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Posted by Amy Oppenheimer on February 17, 2014

Chicago Tribune Article about State Treasurer sharing hotel rooms quotes Amy Oppenheimer

Here are excerpts from the article:

State Treasurer Dan Rutherford routinely roomed overnight in hotels and a Chicago apartment with a low-level treasurer’s office employee whom he has given a 50 percent pay hike, raising questions about the workplace judgment of the Republican candidate for governor.

Amy Oppenheimer, a California attorney, investigator, government consultant and expert witness on workplace harassment issues, said, “Supervisors and subordinates need to have a certain amount of professional distance so that a supervisor can take action that the subordinate may disagree with and to ensure that they’re not friends.

“And sharing a room with someone is an intimate friendship activity, not a supervisor/subordinate activity,” Oppenheimer said.

“Let’s say this assistant didn’t work for the state and was just a campaign employee and they shared a room, it’s probably not so much of an issue,” Oppenheimer said.

“But then it bleeds into the fact that this is a state employee and how much choice does a person really have?” she said. “It’s about trying to sort of understand what people can comfortably say no to and what they can’t. And it certainly brings up the appearance of potential impropriety.”

You can read the entire article here:


Posted by Amy Oppenheimer on January 20, 2014

A Biased Investigation Is Worse Than No Investigation At All!

Workplace investigations continue to be a hot issue for the courts.  On December 23, 2013, a Federal Court in Connecticut, in an age discrimination case against IBM, precluded evidence of an internal investigation that found IBM had treated the plaintiff fairly.  IBM wanted to show it did a fair investigation and that based on the investigation it acted properly in terminating the employee.  However the court found that the probative value of entering that investigation into evidence did not exceed its prejudicial effect, because it was one sided.  The court determined that the investigator was not neutral due to his failure to interview witnesses who might support the plaintiff’s contentions and due to the focus on plaintiff’s job performance, rather than his allegations of age discrimination. In conclusion, the court found that “There is also reason to suspect that the purpose was to exonerate IBM more than to determine if Mr. Castelluccio was treated fairly.”

When I review an investigation like this I have to wonder if the investigator thought he/she was being impartial.  Without a constant check on our own biases it is all too easy to work toward a foregone conclusion, and one that confirms what the employer thinks to begin with – this is what is meant by confirmation bias.  Only by truly looking at all sides, and carefully weighing that information, can an investigator come to a fair conclusion.  And it may mean delivering news an employer does not want to hear.  Perhaps, in this case, if the investigator had really considered the employee’s side of things, he would have come to the same conclusion.  But without his doing so and making that clear by whom he interviewed and what he considered in his report, this investigation made things worse, not better, for the employer.

This case underscores the need for employers to ensure that the investigations they are conducting are truly fair and unbiased. A biased investigation may come to the result the employer hopes for, but be more costly in the long run.  Employers should carefully consider bringing in an outsider when they do not have the internal resources to do a truly fair and unbiased internal investigation.

The case is Castelluccio v. International Business Machines Corporation, 2013 WL 6842895.

Posted by Amy Oppenheimer on October 8, 2013

Preventing Unintentional Discrimination

A recent public radio program on “Inspiring Girls and Women to Code” addressed the disheartening reality that while women were 38% of the computer workforce in the 1980’s, that percentage has been nearly cut in half today.  (Forum with Michael Krasny, September 9, 2013  http://www.kqed.org/a/forum/R201309091000 )

The program’s guests focused on strategies and programs designed to engage girls and women in the world of science, technology, engineering and math – but also cited institutional barriers to female participation.  One caller listed successful strategies for increasing women speakers at conferences, including simply making the call for proposals process anonymous.

This is the same strategy famously used to raise the percentage of women orchestra musicians from about 10% in the 1970’s to 35% in the 1990’s.  Much of this gain was attributed to “blind auditions,” where a screen prevents judges from seeing the musician, so that their decision will be based solely on hearing the music.

Is it still necessary to employ such strategies?  Yes, according to Shelley Correll, at Stanford.  She cites studies showing that hiring committees still let bias get in the way of impartial decision-making.   For example, a group of raters evaluating candidates for a faculty position were provided resumes that were identical except that half showed female names and half showed male names.  The result?  79% deemed the male worthy of hire and 49% deemed the female worthy of hire.

Prof. Correll lists organizational solutions, including:

  1. Educating people about how stereotypes work;
  2. Establishing clear hiring and promotion criteria before looking at candidates;
  3. Ensuring that the criteria are relevant and non-discriminatory;
  4. Holding decision-makers accountable by requiring them to explain their decisions;
  5. Transparently measuring and reporting who is being hired and promoted; and
  6. Publicly vouching for the competence of leaders from underrepresented groups.

(http://leanin.org/education/creating-a-level-playing-field/ )


Posted by Amy Oppenheimer on January 30, 2013

California Court Finds Good Faith Investigation Prevents Liability for Terminating Employee

A California Appeals court affirmed the granting of summary judgment in favor of an employer who terminated an employee based on findings from an investigation. In the investigation, an outside attorney/investigator found that the employee had violated the employer’s sexual harassment policy and had not cooperated with the investigation. Based on these findings, the employee was then terminated.
The case is McGrory v Applied Signal Technology 

The court found that the employee was terminated for legitimate nondiscriminatory reasons, and therefore his lawsuit could not go forward. In doing so the court cited the Cotran case, pointing out that this employer had a reasonable and good faith belief that the employee engaged in conduct that violated its rules. Therefore, whether or not harassment (or rule violations) actually occurred is irrelevant. The McGrory court also found, in deciding a defamation action in the case, that the employee would have to show more than mere negligence in the investigation in order for the requisite finding of malice.

What does this mean for investigators and employers? This is more assurance from the California courts that if an employer, acting in good faith, conducts a fair, thorough and impartial investigation, it will not be held liable for taking action based on that investigation.

Posted by Amy Oppenheimer on November 5, 2012

Racial, Ethnic and Religious Harassment at Work in 2012

Two recent cases on racial, religious and ethnic origin harassment speak to how far we have come and how far we have yet to go.

In May v. Chrysler Group, a U.S. Court of Appeals case originating in Utah, there was very serious ethnic origin and religious (anti-Semitic) harassment over a prolonged period of time.  This case demonstrates that serious racist threats and hatred still permeate some workplaces. The court found that the employer’s response was “shockingly thin as measured against the gravity” of the harassment.  The decision is a good primer on an employer’s duty to respond to anonymous harassment and step up that response when initial efforts are unsuccessful.

In EEOC et al. v. Holmes & Holmes Indus., Inc., a decision from the United States District Court, also from Utah (what’s up Utah?), the few African American employees were barraged with repeated use of the “N” word.  The employer argued it was not unwelcome, given the rap lyrics these employees listened to.  The EEOC didn’t buy that argument and found that the undisputed allegations amounted to harassment as a matter of law.  It also found the Faragher/Ellreth defense was not applicable because the employer’s harassment policy directed victims of harassment to complain directly to their supervisor, even when the supervisor was the harasser.  This employer was also taken to task for failing to take disciplinary action against the harasser.

Lessons learned?  While workplace harassment based on race, religion and ethnic origin is unfortunately not a thing of the past – courts will take it seriously and expect employers to have proper policies and practices in effect.  Any notice of harassment should be rapidly and thoroughly investigated and reasonable action to prevent further harassment should be taken.