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Investigating Workplace Sexual Harassment

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Investigating Workplace Sexual Harassment

In 2006, social activist and author Tarana Burke introduced the world to the hashtag and phrase “metoo,” which provided a platform for thousands of employees to speak more candidly about sexual harassment and inappropriate behavior in the workplace. Many forms of sexual misconduct that were once tolerated by employees and employers, is no longer acceptable. Sexual harassment involving anyone from C-suite executives to hourly wage earners can expose an organization to great financial and reputational harm. In this program, counsel tasked with investigating sexual harassment allegations will learn how to implement preventative training and conduct comprehensive investigations. The program will review key steps needed to conduct a balanced investigation and help lawyers and investigators avoid the appearance of bias when dealing with an inherently sensitive subject. This course will also provide an overview of the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” the federal legislature passed by the U.S. Senate in February 2022.

Presenters

Judie Saunders
Member
Griesing Law, LLC

Transcript

 Judie Saunders- Hello, and welcome to Conducting Sexual Harassment Investigations. My name is Judie Saunders, and I'm a member of Griesing Law's Employment Practice Group. I have several years, over two decades of litigation experience representing adults and children who have been the survivors of physical, psychological, and sexual abuse. I speak, write, and teach frequently about this topic, and have released and co-authored the book "A War on My Body: A War on My Rights", which I was very honored to do with fellow women's rights activists.

In my capacity currently, as a member of Griesing Law, I defend public and private companies in lawsuits where there are allegations of discrimination, harassment, and retaliation. I'm part of the team that represents these entities also in conducting internal investigations. Today, here are the topics that we'll discover and our agenda. We're going to briefly look at the history of sexual harassment in the workplace. We're going to discuss interviewing complaining witnesses in sexual harassment investigations, how to address acts of retaliation, minimizing the impact that these allegations have on an organization's reputation, productivity, and culture, interviewing target witnesses, and also protecting their rights, and finally, the last topic that we'll discuss is emotional IQ, which is a necessary skill corporate councils should use when conducting internal investigations dealing with sexual harassment.

Turning now to our first topic, the history of workplace sexual harassment in America. Well, the history of workplace sexual harassment and misconduct began well outside the corporate walls. The war against sexual violence was fueled and started by African American women who demanded an end to state-sanctioned sexual violence. Going back as early, before, but some of the early documentation is after the 1866 Memphis Riots, where a white mob raped many African American women. These women summoned the courage to testify before the United States Congress, and in their testimony, these women sought to overturn laws that permitted not only policy and mindset, but sought to outlaw the legalized rape and sexual violence against enslaved black women, so that happened very early on. Those were some of the first attacks against the normalizing of harassment, misconduct, and violence. Later in the 1960s and '50s, African American women, through the Civil Rights Movement, sought to end the institutionalized and systemic control over the bodies and the lives of women.

This pushback and the speaking out against sexual harassment and sexual violence continued with the Civil Rights Act of 1964. That was an act to enforce the constitutional right to vote, and also gave and conferred the jurisdiction to the district courts of the United States of America to provide injunctive release against discrimination in public places. So the Civil Rights Act of 1964 provided a good foundation, really the first foundation, against what so many women activists sought to build, and that was now a new way and new laws that employees can use to fight against sexual harassment and violence, not only outside of business, but also within organizations and corporations. This Civil Rights Act, it was a landmark civil rights and labor law piece of legislation in the U.S., and as I was saying, it outlawed discrimination that was based on race, color, religion, sex, and national origin. It prohibited the unequal application of voting registration requirements, racial segregation in schools, public accommodations, and in the employment, in the workplace.

In the 1970s and '60s, workplace sexual harassment, that body of law, that jurisprudence was codified in several cases that were filed by African American civil rights activists who used the principles of the Civil Rights Act as a basis to file sexual harassment claims. Let's look at, briefly, some of this early case law that made it harder for misconduct, sexual misconduct in the workplace to continue. Early on in 1976, there was the case of Williams versus Saxbe, and in that case, it stood for the proposition that sexual discrimination, excuse me, it was sexual, it was improper to terminate an employee for refusing a supervisor's advances. That was now defined as sexual discrimination.

