written summary report with clearly documented findings, to enable them to take prompt corrective action where warranted. These guidelines should also address how to avoid common employer mistakes that could potentially render the investigation incomplete or create an appearance that the investigation was biased or not conducted in good faith.[23]

D. Recommendations and Conclusion: Reframing the Message for the Workforce of Today and Tomorrow

One of the key areas of the Commission's renewed focus as announced in the EEOC's 2012-2016 Strategic Plan is the prevention of harassment and discrimination through education and outreach to the employer community. Indeed, as the old adage goes, an ounce of prevention is worth a pound of cure, and this could not be more apropos than when we consider the amount of resources spent on litigation and attorneys' fees after the fact, as compared to the relatively limited amount of attention and expenditures spent on education of employers for prevention purposes.

I have outlined above three areas related to workplace harassment where the EEOC might consider focusing its educational and guidance efforts going forward. These include how employers should respond to harassing text messages, blog and social media postings, prevent workplace harassment of employees with disabilities, and how to conduct an effective workplace investigation.

As a frequent speaker and trainer on workplace laws, I often have to think about how best to communicate guidelines on legal compliance and harassment prevention to a new technology-savvy generation of employers and HR professionals, who have grown up multi-tasking, with short attention spans and word limits on Twitter. My office in San Francisco (otherwise known as the birthplace of social media), is just a few short blocks away from Twitter's headquarters. This has compelled a rethinking of how content is presented and the fact that my PowerPoints need to be animated with cogent and compelling sound bites, filled with practical examples and step-by-step, easy-to-follow instructions that both entertain and inform the audience about workplace laws and employer's obligations.

As the Commission prepares to revise and update its guidance in a few areas, it might help to keep in mind the shifting demographics of its target audience of both employers and employees, who are skewing younger and gleaning information through mobile phones and tablets, rather than lengthy Q and As geared towards their Baby Boomer parents, who like me, still prefer to print out and read documents in long form. Informational and educational resources produced by the EEOC, whether in the form of a guidance, webinar, training outline or PowerPoint presentation, should include succinct, easy to follow, step-by-step instructions, and ideally, easily downloadable onto mobile phones and tablets, which are increasingly ubiquitous in the workplace and have become the main means of communication and interface of the millennial generation.