SEXUAL MISCONDUCT PART II: POLICIES AND INVESTIGATIONS

By William R. Thetford, Jr., Esq., and H. Robert Showers, Esq.

Last Fall, we wrote about how nonprofits, ministries, small businesses, and churches can prevent sexual abuse and handle allegations of sexual abuse if they arise. This was of significant interest to our readers as it is a very pertinent issue faced by many. This installment is part two in dealing with this challenging subject of sexual misconduct and focuses on the policy and investigation side of managing the risk.

Sadly, sexual misconduct is very pervasive. A national study performed in 2018 found:

• 81% of women and 43% of men report having been a victim of sexual misconduct.
• Verbal sexual harassment is the most common form, experienced by more than 3 in 4 women, and 1 in 3 men.
• 1 in 2 women and 1 in 6 men have alleged experiencing unwanted sexual touching.
• Men are most often the perpetrators. 85% of women and 44% of men report that the offenders were male. Female offenders are reported by 30% of men and 3% of women.
• More than 1 in 4 women and 1 in 14 men are survivors of sexual assault.[1]

As the statistics suggest, women in particular suffer as victims of sexual misconduct and harassment, and we know that the number of reported offenses is far less than the number actually perpetrated.

Recent history has revealed that a pronounced problem with sexual abuse occurs even within religious affiliations and institutions. Consider the following examples:

January 2002: The Boston Globe published their report on over 4000 Roman Catholic priests who faced allegations of perpetrating sexual abuse over the past 50 years, involving over 10,000 victims.[2] Much more has been revealed in the past decade regarding abuse within Roman Catholic churches.

December 2018: The Fort Worth Star-Telegram published an article exposing 412 abuse allegations involving 187 church and institutions related to the Independent Fundamental Baptist Church.[3]

February 2019: The Houston Chronicle published their six-month investigation into over 700 victims of abuse involving an estimated 380 leaders/volunteers within the Southern Baptist Convention.[4]

As these statistics and reports demonstrate, the problem of unaddressed sexual abuse and harassment is rampant, and the exposure is perhaps just begun. In light of that, it is crucial that churches, businesses, and nonprofits adequately prepare for these types of sexual misconduct situations if and when they arise within an organization.

When we discuss sexual misconduct, we are referring to two different categories of behavior: abuse of a child and sexual harassment of an adult. There are some actions churches and nonprofits can take to address both. However, each category also has its unique complexities requiring a tailored response. This article focuses on sexual harassment and policies addressing the same. For articles on preventing and responding to child abuse click here.

 Crafting an Effective Sexual Harassment Policy

A sexual harassment policy is vital to any business, church, or organization that has employees. There are many differences between the way for-profits and non-profits should operate; however, the need for a strong sexual harassment policy is not one of them. All employers will need one at this day and age, but you should consider a broader policy of anti-harassment that may include race, disability, religion, and retaliation. However, that is not the subject of this article. A strong sexual harassment policy is crucial for three reasons.

First, a good anti-sexual harassment policy may prevent sexual harassment in the first place. This policy will make clear to potential wrongdoers that this conduct has no place in your organization. Because sexual harassment deals in part with what is “welcome,” there is a great potential for misunderstanding between employees as to what kind of comments, jokes, or actions are appropriate or inappropriate, and what constitutes illegal sexual harassment. Your policy should clarify what actions constitute sexual harassment and how your organization will address those actions.

Second, if the policy does not stop someone from engaging in harassing behavior, this policy will help your organization to address the serious issue for what it is, protect the rights of the victim and the accused, and move forward.

Finally, implementing and following a strong sexual harassment policy may protect your organization from civil liability, should you be sued regarding a sexual harassment allegation. For certain hostile work environment sexual harassment complaints, it is an affirmative defense to liability for an employer if it can prove it had created a policy, communicated it to employees, and followed its complaint procedure. In certain other claims, the employer will not be held liable for sexual harassment that occurs if it shows that the employer took “immediate and appropriate action.”

Thankfully, a sexual harassment policy need not be particularly long to be effective. It may only be a few pages by itself or it may be a part of the broader handbook. However, there are several central aspects that any policy should contemplate.

1. The Policy Should Be Broad in Who It Applies to and What It Prohibits

In this policy make it clear that no harassment will be tolerated. Those who are found to have engaged in sexual harassment should be subject to discipline, up to and including termination.

Because there is a lot of uncertainty about what constitutes sexual harassment, define it for your employees so that there is no misunderstanding and no excuse. Federal government regulations define sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating,

hostile, or offensive working environment. 29 C.F.R. § 1604.11.