In 1980 in Alexander v. Yale, that was a court ruling that held that sexual harassment of female students, that is considered sexual discrimination under Title IX. A year later, in 1981, in Bundy v. Jackson, a federal appeals court held that workplace sexual harassment was, in fact, employment discrimination.

In 1981, excuse me, 1991, some 10 years later, it was, many say, the testimony of Anita Hill during the Senate confirmation of Supreme Court Justice Clarence Thomas, where she spoke of and testified about instances of sexual harassment and misconduct dealing with Clarence Thomas, that many credit Anita Hill for popularizing the term sexual harassment. In that time, in 1991, I was actually working for the Democratic Senatorial Campaign Committee, and that was one of the national committees that was housed in the DNC, the Democratic National Committee, in Washington, DC. I remember those hearings involving Anita Hill, and also having the, it was really an electrifying time, that, after those hearings, several women, upon hearing and understanding, and several of them witnessing the examination and the cross of Anita Hill, decided to actually run for state and federal offices. For example, I remember Patty Washington, excuse me, Patty Murray out of Washington state, being inspired by the account of what happened to Anita Hill, and saying that that was one of the reasons that she felt that she should run for office.

Similarly, in Illinois, they saw one of their first African American senators in Carol Moseley Braun, who was also inspired and thought that, and this is a collective, what I took from many of these politicians when they were running for office, their different speeches and what they said inspired them, but collectively, it was watching the hearings with Anita Hill and Clarence Thomas and believing that there were so many important issues, sexual harassment, being one of them, as being an inspiration and a reason why they thought that there needed to be more representation of women in these different areas, in these different spaces, and within business, within government. So Anita Hill, many believe, can be credited with that term, normalizing it, bringing it to the forefront in the minds and top of mind in America when we use that term sexual harassment.

Let's turn now to looking at what the current state is and the reality of sexual harassment, of this topic, this issue in war workplace culture. Is workplace sexual harassment just the cost of doing business and something that we need to just deal with? There is a quote that says "You can ignore reality, but you cannot ignore the consequences of ignoring that reality." So is it just something that we have to ignore?

Well, we may want to believe that workplace violence, assaults, and inappropriate behavior no longer exist and believe that individuals are correcting their behaviors and respecting the workplace as a place where men and women enter to do business free from insult, harassment, and violence, but, unfortunately, there are still cases every day that state otherwise. So to answer that question, can we ignore it, can we ignore sexual harassment, and is it the cost of doing business? No, it is not. It is not the cost of doing business, and it is not something that we can be ignored. And, actually, I believe and I'm hopeful that by the work by so many we saw early on looking at the history, so many activists and so many individuals and so many companies and allies within companies, I am seeing, so I started this work representing survivors and ensuring that individuals could press for and have their rights acknowledged and be awarded for any injuries or damages based on sexual assault or sexual violence.

Now I work with companies, and in the work that I do with companies, I am actually inspired, and I believe that so many in leadership roles are no longer believing that this behavior should be normalized. Let's look in 2007, in a case of Sanders versus Madison Square Garden, and that is when a NBA New York Knicks executive, a former executive, Ms. Browne-Smith filed a suit against basketball legend, who was then president, in the 2000s, of the New York Knicks and head coach Isaiah Thomas. Mr. Thomas was accused by Ms. Sanders of referring to her as, and this is a recording, so the words that he used were derogatory, and also, he was accused of soliciting sexual favors. Much has been said, even to this day, at the time of this recording.

