Strategies to End Workplace Bullying and Harassment Lisa Bergersen Engagehr Law, LLC Lisa@Engagehrlaw.Com 262.833-7250 September 2, 2020

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Strategies to End Workplace Bullying and Harassment Lisa Bergersen EngageHR Law, LLC [email protected] 262.833-7250 September 2, 2020

2020 Virtual Municipal Attorneys Institute

I. Introduction. A. An estimated 30 million Americans are victims of bullying behavior in the workplace. Local governments are not immune from the widespread problem of workplace bullying. Bullying behavior that is directed at others in the workplace, but not necessarily based on a protected class status, is not unlawful per se, despite its prevalence in many American workplaces and the fact that it leads to negative consequences for employees and employers and possible legal liability in some situations. Source: Workplace Bullying Institute, Workplace Bullying Survey (2014). B. This outline will: 1. Define and explain the difference between bullying and unlawful harassment. 2. Explore the organizational and legal foundations of both. 3. Review the organizational and individual costs associated with this behavior in the workplace. 4. Discuss methodologies and best practices for investigating alleged bullying and unlawful harassment. 5. Provide an overview of remedial measures to be taken when bullying or harassment has occurred. 6. Discuss the different ways that employees and employers can work to prevent bullying and harassment. II. Defining bullying and legally harassing behavior. A. Bullying is verbal, physical or written behavior generally as a pattern of conduct directed at an individual or group of people that is offensive, abusive, intimidating, harassing, degrading and/or otherwise physically or mentally damaging. 1. Examples of obvious bullying behavior include: a) Spreading malicious untrue rumors. b) Excluding or isolating someone socially. c) Intimidating a person. d) Yelling or using profanity.

2. Examples of subtle bullying behavior include: a) Undermining or deliberately impeding a person’s work. b) Establishing impossible deadlines/setting someone up to fail. c) Withholding necessary information or purposefully giving wrong information. d) Belittling opinions. e) Persistent criticism. B. Unlawful harassment is unwelcome conduct, based on a person’s membership in a protected class, where (1) enduring the offensive conduct becomes a condition of continued employment, or (2) the conduct is severe or pervasive enough to create a work environment that unreasonably interferes with an employee’s job performance or creates an intimidating, hostile, or abusive environment. 1. Protected categories include sex, age, race, ethnicity, nationality, sexual orientation, pregnancy, marital status, arrest and conviction record, religious beliefs/creed, disability, military status, use or non-use of a lawful product. State, federal and local laws establish protected categories. 2. There are two distinct types of harassment: a) Economic harassment is also known as quid pro quo or “this for that.” The elements of this type of harassment include: (1) The harasser is an authority figure/supervisor; (2) Submission to or rejection of a request is a term or condition of employment; and (3) Results in a tangible employment action (either an adverse or a beneficial action). (4) Examples: (a) “Sleep with me and I’ll make sure you get that promotion.” (b) “Sleep with me or lose your job.” b) Environmental harassment is also known as a hostile work environment. This is conduct that has the effect of interfering with a person’s work performance, or of creating an intimidating, hostile, or offensive working environment. It has four elements: (1) Unwelcome verbal or physical conduct; (2) Conduct is based on a protected category; (3) The conduct is offensive to the recipient and to a “reasonable person;” and (4) It is severe or pervasive.

All elements must be met for unlawful harassment, and the totality of the circumstances are considered when determining if it was unwelcome, offensive and severe or pervasive. III. Fundamental and legal principles. A. Fundamental rights: 1. Everyone is entitled to dignity & respect in the workplace. This is a basic human right, even if not mandated by law. 2. The “Golden Rule” still applies: “Do to others as you would have them do to you.” B. State laws: 1. Wisconsin Fair Employment Act, Wis. Stat. § 111.31, et seq. a) State law protects workers from harassment in the workplace based on their race, color, creed, ancestry, national origin, age (40+), disability, sex, arrest or conviction record, marital status, sexual orientation, and membership in the military. b) The Wisconsin Department of Workforce Development explains that harassment may include verbal abuse, epithets, and vulgar or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures and telling of jokes offensive to protected class members. The behavior must be more than a few isolated incidents or casual comments, unless sufficiently severe. It involves a pattern of abusive and degrading conduct directed against a protected class member that is sufficient to interfere with their work or create an offensive and hostile work environment. The elements described above must be met to establish unlawful harassment under State law. c) State law does not protect workers from general workplace harassment or bullying unrelated to a characteristic protected under the law. d) Currently Wisconsin state law does not require harassment training. Other states have started to pass legislation requiring sexual harassment training. 2. Worker’s Compensation, Wisconsin Statutes Chapter 102. a) The Wisconsin Worker’s Compensation Act defines an injury as any mental or physical harm due to workplace accidents or diseases. Injuries related to bullying and harassment could be covered because the definition of “injury” includes mental harm. If the injury is mental harm or emotional stress without a physical trauma, the injured employee must show that it resulted from a situation of greater

