So, the last time I discussed the 15 Key Steps employers should take, according to AllBusiness.com, to respond to sexual harassment claims, I mentioned “lawyering up” and being “fair” (as well as, perhaps more importantly, “appearing fair.”)
Minimizing access to information
I want to pick up with one theme I briefly touched upon the last time, an idea either implicitly or explicitly expressed in most of the 15 employer-tips: in responding, the employer should (a) minimize creating potentially damaging evidence and (b) make it more difficult for the victim to have access to potentially relevant information. Two examples illustrate these goals.
First, in Step #5 on “taking appropriate action,” the attorney author throws in, almost as an aside, that
[i]t is important to document the discipline carefully, although specifics about the investigation should not go into personnel files.”
(emphasis added) I am sure that, depending upon who you ask, there are several reasons for this; and, perhaps some of them are even legitimate. But, surely one of the real reasons for this advice is that the personnel files are much easier for employees to access and, therefore, they would be easier to provide to a plaintiff’s attorney to assist him or her in evaluating the case. Keeping the investigation findings separate from the personnel file adds another layer of protection from future discovery. I am not saying the investigation and underlying material won’t be discoverable – it very well could be – but keeping it separate from the personnel file adds a further complication; a future plaintiff’s attorney must first determine the materials exist and then obtain them.
Minimizing damaging evidence
And second, tip #10 is disarmingly honest and aims at minimizing damaging evidence: “Be careful with texts and email.”
The evidence code contains a so-called “hearsay exception” for an “excited utterance,” something that someone blurts out in the moment, when emotions are running high (e.g. right after a car crash). [Sidebar: for non-lawyers, hearsay is lawyer-speak and means that the rules of evidence often prevent witnesses telling the judge or jury what another person said to them.] If you are curious, the excited utterance exception is § 90.803(2) Fla. Stat. and can be found here. The idea behind this “excited utterance” exception is that people are more likely to be truthful in the moment, when they have not had time to reflect on the situation and decide what is in their best interest to say.
This is similar to what the author is trying to get employers to minimize. She is telling the bosses-of-the-world to hold their fire on emails and text messages in the hours and days after the victim makes his/her allegation, or after the situation first comes to their attention. Put cynically, the advice is that the employer might be too honest in the moment, that he/she might reveal too much. So, the advice is to pick up the phone and refrain from putting anything in writing, especially when texts and emails are so easy to shoot off and will then be out there, as a great record for plaintiff’s attorneys to mine when ligation ensues.
Why am I telling you all this? Well, for one thing it’s important to realize what advantages (both structural and tactical) employers have, and to develop an awareness for them. After all, how can you hope to address and overcome them if you don’t know they exist. Also, every once-and-a-while what appears like an advantage for the other side can turn out to be, if not a liability, then at least an opening to exploit.