Published on September 7, 2013
Protec'ng HR During Internal Inves'ga'ons How to Protect HR During Internal Inves'ga'ons & What Happens When You Don’t A discussion of court cases LARGELY sta'ng that internal HR/HC (human capital) inves'gators, who inves'gate harassment & discrimina'on, aren’t protected by Title VII’s opposi'on & par'cipa'on clauses. How HR/HC can protect itself & the employer from protracted li'ga'on & poten'al liability. I say “largely” because there are some grey areas, which we’ll discuss. 2013 by Charles Krugel 1/10
Presenta'on Format & “Warning” • Please don’t Hesitate to Ask Ques'ons At Any Time. • Cau'on: Judges change their minds & decisions may vary from place-‐to-‐place. However, as you’ll see per the next slide, the decisions are uniformly consistent on this topic & over many jurisdic'ons, regardless of poli'cal leanings. • At this point in 'me, federal judges disagree with the EEOC on this topic. Moreover & paradoxically, many management side aorneys like me agree with the EEOC on this topic! 2013 by Charles Krugel 2/10
Some of the Cases (All Federal) • Townsend (Grey-‐Allen) v. Benjamin Enterprises (2012); U.S. Court of Appeals 2nd Circuit (NY, CT & VT) • Hatmaker v. Memorial Medical Center (2010); U.S. Court of Appeals 7th Circuit (IL, WI & IN) • EEOC v. Total System Services Inc. (2000); U.S. Court of Appeals 11th Circuit (AL, FL & GA) • Vaconcelos v. Meese/U.S. D.O.J. (1990); U.S. Court of Appeals 9th Circuit (AK, AZ, CA, HI, ID, MT, NV, OR & WA) • 5th & 6th Circuits largely concur (LA, MS & TX; KY, MI, OH & TN) -‐ they haven’t directly addressed the HR issue, but suggest that those who par'cipate or oppose illegal conduct (even without an EEOC charge being ﬁled) are protected, inves'gators aren’t. Abbo v. Crown Motor, 2003, 6th Cir. (TX, KY, MI, OH, TN). • Cau'on: Public sector contrac'ng guidelines could result in contradictory outcomes. They’re prey liberal in holding contractors accountable. 2013 by Charles Krugel 3/10
Title VII of 1964/1991 42 USC 2000e3a (Just a Part of It, But With Big Implica'ons-‐AKA 704(a)) • Absent direct evidence, in order to establish a case of retalia'on, party must show (1) they par'cipated or opposed Title VII harassment or discrimina'on. • This is the 1st step in establishing the threshold 4 requirements for a case of retalia'on (AKA the “prima facie case”). • The 3 remaining steps are (2) employer aware of this opposi'on/par'cipa'on; (3) employer took adverse ac'on against plain'ﬀ; & (4) causal connec'on between the protected ac'vity & retaliatory ac'on (mo've to retaliate). • All 4 must be met. Then burden shios 2 more 'mes. 2013 by Charles Krugel 4/10
Here’s The Typical Fact Paern in VERY GENERAL Terms • An employee complains to the employer about harassment/discrimina'on. • Someone on employer’s behalf inves'gates (e.g., HR/ HC or a 3rd party). • Employer ﬁres or disciplines the inves'gator because inves'gator supports accuser, employer doesn’t like the process, etc. • Courts hold that if the inves'ga'on isn’t pursuant to an oﬃcial EEOC charge, this isn’t retaliatory ac'on against the inves'gator. This is what Congress intended & the law states. 2013 by Charles Krugel 5/10
Krugel’s Opinions • I disagree with the courts; they screwed HR. • In Townsend (2012), concurring Judge Lohier: “Congress should . . . clarify Title VII if it desires to prohibit private employers from retalia'ng against employees merely because they par'cipate in internal inves'ga'ons . . . prior to any involvement by the EEOC.” • Here’s the heart of the maer according to the courts: It’s not up to them to change Title VII. It’s up to Congress. Either Congress or the courts should change this to support HR/HC in inves'ga'ons. It’s a maer of integrity, transparency & good business sense. • In this age of transparency, who wants to work for a company that treats employees & inves'ga'ons in such a shoddy manner? • “Fruit of the poison tree.” Ooen judges cite this or similar clichés. That’s what these cases represent to HR/HC. 2013 by Charles Krugel 6/10
In the Mean'me What Should HR Do? • Is the integrity of all Title VII inves'ga'ons at stake here? Not exactly. These decisions relate only to retaliatory ac'on for conduc'ng an internal inves'ga'on, & prior to an EEOC charge being ﬁled (also it’s federal law only, not state). • Companies should seek to insulate & protect inves'gators from retaliatory ac'ons for conduc'ng a good faith inves'ga'on. How this is done is key (see next slide). – But, these court decisions seem to pit HR/HC against their own employers. The logic is twisted. 2013 by Charles Krugel 7/10
How Should HR Do It? • Policies/procedures – Crao policies & procedures to protect the integrity of inves'ga'ons (e.g., internal review process; give inves'gators “power,” inves'gate by commiee, or use a 3rd party company. • Lobby Congress via SHRM, etc. • Keep it internal: Warn the company & involve legal counsel. Is a bogus inves'ga'on or retalia'on really worth the cost of li'ga'on? 2013 by Charles Krugel 8/10
Ques'ons That Have Yet to Be Answered by the Courts • U.S. Supremes (Farragher & Ellerth) provide defense for prompt & remedial internal ac'ons (“get-‐out-‐of-‐jail card”). Don’t these circuit court opinions lead to bogus inves'ga'ons in order to maintain the defense? I think they could. • What if a company ﬁres the inves'gator in an'cipa'on of an EEOC charge, or because the inves'gator may tes'fy on the accuser’s behalf at the EEOC? • What if a company ﬁres the inves'gator aoer an EEOC charge is ﬁled because the company believes that the inves'gator contributed to the accuser’s mo'va'on to ﬁle an EEOC charge? • In the context of our discussion, isn’t the inves'gator or HR/HC person really = to the accuser? 2013 by Charles Krugel 9/10
Contact Krugel for the Cases • If you’d like copies of any of the cases (PDF), feel free to contact me at firstname.lastname@example.org. 2013 by Charles Krugel 10/10
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