dimensions than the day-to-day mental stresses and tensions that all employees experience. b) Emotional stress caused by sexual harassment was compensable under the Wisconsin Worker's Compensation Act. Zabkowicz v. West Bend Co., Div. of Dart Industries, Inc., 789 F.2d 540 (7th Cir. 1986). c) Emotional injury suffered by clerk-treasurer of village, who was subjected to public criticism and was berated by village president beyond anything ordinarily accompanying her job, was “injury” covered by the Wisconsin Workers’ Compensation Act. Jenson v. Employers Mut. Cas. Co. (App. 1990) 154 Wis.2d 313, 453 N.W.2d 165 (Wis. Ct. App. 1990), affirmed 161 Wis.2d 253, 468 N.W.2d 1, reconsideration denied 471 N.W.2d 512. 3. Wisconsin Criminal Code Violations, Wis. Stat. § 947.013 “Harassment” provides: (1m) Whoever, with intent to harass or intimidate another person, does any of the following is subject to a Class B forfeiture: (a) Strikes, shoves, kicks or otherwise subjects the person to physical contact or attempts or threatens to do the same. (b) Engages in a course of conduct or repeatedly commits acts which harass or intimidate the person and which serve no legitimate purpose. (1r) Whoever violates sub. (1m) under all of the following circumstances is guilty of a Class A misdemeanor: (a) The act is accompanied by a credible threat that places the victim in reasonable fear of death or great bodily harm. (b) The act occurs while the actor is subject to an order or injunction under s. 813.12, 813.122 or 813.125 that prohibits or limits his or her contact with the victim. (1t) Whoever violates sub. (1r) is guilty of a Class I felony if the person has a prior conviction under this subsection or sub. (1r), (1v), or (1x) or s. 940.32 (2), (2e), (2m), or (3) involving the same victim and the present violation occurs within 7 years of the prior conviction. (1v) Whoever violates sub. (1r) is guilty of a Class H felony if he or she intentionally gains access to a record in electronic format that contains personally identifiable information regarding the victim in order to facilitate the violation under sub. (1r).

(1x) Whoever violates sub. (1r) under all of the following circumstances is guilty of a Class H felony: (a) The person has a prior conviction under sub. (1r), (1t) or (1v) or this subsection or s. 940.32 (2), (2e), (2m), or (3). (b) The person intentionally gains access to a record in order to facilitate the current violation under sub. (1r). (2) This section does not prohibit any person from participating in lawful conduct in labor disputes under s. 103.53. 4. Wisconsin Criminal Code Violation, Wis. Stat. § 947.01 “Disorderly Conduct” provides: (1) Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor.

5. Wisconsin Criminal Code Violations, Wis. Stat. Chapter 940: sexual assaults and/or assault and battery laws. C. Federal laws. 1. Equal Employment Opportunity. a) Harassment is a form of employment discrimination that violates many laws, including but not limited to: (1) Title VII of the Civil Rights Act of 1964 (Title VII), which includes race, color, religion, sex, and national origin as protected characteristics. (2) The Age Discrimination in Employment Act of 1967 (ADEA), which protects individuals 40 years of age and over. (3) The Americans with Disabilities Act of 1990 (ADA), which protects qualified individuals with disabilities. b) The employer is automatically liable for harassment by a supervisor that results in a negative employment action such as termination, failure to promote or hire, and loss of wages. If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: (1) It reasonably tried to prevent and promptly correct the harassing behavior; and

(2) The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. c) The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers on the premises), if it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. d) When investigating allegations of harassment, the EEOC looks at the entire record, including the nature of the conduct, and the context in which the alleged incidents occurred. A determination of whether harassment is severe or pervasive enough to be illegal is made on a case-by-case basis. D. Occupational safety and health. 1. Wisconsin is not a “state plan” state, meaning it does not have a federally- approved occupational safety and health program. Consequently, federal laws govern the workplace safety and health in the private sector (private businesses and nonprofit organizations). Wisconsin’s safety and health regulations found in Chapter 101 of the Wisconsin Statutes govern public sector (state and local government offices and operations) workplaces. The state has adopted the federal rules by reference and has implemented several rules that are stricter than federal standards, including injury and illness reporting. OSHA administers and enforces occupational safety and health in the private sector in Wisconsin. The Department of Safety and Professional Services (DSPS) administers and enforces the state’s public sector workplace safety and health standards. 2. Whether harassing behavior comes under OSHA purview is still an open question. However, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm." The courts have interpreted OSHA's general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities that either the employer or the industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. OSHA forces employers to look ahead, which means taking steps to prevent harassment. 3. OSHA’s focus seems to be on whether physical violence and injury exist and was foreseeable. OSHA’s Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, OSHA Directive CPL 02-01- 058 (January 10, 2017), explains: OSHA should generally not initiate an inspection in cases of coworker or personal threats of violence. In cases of