Yesterday, I was reading up and was getting up to speed on congressional hearings that were held last week and we're talking about this is being recorded in April 2022, but with the was Washington Football Team, there are actually congressional hearings going on right now that have to do with allegations of sexual harassment within the front office, within the cheerleading, within many of the employment and employer workplace within the Washington Football Team. And Congress stepping in and holding these hearings, there being different settlements and different employees who are asking that this conduct stop and they be compensated for their injuries, shows that we are no longer normalizing this behavior. In the case of Sanders versus Madison Square Garden and the allegations having to do with head coach Isaiah Thomas, a Manhattan federal jury ruled in favor of Ms. Browne-Sanders and a jury awarded her 11.6 million in punitive damages. The parties later settled for $11.5 million.

In a recent case just two years ago in 2020 in the EEOC versus Tegra Medical, there was a settlement of sexual harassment, retaliation, and constructive discharge. And this case, that case, rather, resulted in the employer being required to also provide interactive training sessions that dealt with sexual harassment and retaliation. So many times courts are not only just fashioning awards to the plaintiffs who are suing on sexual harassment or retaliation based on just monetary awards, but also instructing that employers, that they must now engage the entire workforce with interactive training dealing with sexual harassment, so educating management, leaders, coworkers on sexual harassment and retaliation. So we're gonna talk, at some point, and we'll come back to that, talking about what exactly, how corporate counsels can fashion, really, as the court said in 2022 in the EEOC ruling, interactive and sexual harassment programs.

Actually, let's take a look at that now, because, really, the facts do not cease to exist because you ignore them. We cannot ignore sexual harassment, inappropriate behavior, and misconduct within the workplace. They will not go away. What does a successful sexual harassment, what does that program look like within your organization? If you're corporate counsel, you want to be sure that your successful program to address workplace sexual harassment includes the following: Trainings that are done early, often. They're interactive and in person. We are living in a day where Zoom, video conferencing, Teams, or whatever application you decide to use is common place. Many times it's out of convenience. So businesses and organizations in the metropolitan area that I'm recording this from, in New York City and where I also work in New Jersey, businesses have given up their office space, so now it's almost mandatory that employees, or employers are conducting meetings. What was once your Monday morning meeting is being conducted via Zoom, but a successful workplace prevention program with dealing with sexual harassment. Those should be done early, and by early, if you have a new employee that's being onboarded, they should receive the training.

Often, so it should be repeated for current or longstanding employees. It's interactive. Questions are being asked. Scenarios are being presented. Fact patterns, discussions are being had, and it's being done in person. If you no longer have space where everyone gets together, this may be the time and the place to hold a retreat in a hotel conference room, but you'll want to do it in person, albeit safely, if you are still masking up or if there's different policies regarding vaccines, but you'll want to try your best to have these being done in person. The trainings, they should reinforce the already established employer policies, and those policies, of course, will comply with any state and local laws. So this is the time, and if there is not currently a employer policy against sexual harassment, that is something that you'll want to immediately either implement, draft, implement, and create. There's many law firms that do that. We do that here at Griesing, but that's something that you'll absolutely have to have in place, and that will be the hallmark, the topic of your training, to review that.

You will, and as I was saying before, interactive. What do I mean that? You're providing examples of sexual harassment scenarios for your group that you're training to discuss, and these examples, they'll challenge the norms. You're going to, at this time, in that space, safe space of your training, you're going to be invoking controversy. You want to initiate a vigorous conversation during those trainings. Many times sexual harassment, and when employers get into trouble, both in workplace cultures being accepting of misconduct, and also investigations that go wrong and go awry, it's in the gray areas. It's in the areas where there can be not clarity. During your trainings is the time that you talk about that, and it's the time that you bring in someone, maybe to lead these trainings and to provide for your employees and provide for your staff a real understanding of where your company stands, where your organization, where they want their policies to be used, initiated, and the bright lines in gray areas. Clearly define sexual harassment for your employees within the workplace. The Equal Opportunity Commission defines sexual harassment as unwelcome sexual advances, it's a request for sexual favors or other physical or verbal conduct when submission to or rejection of the conduct affects an individual's employment, unreasonably interferes with an individual's workplace performance, or creates an intimidating, hostile, or offensive work environment.

