Football PenaltyGoing into last weekend I was overcome with sports euphoria with U of M, the Spartans, and the Lions being undefeated and the Tigers on the verge of winning their Division. 

Unfortunately that winning streak did not continue. But success by 3 out of 4 of my Michigan teams wasn’t too bad (thanks Sparty for dropping the ball).

The Spartan’s lost, however, provides a good reminder that mistakes simply kill success. Consider for example that in their loss the Spartans had two costly turnovers and 12 penalties, including several offensive holding penalties that backed up critical drives.    

For employers mistakes in responding to sexual harassment claims may be costly and jeopardize successfully defending a claim that is later filed. In this regard, the following are several areas that deserve focused attention, preferably with the assistance of experienced legal counsel: 

  • It is critical for employers to make sure managers and supervisors understand what to do if they receive a complaint or experience harassment and that the appropriate action is taken in a timely manner;
  • Make sure that employees understand their options and obligations for reporting harassment and that both are documented. This is because under Burlington Indus v Ellerth, 524 US 742 (1998), and Faragher v City of Boca Raton, 524 US 775 (1998), the second element of an employer’s affirmative defense requires an employer to show that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Ellerth, 524 US at 765. 
  • The investigation should identify likely sources of relevant documents and digital information that may provide objective evidence of harassment. This point needs to be carefully considered because a party has an obligation to suspend any automatic deletion procedures and to otherwise preserve information once litigation is commenced or a party reasonably anticipates litigation, i.e., possibly investigating misconduct. In fact, e-discovery sanctions commonly relate to a party’s failure to take appropriate preservation efforts prior to actual litigation being filed. To minimize later e-discovery costs, legal counsel should collaborate with IT professionals to implement appropriate litigation hold procedures in order to properly preserve relevant information; 
  • Information during the investigation phase should only be disclosed on a need to know basis; and 
  • It is important to remain objective. Every investigation should start without any preconceived notions of guilt or innocence on the part of any particular party.  

This list is certainly not an exhaustive playbook. But eliminating mistakes in these critical areas will go a long way towards improving the overall sexual harassment investigation process.