coworker violence, the Area Office will evaluate whether an inspection is appropriate on a case-by-case basis. Among the factors to consider are: (1) whether the incident was foreseeable, that is whether the incidents of coworker violence are ongoing and/or escalating and whether the employer has taken steps to address the hazard; and (2) if foreseeable, the severity of the incidents. If an Area Director becomes aware of instances that could be classified as intimidation or bullying, they should consider referring the complainant to the appropriate government entity. Referrals could be made to the local police department, the Equal Employment Opportunity Commission, the National Labor Relations Board, or OSHA’s Office of Whistleblower Protection. The Area Director may inform the employer if a referral is made. E. Additional Civil Claims/Liability. 1. Intentional infliction of emotional distress. 2. Negligent hiring, supervision and/or training. 3. Defamation. 4. Constructive discharge. IV. Costs of ignoring toxic behavior. A. Personal. 1. The individual impact of workplace bullying and harassment will vary according to the personal temperament of the affected person and the degree and severity of the behavior. Some of the reported impacts to individuals include: a) Work-related stress. b) Depression, anxiety, anger, frustration, panic attacks, PTSD. c) An inability to work, concentrate, focus, or make decisions. d) Loss of productivity and reduced performance. e) Loss of self-confidence and self-esteem. f) Physical impairments, including high blood pressure, nausea, tearfulness or uncontrollable crying, an inability to or difficultly sleeping. g) Reduced quality of life and relationships with others. h) Increased use of drugs and alcohol. i) Suicide. B. Organizational.

1. Prolonged, widespread, and/or discernable bullying and harassing behavior can negatively impact work groups or, in some cases, the entire workforce. Many of these consequences are associated with increased financial costs as well related to legal and insurance claims, turnover, retraining, and lost production. Some of the potential costs to organizations include: a) A stressful and toxic work environment. b) Diminished employee performance, attendance, productivity, engagement and customer focus. c) High turnover. d) Lack of trust among employees and between employees and management. e) Poor morale. f) Damaged corporate reputation, e.g. Glassdoor. g) Increased worker’s compensation, disability, and health insurance claims. h) Legal claims. Sources: • Preventing and Responding to Bullying at Work. WORKSAFE New Zealand. (March 2017). • Tackling bullying at work: A UNISON guide for safety reps. UNISON Communications (2013). • Workplace Bullying Institute, Impact on Employee Health Survey (2012). • Dealing with Workplace Bullying: A Practical Guide for Employees, Interagency Round Table on Workplace Bullying, Government of South Australia (2007). • American Psychological Association (2007). V. Investigative Methodologies. A. The primary goal of an investigation concerning bullying or harassing conduct is to identify a reliable set of facts upon which a reasonable and probable conclusion of the matter under investigation can be made. Each step of the investigation must be carefully planned and executed to achieve this goal, and to ensure the investigation meets all applicable legal requirements and is fair and impartial. A well-executed, thorough, and prompt investigation is not only legally required in many instances, but it remains one of the most effective ways to prevent and eliminate bullying and harassment in the workplace. Salvadori v. Franklin School Dist., 293 F.3d 989 (7th Cir. 2002) (“An employer has a duty to take reasonable steps to discover and rectify acts of harassment against its employees”). B. Preliminary Considerations.