That's the beginning of an understanding of what a company's policy will not tolerate. Very commonly, you will address retaliation. In fact, they often go hand in hand. If you have an allegation of sexual harassment, it's not far behind, many times, that there will also be an allegation against someone within your organization, that there was an act of retaliation. The EEOC reports for several running years, their most recent reporting, if I recall correctly, of 2020, the top two charges reported to the EEOC were sexual harassment and retaliation. "The danger of retaliation relies on a furthering, it's a furthering cycle of violence. The greater the defense," - excuse me, - "the greater offense is to allow for someone that's guilty to go unpunished." That's retaliation, and that's from Emily Thorne. I also remind you of this saying by Kilroy Oldster: "Hate springs from fear. Violence is based on hatred, and behind every hateful act, there is fear."

So when you have someone that may or may not have committed some type of sexual misconduct, workplace, behind that could be fueled retaliation, and that's some thing that you have to address. There has to be clearly written in the policies that retaliation is unacceptable. In a case that I dealt with not too long ago, the allegations had to do with harassment, psychological, emotional distress, but what was most prominent and most complained of, and really seemed to be what was getting out of control, not necessarily the initial act, but the domino effect, the verberations of retaliation, they were insidious, they were nonstop, and that's what was most complained about. So you have the seed, the initial act of harassment that was planted, but what was really bearing fruit was a nonstop act of retaliation every day. And it was really based on, as I was saying before, that fear, those quotes that I just stated. It was a fear that the target would be found out.

Now, in many ways, the act itself, while unacceptable, could have been dealt with. There could have been corrective measures. There could have been coaching and training that would've been done to rectify the situation. However, it was the later incessant, repeated acts of retaliation that really caused this target to run into trouble. The EEOC prohibits the punishment of both job applicants, or even employees who are asserting their rights to be including if they are alleging any type of harassment that they are protected, and it's unlawful. So corp counsels, within your policies, within your trainings, you remind. You're reminding and you're creating an environment where retaliation against both, and it's important, not only applicants, excuse me, not only employees, but also applicants, that you cannot retaliate against. You have to remind that retaliation is not permitted, and that includes retaliation for filing or being a witness to some type of allegation or complaint investigation. What if an employee is communicating with a supervisor or manager about discrimination, including sexual harassment, and if there's a form of retaliation, prohibited. If there's an employee who is answering questions during an investigation into allegations of harassment, if there is any form of retaliation, maybe that retaliation may come, like, suddenly the person that you are trying to have an investigation with, their immediate supervisor or maybe the target is reassigning that person or making it so that their schedule doesn't permit for them to participate in the investigation. Little forms of acts of retaliation that you have to be mindful of, because that is prohibited. Some other things, it's also prohibited if, under the EEOC, retaliation for employees who are requesting accommodation, so that goes a little a bit beyond what we're discussing in sexual harassment, but it's also something, an act that is prohibited.

Let's turn now to discuss a little bit specifically about the investigation itself and how a well conducted investigation results in minimizing harm to your company, to the employee productivity, and to culture. We are moving away from a toxic work culture and the bedrock, the shift that really allows us to move way from toxicity in our work cultures is how we set up first with our training and prevention programs, and then, if the allegations do arise, how do we effectively and efficiently and directly confront these allegations through the conducting of our interviews and the strategy for setting up the interviews, preparing reports. We won't discuss the preparing reports during this presentation, but all of these things being balanced, effective, efficient, and directly confronting allegations, that will minimize the reputational harm. That will minimize the decrease in your employee productivity. And also, that will minimize the toxicity that can fester in a work culture that does not knowledge sexual harassment and misconduct.

