Investigating Claims of Workplace Discrimination
Hidden biases can take the form of assumptions we make or actions we take without recognizing the reasons behind them.
By Eric Gilkey
CLM’s Diversity and Inclusion Committee addressed these unconscious biases in a recent webinar.
Yvette Davis, an attorney with Haight Brown & Bonesteel LLP, where she is leader of the Employment & Labor Practice Group
Mike Sandulak, former FBI special agent and current health sciences principal investigator for the University of California Office of the President. *Although an attorney, he is not a lawyer for the university and does not speak on its behalf.
Sandulak says that we all carry unconscious biases with us that we might not understand. While at Quantico doing firearms training, he said that there were many scenarios on using a firearm in a split second that included targets of men and women. At the completion, it was clear that the trainees were less likely to use their firearms on women because most had an implicit bias that women don’t carry firearms.
“Discrimination claims are on the rise. I’ve seen an uptick in cases and, in conjunction with that, retaliation claims. Things get to the lawsuit stage because of lack of communication and the employee not being able to express themselves until it is too late.”
Davis says that when talking to a complainant, make sure to let them know that you’re addressing their concerns—and then make sure to get back to them and let them know the investigation is ongoing. She says leaving them wondering what is happening makes you a prime target for another lawsuit.down the line.
“As an investigator, you have to understand that you’re going to hear things that might not make sense to you and require you to remove your biases. For instance, in a domestic violence case, some victims want to stay in the relationship. You have to recognize that this is something that can happen.”
“In Vasquez v. Empress Ambulance Service Inc., the plaintiff received obscene photos and texts from a male coworker. When he realized that she was going to report him, he doctored some texts and used a racy image from another female and presented that to the employer so it looked like she was harassing him, and she was terminated.”
Sandulak says Investigations have to be consistent in terms of how things are documented, how statements are written, and how reports are prepared, especially for discrimination or harassment complaints because inconsistency doesn’t look good in the courts.
“If you know that an employee has a Facebook or Instagram account, don’t ask them for their password or have someone ‘friend’ them to get that information. Leave it to the investigator to deal with that because it could become an invasion of privacy issue.”
Want to hear more?
Go the TheCLM.org to listen to this and hundreds of other webinars.
Upcoming CLM Webinars
March 8, 2017
Litigating Your Civil Case with an Eye Toward Criminal Prosecution
March 22, 2017
Alternative Dispute Resolution
Creative Settlements: Out-of-the-Box Thinking to Obtain Resolution
April 19, 2017
The Contest of Consent: Challenging Consent Judgments
April 26, 2017
Steps to Take to Preserve the Subro Attorney Client Privilege
May 3, 2017
An Overview of the Transportation Industry’s Injury of Choice this Year: Reflex Sympathetic Dystrophy and Chronic Regional Pain Syndrome
May 17, 2017
The Dangers that Lurk in Claims Made Policies: Do They Protect the Insurer or Create Higher Costs?
May 31, 2017
Calculating and Adjusting Routine Loss of Rents Claims
Register and receive reminders for upcoming webinars at theclm.org/webinars