1. When to investigate. a) Treat every complaint seriously, including those that are formal, informal, anonymous, stem from an administrative complaint, and even those that are rumor-based when strong and frequent. Notice of harassment can be presumed where the work environment is permeated with pervasive harassment. Wilson v. Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999) (Much of the alleged harassment was public and “deliberately exhibitionist.”). (1) A complaint need not be in writing, even where the employer’s policy requires it. Complaints that do not technically comply with an employer’s internal procedure can still be sufficient if there are other indications that the employer knew or should have known of alleged harassment. Phelan v. Cook County, 463 F.3d 773, 786 (7th Cir. 2006). (a) The relevant inquiry is whether the employer was adequately alerted to harassment, not whether the complainant “followed the letter of the reporting procedures set out in the employer’s harassment policy.” Cerros v. Steel Technologies, Inc., 398 F.3d 944, 952 (7th Cir. 2005); Durkin v. City of Chicago, 341 F.3d 606 (7th Cir. 2003) (The employee must provide enough information so that a reasonable employer would think that there was some probability that the employee was being sexually harassed.) 2. Timing of investigation. a) Ideally, the investigation should begin within one working day of the complaint or knowledge of potential inappropriate behavior, though policies may provide, or circumstances may dictate, additional time. The interests of the employer and all concerned parties are best served by a prompt and thorough investigation. An incomplete or prematurely concluded investigation can be the basis for liability as to either the victim or perpetrator of harassment. 3. Interim measures. a) Circumstances may require that some measures be taken to ensure that any alleged harassment or bullying not be allowed to continue while the investigation is ongoing. These measures can include a paid administrative leave pending investigation for the accused, limiting interactions, scheduling differing work hours, transferring the alleged harasser, allowing one of the parties to work from home, or some other manner of separating the parties that permits each to continue their job duties. 4. Selection of an investigator.

a) Thoughtful consideration should be given to who conducts the investigation. Whether internal or external, impartiality and open- mindedness is crucial. An important consideration is the possible benefit to maintaining an attorney-client privilege over the investigation and materials created. Further, the investigator must be trained in conducting workplace/harassment investigations. (1) “Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.” EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/18/1999) (a) Training qualifications include how to ask questions, appropriately document and communicate, evaluate credibility, deal with witnesses, including difficult or emotional ones, keep biases in check, knowledge of relevant laws and policies, and the ability to provide credible testimony in a court or administrative forum. Smith v. First Union National Bank, 202 F.3d 234 (4th Cir. 2000) (Investigator had never previously conducted an investigation into sex harassment claims and ignored those claims, choosing to focus instead on grievances about the complainant’s supervisor’s management style) C. Create an investigation plan. 1. Attorney-Client privilege. Even though attorney-client privilege may exist initially, a client may want or need to waive it at some point if litigation ensues. Prepare and conduct the investigation under the assumption that everything put into writing, including notes, bills, emails, etc. will be discoverable and reviewable at some point. Make sure that the client understands the parameters of the privilege and any possible need to waive it. Waiver may be needed to establish that the employer responded promptly, the investigation was thorough, or that no harassment occurred. Ellerth v. Burlington Industries, Inc., 524 U.S. 742 (1998). Discoverability is a particularly important consideration if the employer is a public entity subject to open records laws. 2. Define and outline the scope of the investigation. The scope is initially set by the complaint, but it is important to understand that it may change over the course of the investigation. Ensure that clarifying questions are used to vet statements made by the parties and witnesses that may indicate the need to expand the investigation. If the investigator determines that additional allegations need to be explored, permission from the client should be sought before proceeding. If the client denies permission, the investigator should document that decision.

3. Determine logistics. Identify a location for the interviews that meets the need for privacy required by the process. Witnesses should be shielded from seeing each other where possible. Witnesses should be permitted to sit closest to the door so they can leave. If at any time the investigator does not feel safe with the witness, he or she should conclude the interview or take a break to obtain security. Also, allow witnesses to bring a representative with them to the interview, and be prepared if the witness asks to record by being consistent with internal policies and procedures regarding such recordings. 4. Review the complaint and any other documentation provided. Review applicable policies that may apply, including investigation procedures and policies/procedures related to discipline contained in relevant statutes, handbooks, employment contracts or collective bargaining agreements. It is important to know whether a “just cause” standard for discipline needs to be met. 5. Plan the interviews: a) List of interviewees. (1) The list should include anyone who can assist the investigator in making thorough factual determinations. It should include parties identified in the complaint, by the client or by any person interviewed if the identified persons are reasonably likely to have relevant information. b) Order of witnesses. (1) Generally, the first person to be interviewed is the complainant, but this may not always be the case depending on the particular nature of the allegations or circumstances involved. (2) The investigator should make an assessment of other witnesses to be interviewed, ranking them in order of potential for having relevant information. It may be unnecessary to interview all witnesses if the information becomes cumulative. Also, keep in mind that interviewing individuals, especially those outside the organization, could threaten privacy interests of the parties involved. (3) The nature of the allegations and the particular individuals involved will dictate whether the accused is interviewed before or after other witnesses. It may make sense to gather information from all the witnesses before interviewing the accused. c) Questions to ask or subject areas to explore. (1) The investigator must be intimately familiar with as many facts/allegations as possible prior to commencing any interviews. Having a list of questions or outlining areas of inquiry, will ensure that nothing is missed and will keep the