Let's look at interviewing the complaining witness. When you are conducting the interviews, it's key and it's important to have and build a rapport with the witness. Many times you can have a scenario, and I recall that by the time I had become involved with working with a complaining witness, they were so suspicious. They were really, you could tell from their very posture, from the way that they were presenting early on in the interview, they were annoyed, they were upset, and what I learned is that they had been telling, reporting this, and had no faith that I now, coming in at day, I can't recall, maybe two weeks in. I'm sorry, no, it was longer than two weeks. It was actually several months, that they wanted to know what was I going to do? And were there any real recourse that was gonna be taken? Interviewing the complaining witness, we said the rapport is essential. And the example I provided with the witness who entered and started the interview suspicious, frustrated, and believing that I was just another disinterested investigator, I quickly changed that and took control of the interview by employing what I like to think of positioning and body language. It is the sincere conveyance in what I did with this witness, that I am all in, both in ears, in mind, and in body language, conveying that to the witness.

During my work in interviewing witnesses of sexual violence, young children, I used to start those interviews, in the early 2000s, late 1990s, by having them come into my office. They would sit on one side of a desk and I would sit on the other side of the desk, very common. It was my office. I had the files, I had everything laid out in front of me, and I was taking notes. I like to think of myself as generally being friendly and making someone feel comfortable, but I quickly learned that that setting immediately made those young witnesses, and witnesses even into adults, feel as if they were in trouble. What are first memories of being in trouble with any authority figure outside of our house? That's being called into the principal's office. What's in the principal's office? Two chairs on one side, a large desk, and another chair where the authority sat in judgment of you. I learned that a huge obstacle in building rapport was that feeling of sitting in judgment while someone, a complaining witness, is telling you something very sensitive and something they truly believe in.

Thereon, what I would do is, after bringing the person into the office, introducing myself, I would pull up a chair next to, not across from. The interviews were conducted in a more, what I like to think and what I felt was, and I could tell this from the way subsequent interviews were, the rapport that was built and the exchange of what was going on, that we moved away that big desk, which was a physical obstruction, but more, it was being able to have that one-on-one, closer contact, professional, but closer contact with your interview subject. So removing those physical barriers. Be comfortable and use the correct language. So when you're dealing with sexual harassment, sexual misconduct, you may be referring to body parts. Don't use what may be in common parlance, you know, different words that are used. Use atomically correct language, and get used to that. You are doing an investigation. This isn't the time to be smiling or to be blushing. You want the witness to believe that you're conducting this and you're taking their allegations serious.

Another thing to consider when interviewing a witness who is alleging sex harassment, many times in the witness's mind, and also it may even be later construed, they may be what is characterized as a whistleblower, blowing the witness on conduct that has either been festering, maybe it's new. Hopefully, it's an aggravation in your workplace, but may have been festering and maybe something that's part of the overall culture. So this witness could be blowing the whistle, and in that regards, you may find these characteristics, that the witness will show they're nervous, guarded. In the example I gave before, they're guarded. They're fearing retaliation. Those fears can range from job loss to demotion, and also the loss of relationships. We spend several hours at work building relationships, even before the pandemic, especially when we were one on one. This is a place outside of your home and your family where you build friendships, so they also, someone that's complaining, a whistleblower, they may fear the loss of social and professional relationships. They may want to demand that they remain anonymous. Know your company's policy before walking into that interview. That's part of your investigation strategy, to be familiar with the rules on remaining anonymous. You many times can't promise that, because, should the investigation go further, you may have to reveal names. And so, those special considerations also, as part of your investigation strategy, understand the whistle blowing laws, not only company policy, but also of state and federal laws, and precautions not to ask questions that will make that whistleblower feel like the target. That's part of the questions that you would have drafted and be thinking about in your overall strategy. If there is a complaining witness, a whistleblower, there's also going to be a target of your investigation.

Let's turn now to interviewing the target and the protection of their rights. Allegations are just that, they're allegations. Your role as court counsel or part of an investigation team is to do that, conduct an unbiased, balanced, and fair investigation. Over the course of my practice, there have been instances where allegations have been conjured up, fabricated, and targeted toward individuals for reasons that have nothing to do with sexual harassment and misconduct. And it is your job to show through your investigation that you can be balanced, and not to enter any room, any investigation, with pre-conceived notions, an agenda, or an objective. A target or alleged wrongdoer should not be automatically characterized in such ways, such as difficult, guilty, or part of a problem. Be careful and look for these characteristics when dealing with a target. Just as a complaining witness may begin the interview being guarded or nervous, similarly, the target of investigation will be nervous, unsettled, and may need reassurances. In the mid-2000s, in interviewing, it was a video interview involving a target of an investigation, the conversation, and the investigation, when I say the witness was nervous, there was as an extended periods of time where the witness would drift off to talk about extraneous items, topics that had nothing to do with the investigation. And then there was a fluctuation between, also, the witness being angry that they were even being brought into this. They were vehement that these were all lies that were being made up about them, and I believed it was an attempt to distract from the line of questioning that I was pursuing. It may have been.

