Seyfarth Synopsis: The natural inclination is to ignore attempts to dredge up claims of harassment that happened long ago. But no harassment claim is too old to investigate. Having strong anti-harassment policies and investigation procedures, along with a good work culture, can help employers avoid getting caught in the cross-fire of the “me-too” harassment dialogue.
The #MeToo movement has enveloped America. Women in every station of life—celebrities and ordinary folk alike—have broken their silence to report sexual misconduct. Often the allegations address conduct that occurred years ago, beyond any legal limitations period.
So what is an employer to do? Suppose an employee or former employee comes forward to say, “I was harassed 10 years ago by my supervisor and I want you to investigate!” What do you do? Do you have a duty to investigate? If so, how do you do so? And can you be liable for claims that invoke events occurring years ago?
The Legal Landscape
Someone suing for harassment unlawful under California law must show unwelcome verbal or physical conduct that was severe or pervasive enough to alter working conditions and create an abusive working environment for a reasonable person. Harassment plaintiffs suing under the California FEHA must first exhaust administrative remedies. That involves filing an administrative complaint within one year of the unlawful conduct and obtaining a right-to-sue letter. Once the letter issues, the plaintiff has one year to file a civil lawsuit.
There are three exceptions to the one-year rule: (1) someone who learns of the unlawful practice after the year may get a 90-day extension; (2) someone subjected to discriminatory violence or threat of violence (see Civil Code section 51.7) may get an extension of up to three years; and (3) someone victimized by unlawful practice while still a child can get an extension of up to one year after turning 18 years old.
How might the first exception come up, you ask? Well, say two employees make sexually charged statements via email about the complainant. She finds out about the emails a year or so later. Perturbed and believing that the emails have changed the terms and conditions of employment, she resigns and files an administrative complaint with the DFEH. While her claim would fall outside of the statutory period because the emails occurred than a year ago, her claim arguably might be subject to the 90-day exception because she learned of the “harassing conduct” when she learned of the emails.
Stale events can also be actionable under the “continuing violation” doctrine, if one part of the violation occurred within the limitations period. A violation can be continuing if the unlawful incidents that occurred before and within the limitations period were (1) sufficiently similar in kind, (2) occurred with reasonable frequency, and (3) did not obtain a degree of permanence. In other words, claims based on stale events can be pursued if they address timely events of a similar nature. Reasonable frequency refers to similar conduct that was not isolated, and permanency refers to whether the plaintiff was on notice that further efforts to end the unlawful conduct would be in vain.
Your Harassment Policy And The Legal and Non-Legal Reasons To Enforce It
A company’s interest in preventing harassment is moral and organizational as well as legal. Preventing harassment and fostering civility and respect in the workplace are the right things to do. And employers with strong anti-harassment policies and periodic anti-harassment training can create a culture of compliance, reporting, and remediation that will encourage employees to seek redress with the company instead of through social media or litigation.
Employer policies generally prohibit discrimination and harassment in the workplace and require, or at encourage, employees to report promptly the harassment they experience or witness, so that the incidents can be properly investigated. Policies usually do not impose deadlines on when an employee must report harassment or discrimination.
What Do You Do With A Complaint?
(1) Always try to investigate
So if a stale claim lands on your desk, what do you do? The short answer is always investigate—no claim is too old. Policies usually both encourage reports and do not impose time limits on reports, so live by your policy. Doing so enforces the policy’s integrity. Employees are more likely to follow policies if their employer holds itself to them.
A thorough investigation will lead to an employer’s best decision and will in any event support the reasonableness of its decision as part of any legal defense. And failing to conduct an adequate investigation, while not itself actionable, can undermine the employer’s legal defense. Failing to investigate a complaint—even a stale complaint—can also create exposure if the accused engages in further harassment against either the complainant or someone else the accused interacts with.
(2) Prompt and thorough investigations are key
Stale claims bring special challenges. Witnesses may no longer work with the company, and documentary evidence the complainant may once have had may no longer exist.
Nevertheless, like any investigation, the investigation of a stale complaint should be reasonably prompt and thorough. The complainant should be interviewed and the allegations impartially investigated. If the accused is no longer an employee, the employer should assure the complainant that the alleged conduct is not tolerated and should point to its policies for support.
After every investigation, an employer should follow up with the complainant to report the findings of the investigation and any remediation taken. The employer should ensure that any misconduct has ceased and that the complainant feels safe. The employer should also encourage the complainant to report any future incident of harassment and affirm that the complainant will suffer no retaliation for coming forward. And the employer should then revisit the situation with the complainant, after some reasonable interval, to ensure that there is no further complaint.