interview organized. However, the investigator must remain flexible during the interview to modify questions depending on how the interview unfolds. (2) See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/18/1999) for lists of questions to ask in harassment investigations. d) Additional required documentation. (1) Be cautious about reviewing personnel, medical or other records that may have little to no bearing on the investigation and could create bias toward a party. However, if related to the pending complaint, prior disciplinary/evaluative history of the accused should be reviewed. D. Introductory remarks. 1. It is important to set the appropriate tone and maintain control over the flow of the interview. The first few minutes and what is said are critical to achieving these goals. Investigators should not “wing it,” but should carefully craft or script the introduction. 2. Explain the purpose of the interview in general terms and the investigator’s role. For example, “I am investigating a confidential complaint made involving persons and events in your work area.” It is generally best not to provide any significant or specific details at the beginning. 3. When the investigator is an attorney retained to provide legal advice, witnesses must be advised of this fact, and told that the investigator represents the employer only and the investigation is being conducted for the purpose of obtaining or rendering legal advice. Upjohn v. United States, 449 U.S. 383 (1981). The investigator should make clear that he or she is conducting an unbiased and impartial investigation, and that the findings and conclusions will be shared with the employer. The witness should be told that the investigator does not represent the witness personally, and that while their discussion is protected by the attorney-client privilege, that privilege belongs to the employer alone and only the employer can waive it. 4. Provide copies of, and frame the purpose of the investigation around, all applicable policies, i.e. anti-bullying, anti-harassment, civility, respectful workplace etc. 5. Explain the role of the witness, and provide an explicit statement whether the person is or is not the subject of the investigation. Make clear the goal is to have a conversation about potentially relevant knowledge the witness may have and that their part is to answer questions truthfully, accurately and as completely as possible. 6. Explain that notes will be taken (or the interview recorded) and used to create a final report. Ask if the witness is willing to sign a statement based on the notes (if the interview is not recorded) following the interview.

7. Provide a confidentiality prohibition as appropriate. a) When an Upjohn warning is provided (see sub 3. above), witnesses should be told that in order for the discussion to be subject to the attorney-client privilege, the conversation itself must be kept confidential. They are not to disclose the substance of the interview with anyone other than possibly their own attorney. b) EEOC Guidance: Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors (06/18/1999)- “An employer should make clear to employees that it will protect the confidentiality of harassment allegations to the extent possible. An employer cannot guarantee complete confidentiality, since it cannot conduct an effective investigation without revealing certain information to the alleged harasser and potential witnesses. However, information about the allegation of harassment should be shared only with those who need to know about it. Records relating to harassment complaints should be kept confidential on the same basis.” See also EEOC Select Task Force on the Study of Harassment in the Workplace (2016); EEOC Proposed Enforcement Guidance on Unlawful Harassment (2017) c) Suggested approach: Advise interviewees that they are not to discuss the investigation, the questions asked, or the answers they gave in order to protect people’s privacy and the integrity of the investigation. Do not prohibit discussion about the events involved as such discussions can lead to more information in the investigative interviews. 8. Provide assurances against retaliation and a copy of the employer’s policy. Encourage immediate reporting of any perceived acts of retaliation. Advise all individuals interviewed that they are prohibited from retaliating against anyone who files a complaint or participates in an investigation, and a failure to follow the directive may result in discipline. 9. Stress that the investigation is objective and impartial and that this is the commencement of the fact-finding stage; no conclusions of any kind have been initiated or made. 10. Address issues of voluntariness as related to third-party witnesses. 11. Ask if the person has any questions and confirm an understanding of what has been shared before proceeding. It is important to ask throughout the interview, especially lengthier ones, if there are any questions. E. During the interview. 1. Demonstrate respect throughout. An investigator who exhibits impatience, hostility, interrogation or a disrespectful tone risks alienating the witness and failing to obtain all relevant information.