What I found helpful was to put down pen, paper, or computer, or whatever, and engage in a few reminders, because when you're gonna enter any interview room, you're going to have your customary introduction of who you are, what you're doing, what the investigation is about, but you may need to return back to those grounding type of scripts, so to speak, to redirect and reassure what is going on. We all can relate to being in a doctor's office or being in a surrounding where you have little to no control. Those situations are nerve-wracking. Those situations cause fear. For example, being in the doctor office, having to undergo a procedure or a surgery that you know nothing about. I have found that I have been easily calmed when you had a medical professional, a nurse or doctor, saying this is what's going to happen. This is what's coming next. This is the purpose. This is the goal. What happens if you travel and you get on a plane? What do you really look for? Can you imagine if the plane took off without anyone saying anything? You just, one minute you're sitting down or putting your bags in the overhead, and the next minute, the plane is speeding into the air. No, there are grounding measures that are needed, and that act as reassurances. Take your seat, buckle, and then, of course, the flight attendants going over the aircraft, the exit doors, and what to do in case of an emergency. Similarly, during your investigation, apply these similar reassurances. And when you have a target, it's important to understand and plan as part of your strategy for Upjohn warnings.

What are these warnings? Many of you will be familiar with them, but they're similar to what we refer to as civil Miranda warnings, and those Upjohn warnings remind the target witness of the organization's expectation, meaning that they are part, the target is part of an investigation. They should cooperate. They should tell the truth. That if there's anything the employer, excuse me, anything the employer tells you is confidential outside of the organization, but not within. And the organization has a right to decide when to disclose anything that's going on in the investigation or what's being told. This is just loosely what these Upjohn warnings are, and this is part of a Supreme Court case. And you're also going to be very clear to explain to the witness that the lawyer does not represent the employee. So that's very generally what the Upjohn warnings are. Many times, a target of an investigation will know that they're the target, and your line of questioning may cue them in that they're the target if they don't emphatically already know. And because of that, they could have some idea that, well, I don't have to speak, or I have a right under the Constitution, a Fifth Amendment right. Well, this is not the case when you're conducting a private or corporate or internal investigation, because we know that these Fifth Amendment rights, these apply to state actors, the government, a prosecutor. It doesn't apply in situations of internal investigations, so the actor does not have that Fifth Amendment privilege, and you would very calmly just remind them of their duty to cooperate, their obligation as an employee to cooperate.

So just moving on now, we talked in general about what you'll need to have effective investigation strategy, the rapport building with the complaining witness, removing any physical obstacles, understanding the characteristics that a complaining witness may bring into, being guarded, frustrated, nervous. Similarly, the characteristics that a target may bring into an interview, being nervous, wanting to assert Fifth Amendment rights, not wanting to cooperate, but there also may be the considerations when conducting or creating a strategy, be prepared and think about, especially in 2022, as many would say, we're winding down or coming out of this pandemic, but there still are instances in individuals who are requiring or requesting that their interviews be conducted via video, some type of video service application, Zoom, many others, Teams, Microsoft Teams, but others being popular applications used for the investigation. There are advantages and disadvantages to conducting an investigation of a witness, complaining witness or target. It can save your company travel time. It allows for more flexibility with scheduling. Witnesses can sometimes even be less guarded on video. They're at ease, they're in their home setting, they're in their surroundings, so think about that. Interviews, they're separated. The witnesses, the target, they're not near their coworkers. Other employees are not seeing them go into the conference room, you know, go into the principal's office, so to speak, the setting that we don't want, that overly formalized setting that is an obstacle to building rapport. So maybe that's one of the advantage when you think about your strategy of conducting it on video.