a) Expect resistance and strong emotions from all parties. Patience and empathy must be used to persuade those interviewed to understand the importance of their participation and to continue with the process. 2. Listen. Use silence to ensure witnesses have exhausted what they want to say, and to ensure that they share all relevant information. 3. Start with easy questions about their background, position, department, co- workers, etc. to build rapport. 4. Use open-ended questions as much as possible, and follow-up questions as needed. In addition to the standard who, what, why, where, when and how questions, use probing follow-up questions to coax witnesses to expand and explain, such as: a) How do you know that? b) What do you mean by that? c) Can you tell me more about….? d) Is it possible that…….? 5. Ask questions designed to elicit possible motives of the parties involved. a) “Why would ______claim that if it wasn’t true?” b) “Do you have an explanation of why ______story differs so greatly from your version of events?” 6. Do not express any opinions, conclusions, assurances of outcomes, or biases of any type. Be intentional and carefully craft the phrasing of each question to avoid doing so. 7. The focus must be on the nature, frequency, pattern, severity and impact of the conduct as evidenced from the viewpoint of a reasonable person. a) In bullying (as distinguished from unlawful harassment) investigations, the challenge is to identify whether complained of conduct is merely rude or disrespectful behavior, or the type and pattern of conduct that fits the definition of bullying. (1) Because many bullying allegations can be vague, “John is mean to me and is out to get me” as an example, it is critical to use appropriate questioning of the complainant and witnesses regarding the specifics of actions taken and things said by the alleged bully to flesh out precisely the complained of behavior. Ask what specific words were used, actions taken, documents involved. Obtain specific descriptions of body language, facial expressions and tone of voice, which are often necessary to bring context to what can otherwise be neutral or harmless words or phrases. b) Avoid labeling. Referring to behavior as “bullying” or “harassing” especially in an interview with the alleged wrongdoer will only serve to

shut down or slow the flow of information. Stick to objective descriptions of what was said and done. c) Listen for and document exaggeration, embellishment, evasiveness and absolutes. d) Work around deflection mechanisms. (1) Minimizing. (2) Charm/charisma. (3) Professed innocence. (4) Excuses for behavior/blaming the target. (5) Feigned ignorance. (6) Indifference or downplaying incidents/words. e) Strategies for dealing with difficult or evasive witnesses: (1) Work at building rapport to earn trust and assist with lowering defense mechanisms; show/say that you understand their frustrations, but don’t agree with their assertions. (2) Soften language and tone to overcome resistance and deflection. (3) Use silence and breaks to deescalate behavior. (4) Refocus the conversation back to their specific behavior and role. (5) Ask….and ask again, nicely. F. Concluding questions/comments. 1. Is there anything else I should know or be aware of? 2. Is there anyone else I should talk to? Any documents, emails, or other physical information I should see? a) If yes, what do you think that person would say? What would that document/information contain? 3. If you were in my shoes, are there any additional questions you would ask? 4. Is there anything you thought I would ask today, but didn’t? 5. Let the witness know that a second conversation may be required depending on how the investigation unfolds. Similarly, provide contact information for the witness to use should additional recollections occur after the interview. 6. Provide a reminder regarding retaliation, and one as to confidentiality if that was provided in the opening comments. 7. Agree beforehand with the client about what interviewees will be told concerning the unfolding/conclusion of the process.

VI. Making credibility assessments, findings and conclusions. A. Standard of analysis. 1. Investigations should conclude when a sufficient amount of information has been gathered to permit the investigator to make a conclusion. 2. Generally, “preponderance of the evidence” is the appropriate standard. Is it more likely than not that the complained of conduct occurred? If a quality investigation has been conducted, a reasonable, fair, and good faith conclusion can be made. 3. A conclusion can and, in most cases should, still be reached even if the accused does not admit to the conduct or if there are no witnesses other than the complainant. The credibility of statements made by the complainant and the accused can and should be weighed against each other. Circumstantial evidence and factors impacting the parties’ credibility must be considered. B. Assessing credibility. 1. Factors: a) Corroboration: Reliable documents, physical evidence, statements made by and to others. b) Observations. c) Quality of recollection. d) Statements: Consistency, reliability, credibility, contradictions. e) Bias/Interests/Motives. f) Plausibility. g) Background, history, pattern. h) Character/reputation. i) Demeanor/attitude. 2. Tools: a) Pattern jury instructions. b) EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/18/1999) (1) Inherent plausibility: Is it believable? Does it make sense? (2) Demeanor: Appear to be telling the truth? (3) Motive to falsify: Reason to lie? (4) Corroboration: Evidence that supports a version of events? (5) Past Record: History of similar behavior? c) See also California Department of Fair Employment and Housing Workplace Harassment Prevention Guide for California Employers.

C. Preparing the final report. 1. The report should outline: a) Date and description of the complaint. b) A summary of the scope of the investigation and relevant policies/procedures. c) The investigation methodology, including what was said to witnesses in the introductory and concluding remarks. (1) The report should also include an explanation for any delays, supporting rationales in determining who to interview or not interview, and whether other allegations were revealed and how they were handled. d) A summary of the evidence gathered through the interviews and review of documentation and other tangible evidence. e) A summary of findings, explanation of how credibility disputes were resolved, and a final conclusion based on the investigator’s application of the preponderance of evidence standard. (1) A conclusion can be reached. Allegations are substantiated or not substantiated. (2) Explain the reasoning behind findings and credibility determinations. (3) Draw a conclusion on whether the employer’s policies/applicable laws have been violated if within the agreed-upon scope. Ensure that the client and investigator make the decision at the beginning whether this is a function for the investigator. In-house counsel or separate employment attorney may ultimately be the persons who make these determinations after the investigator submits the investigative report. VII. Remedial Measures. A. An employer must take actions that are “’reasonably calculated to prevent further harassment under the particular facts and circumstances existing at the time the allegations are made.’” Jackson v. County of Racine, 474 F.3d 493, 502 (7th Cir. 2007), citing McKenzie v. Ill. Dept. of Transp., 92 F.3d 473, 480 (7th Cir.1996) (emphasis added). B. Legal actions. 1. Injunctive relief may be required to prevent ongoing harassment or discrimination. 2. Reinstatement as a remedy (such as if part of the harassment was termination of employment).

C. Discipline or termination. 1. Not all actions in violation of policies may result in discipline. 2. Consider circumstances/nature of the offense, past practice related to level of discipline, and progressive discipline for employee. 3. Ensure that requirements for discipline or termination set forth in employment contracts, applicable statutes (such as for police/fire), handbooks and/or collective bargaining agreements are met. D. Other Corrective Measures. 1. Confrontation of the accused. Issue a cease and desist order regarding the conduct, letting them know the conduct is unacceptable and will not be tolerated. 2. Coach employees on appropriate workplace conduct and how to work with certain individuals. 3. Therapy such as anger management as a condition of continued employment. 4. Training for all staff and/or the perpetrator. 5. Monitoring of the workplace and conduct of the accused. 6. Accountability for the perpetrator and the organization. E. Prevention of retaliation. 1. Issue a cease and desist order to the accused with clear directive not to engage in retaliation. 2. Publish policies and reminders for all parties and witnesses. 3. Follow-up with the victim. 4. Monitor the workplace and conduct of the accused. F. Follow up with victim. 1. The victim should not be told about the discipline administered to the wrongdoer, but that action was taken to stop the harassment. 2. Remind the victim to report any further violations/harassment or any retaliation. 3. If the perpetrator is still employed, inform the victim that the perpetrator was warned about the consequences of any further harassment or retaliation. 4. Check back in with the parties occasionally to ensure that no further violation/harassment or retaliation has occurred.

VIII. Prevention. A. Culture of Respect and Dignity. 1. The goal of any policy involving bullying, harassment, discrimination, etc. is to develop a work culture that values and respects the dignity of everyone in it. 2. A commitment to building healthy relationships in a respectful work environment and eliminating biased attitudes and beliefs is the essential foundation to any prevention efforts. The formulation of a plan and intentional efforts to develop such a culture is essential to meeting the goal. a) The strategic plan and corporate values should reflect and encourage a positive work culture. b) Incorporate respect and dignity values into the feedback, coaching, pay- for-performance initiatives and policies. c) Make certain that managers are treating their employees well and are actively engaged with them on a regular basis. d) Every layer of management should have a true open-door policy where employees really are listened to and complaints are taken seriously. e) Silence can be an indication of a problem in the culture. Employees may not feel safe or may believe that speaking will be useless or result in retaliation. The plan should include strategies for ensuring that everyone feels safe speaking up. B. Policies. 1. Anti-Bullying/Anti-Harassment/ Respectful Workplace/Civility/Code of Conduct. a) Essential elements include: (1) Real and authentic management commitment. (2) Scope of coverage to include third-parties such as vendors, visitors, customers. (3) Clear standards of expected behavior. (4) Definitions of unacceptable behavior and explicit examples of such. (5) Employee responsibilities and encouragement to report even if uncertain that the conduct at issue violates the policy. (6) A commitment to confidentiality to the extent possible and permitted by law. (7) Complaint and investigation procedures, with multiple complaint reporting channels. (8) A commitment to corrective action and follow-up after a policy violation has occurred.