Of course, there's also disadvantages, and these are some of the things that you'll consider. The witness could record, secretly, the interview, which would result in a loss of work product. The witness could disclose the recording and it could harm the company, depending on the type of witness. There may be an undisclosed third party, for example, a friend, a family member or partner who's present somewhere in the room off of camera that you don't see, which would have an impact on attorney-client privilege. So think about those. Also what we know, tech or IT problems during the interview. You will think about that when evaluating whether to conduct a video. So those are just some of the considerations. Also an unsecure platform. If you haven't had an IT really secure and think about that, depending on the size and the money that the company has to spend on that, you'll want to think about the secureness of the platform that you use and investing in that if you're going to conduct a video interview, 'cause some of the final considerations, when we think about strategy and engaging in video interviews is how to make it safer.

So the type of interviewee or the type of witness is important. You'll think of is this witness, so beyond your complaining witness, the target, another witness who may have seen or been an ear witness to the harassment, you'll think about, are they still a current employee? And a current employee is definitely different when you're thinking about a video interview than someone who is no longer with the company and could pose a threat. They don't necessarily have any existing ties to the company still. And you also want to think about, when planning your strategy and whether to use a video, should you have a confidentiality agreement stating that only what the documents, if you're going to be exchanging or looking at documents during the interview, what they're for, the destruction of any hard copies that are being used via the video. So you're gonna want to think about that, and if any of the documents need password protection and whether the documents will not be forwarded.

Also part of the strategy, you are going to think about some of these things that will put everyone at ease, your witness at ease, target, complaining witness, or just a general witness to the harassment itself. You're gonna think about this part of your strategy is how do I work collaboratively with these witnesses so that I can and conduct the result? The end result which you want is a balanced and fair interview. You do that in the opening of your interview by establishing the flow, talking about whether the witness needs breaks, what will happen and how documents will be reviewed, what to do in the event of technical issues, go over that. Welcome any questions that the witness may have and ensure that they understand and know that this will be a professional interview that they're conducting, rather, understand and know whether, know the witness' prior background, both as much as you can find out personally and professionally about them. That's important for your personal strategy and also understanding the witness.

One of the final subjects that we're going to turn to as part of this presentation, and one that I have found over the years to be one of the most important skills is for investigators, corporate counsels, to have an understanding of emotional intelligence, emotional IQ. As attorneys, we can learn the Socratic method. We can learn litigation, contracts, transactions, the drafting, the construction, arguments, interrogatories, how to word them. Those are skills that can be learned. Those are skills that can be memorized, but what takes time and what you need a true appreciation for, and what will help you build that rapport, get illicit information to either substantiate or negate allegations of abuse is emotional IQ. Truth and investigation ease flow when we connect on a personal level with a witness.

So a little bit now about emotional IQ needed to investigate sexual harassment cases. According to VeryWell... So turning now to what is needed, this emotional IQ, this skill that corporate counsel and investigators should develop for conducting interviews. Let's look at that. According to the center, VeryWell Mind, psychologists refer to emotional IQ and this ability as emotional intelligence. Some experts even suggest that it could be more intelligent than IQ, raw IQ, in your overall success in life and in the context of this presentation, your success in an internal investigation. So what is this emotional IQ that you're going to begin to or further learn, sometimes referred to as soft skills? It is the ability to recognize, observe, and not react to your own strong emotions. Maybe that's anger, frustration. It's the ability to perceive and interpret, and also to have empathy and compassion when a witness is presenting strong emotions and they may look difficult, like they're being difficult during the interview. So you recognize that, you see it coming up, and instead of reacting in kind with anger, maybe slamming down a pen.