(9) Strong retaliation prohibition. 2. Policies should be discussed more than once a year. They are only effective if they are referenced regularly. a) Employers should consider adding a Respectful Workplace page to their intranets/employee portals, and send out regular electronic communications regarding different aspects of the policy or prevention program. b) Prohibited and expected behaviors should be included and emphasized throughout people management policies, practices and programs and included in each job description. C. Respectful Workplace Training and Coaching. 1. Training should start with management. Leaders in the organization must be aligned with the goal of developing a respectful work place. If even one leader fails to get on board, the employer risks jeopardizing the entire effort. Buy-in cannot be optional. EEOC, Promising Practices for Preventing Harassment (“The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated.”) a) Employers should not presume that managers themselves know how to deal with bullies or situations where one staff member is bullying or harassing another. Equipping managers with the knowledge and tools to recognize and deal with bullies is crucial. b) Leadership development in this area should extend beyond training to regular coaching, permitting managers to work with a coach on employee development, relationship and performance management plans, as well as consultations to discuss challenging relationship issues that arise on their team. Working with leaders to personally develop positive leadership traits is another way to create commitment to the cause. 2. Managers, supervisors, and “lead” workers must be trained in how to effectively monitor the work environment and alert the appropriate staff members of any issues or complaints that could implicate unlawful harassment or bullying behavior. Lambert v. Peri Formworks Systems, Inc., 732 F.3d 863 (7th Cir. 2013)(“ We conclude that a trier of fact could find that Lambert reasonably expected that his reports of the harassment to the two yard leads was enough to set in motion the process of bringing his complaints to the attention of someone with authority to remedy them.”) 3. All employees, including supervisors, should undergo sensitivity, diversity and inclusion, and bystander training to raise awareness and teach/encourage employees to speak up as needed. Staff should see their supervisors participate in the trainings.

a) Concepts of respect, dignity, and safety to speak up must be the foundational themes of any training program. b) Training should also include covering the applicable policies and teaching the concepts covered in those policies. c) Live training is most effective, and should include role playing or the study of case scenarios where possible and offer the opportunity for employees to ask questions. 4. Conflict management and effective communication training are also excellent tools to equip staff to learn how to resolve disagreements in a healthy way. Some employers have implemented formal conflict resolution procedures to provide a neutral mechanism, such as mediation, to resolve significant workplace disputes. 5. If employees are identified as having poor people skills, consider engaging coaches to assist in the improvement of people and emotional intelligence skills. 6. Provide regular assessments and feedback on how employees and leaders are treating others. D. Risk Assessments. 1. Employers should develop various methods to gauge the potential risk for or existence of bullying or harassing behavior in the workplace. Some ideas include: a) Regular review of reasons for absences, leaves, worker’s compensation claims and turnover. Look for patterns involving the same work group, manager, or employee. b) Managerial feedback. c) Climate surveys and/or focus groups. d) Stay and exit interviews. e) The rumor mill. f) Review of EAP utilization reports. 2. Be cognizant and study the existence of factors that permit bullying/harassing behavior, such as: a) Managers who are conflict avoiders and simply will not deal with a bully/harasser, and/or who overlook such behavior because the bully/harasser is otherwise a high-performer. b) Leaders whose style is domineering, micro-managing, and based on command and control. c) A workplace culture that explicitly or implicitly encourages bullying- type behavior to move ahead or to succeed. d) Interpersonal difficulties between employees or groups of employees. 21 - Bergersen © 2020 EngageHR Law, LLC

E. Hiring right. 1. Use behavioral based interview questions to explore the mindset/attitudes of candidates. This is especially crucial when hiring for any position that will oversee, supervise, or manage others. 2. Pre-employment assessments can delve into candidates’ work behaviors and beliefs and assist in determining their “fit” with the particular job and work environment. F. Equip employees. 1. An effective prevention plan also equips employees with strategies for dealing with bullying/harassing conduct. Successful strategies include learning how to: a) Recognize and acknowledge that they are being bullied and understand that they are not the cause of the problem. Or, conversely, to recognize that they may be a part of the problem, either because they are the bully, or because they see that behavior in others and don’t speak up. Employers can make available self-assessment questionnaires to assist employees recognize if they are victims. b) Use terms and phrases to deflect the bully or harasser. Learning how to use silence. Making good choices, such as refusing to participate in gossip or jokes. Employers again can provide information sheets to assist this effort. c) Maintain a log of the behaviors and comments made by the aggressor. Note the identity of any witnesses to incidents. d) Keep copies of any documents relevant to the behaviors, comments, and anything that will contradict accusations made by the bully. e) Report the behavior. Even if the employer lacks a specific anti- bullying or related policy, making a report to Human Resources, a manager, department head or other executive is the crucial first step towards ending the conduct. f) Locate external support systems, such as an employee assistance program.