During one interview that had to do with investigating a very intelligent, very seasoned detective, it was extremely hard. This person, at the time, had several years of experience on me. I was a new attorney. I was young and I was asking very detailed questions about the way they conducted their interview and possible misconduct by law enforcement and by his officers that he oversaw. And as I sensed his anger and frustration rising, instead of using emotional IQ, using empathy and trying to understand, I met it with anger. And in fact, I thought it was better to out-anger him, so to speak, to become more enraged that he was upset because I was trying to do my job. Well, you can imagine how that went. Zero was accomplished, and in fact, I think that I had, if I recall correctly, it was another attorney that had to be assigned to the case. Rapport was absolutely destroyed, so that was one lesson early on, that when you are met during this interview process with strong emotions, that you have to have the ability to perceive, to see it rising in the witness, rising in yourself, naming it, calling it to yourself personally, silently to yourself, this is frustration entering, now, the interview. The witness is frustrated. I am getting frustrated, or there is frustration. Actually, I think that, really, emotional IQ calls for the separation of the I and not using that.

So what does that look like? There is frustration versus I am frustrated, versus this witness is being difficult. What emotional IQ would call for is not to cast judgment, which personalizes it. Instead, there seems to be some type of difficulty, not the witness is difficulty, not the witness, rather, is difficult. This allows you to better control, redirect the witness. One way to redirect when you see that there's anger, frustration, resentment, or guarded is to now put down whatever it is you're focusing on, the line questioning, and go back to maybe some type of, this seems like a good place. This is something you can say, there seems like this would be a good area to take a break. That conveys, those types of words, conveys your ability to have high emotional IQ and to have empathy toward the witness. Many time your witnesses, be it a target, the complaining witness. They are personally invested in this investigation. This investigation may be one of 10 or 20 that you are conducting, and all that you need to do, or think you need to do, is plow through, start drafting your report, and circulating it. That's not, this is personal to that witness, so many times you may have to take that extra two to three minutes to employ emotional IQ, to redirect and get you back on track. Understand that what may seem to be difficult or difficulty entering the investigation could be your own bias when dealing with that witness, and it could be, again, your need to get through the investigation. Remove that tension. Remove the barriers in yourself. And how do you do this? Maybe you need the break, and exactly that's what you may tell the witness, and then, in that break, you'll ask yourself, what is this witness fearing? Could it be termination? Could it be retaliation? Loss of personal or professional opportunity? You may need the break, and that's part of emotional IQ. That's a necessary skill that I encourage all attorneys, corporate counsels, or if you are an investigator, to begin to add to your skillset, when especially looking into this sensitive topic of sexual harassment and misconduct in the workplace.

As we wrap up, I leave you with some of these pointers and takeaways. Workplace sexual harassment, it is part of our culture. Historically, as we began the presentation, we know that, dating back well before businesses, corporations were recognizing this, that it was happening in our society and in the U.S. at large. Activists use different laws, civil rights acts, and different events in history, as we discussed, the Anita Hill hearing coined the phrase sexual harassment, and because of that, we are now becoming more aware. Continue that. Let's de-normalize. Let's deconstruct and let's remove sexual misconduct, which has been embedded in culture, and take it out of the workplace. Remove this historic harm. Implement is the second takeaway. Implement an active, interactive, in person workplace anti-sexual harassment program, a prevention program. Number three, create your investigation strategy, where you think about what to do with complaining witnesses who are guarded, nervous, considered whistleblowers, and also how to be fair and protect the rights, informing your targets of their rights that we talked about, those Upjohn warnings, be familiar with that. And then, the last thing to remember, and I encourage you to begin further cultivating or introducing into your skillset for investigating sexual harassment is your emotional intelligence, and that's a skill that you'll not only use in investigating sexual harassment, but throughout your entire practice as attorneys.

I enjoyed speaking to you about this topic, and if you have any questions or comments, you can reach out to me directly. And that's Judie Saunders, [email protected], and my office is located, if you want to write or send a comment, it's at 125 Half Mile Road, Suite 200, Redbank, New Jersey, 07701. Thank you so much for your time and for your interest in this topic. Be well.

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