Your policy should be at least as broad, if not broader. You should also provide examples of what can constitute sexual harassment, such as:

• Unwanted physical contact or conduct of any kind, including sexual flirtations, touching, advances, requests for sex, or propositions;
• Repeated unwelcome requests for a romantic relationship;

1. • Verbal harassment of a sexual nature, such as lewd comments, sexual jokes or references, and offensive personal references;
   • Demeaning, insulting, intimidating, or sexually suggestive comments about an individual;
   • Graphic, verbal commentary about an individual’s body, sexual prowess, or sexual deficiencies;
   • The display in the workplace of demeaning, insulting, intimidating, pornographic, or sexually suggestive objects, pictures, calendars, or photographs; and
   • Demeaning, insulting, intimidating, or sexually suggestive written, recorded, or electronically transmitted messages (such as e-mail, text messages, instant messaging, and internet materials, including social media and social networking sites).

Sexual harassment can occur between individuals of the opposite sex or of the same sex.

In sexual harassment cases there is often confusion about how “consent” factors into the consideration. The standard is actually whether the actions or comments are “welcomed” by the individual and deemed as such by a reasonable person. Just because the victim does not immediately object, does not mean that it is not “unwelcome.” Your policy should note this. Sometimes individuals do not lash out when they are offended by sexual misconduct. Some victims may immediately object or they may be surprised by what they perceive to be brazen misconduct and not know how to appropriately respond.

2. Reporting Procedure

The second important feature of a sexual harassment policy is creating a procedure to handle reports of sexual harassment. Employees who believe they may have been sexually harassed need to know who to go to and how to make a complaint.

You may want to encourage your employees who believe they are being harassed to firmly notify the offender that his or her behavior is unwelcome. There are some situations where that will put an end to the behavior. However, this will not always be possible, especially when the offender has a position of power or influence over the victim.

The reporting hierarchy will depend on the structure of your business, nonprofit, or church. However, it is common to have employees notify their Direct Supervisor or Manager or Human Resources officer first and then senior executives if necessary. It is important to have multiple avenues of reporting in case the official who is supposed to receive reports is the one accused or ignores the report for any reason.

When an employee makes a report of sexual harassment, if possible, get them to give a written description of what happened. If they need to report it orally, the one receiving the report should document what was reported and, when and if possible, have the accuser agree to the documented statement by signing.

3. Investigation

Your policy should include the framework of how you will conduct investigations. Importantly, once you receive a report you have a duty to investigate it promptly. Promptness is important for a variety of reasons. It is much more difficult to determine what happened long after the fact and the organization is often only protected from liability for harassment undertaken by one of its employees if it took immediate and appropriate action.

You should also make it clear in the policy that you will give both the one who reported the abuse and the accused a fair investigation. Both the victim and the accused should be given the opportunity to present evidence to the investigator, tell his or her side of the story, and offer witnesses. You may want to indicate in your policy that employees will be required to participate with the investigation. There may be employees who are witnesses of the harassment but will not want to get involved in “office politics” unless you require them to talk to the investigator.

Some policies will reserve the right of employers to suspend employees (with or without pay) while the investigation is pending. You may offer the alleged victim paid leave or reassignment during the investigation for their own sake. However, you should not force them to go on leave or reassign them, because that will appear to be retaliation against the employee for making a report.

4. Standard of Evaluation

The policy should also address what happens once the investigation concludes, and how certain the investigator must be before discipline is undertaken.

There are five standards that are used in the American legal system. These are listed below in increasing degree of rigor and certainty:

• Reasonable suspicion
• Probable Cause
• Preponderance of the evidence (more likely than not) – used in most civil cases.
• Clear and convincing evidence
• Beyond a reasonable doubt – used in most criminal cases.

Reasonable suspicion and probable cause are used as introductory matters in criminal cases to determine when certain investigations can be conducted and when searches, arrests, or charges may be made. Preponderance of the evidence just means that there is more evidence in support of a claim than there is against it. Most civil cases are decided by that standard. Clear and convincing evidence is a more stringent standard. Finally, a criminal defendant cannot be convicted unless the evidence shows he is guilty beyond a reasonable doubt, the highest standard in American Jurisprudence.

When there is a debate over what occurred, the standard of evaluation may make the crucial difference at the end of the investigation. A well-publicized example is the difference between the two O.J. Simpson cases. In those two cases, one civil and one criminal, the same facts, same witnesses, and same defendant led to different results because the evidence did not rise to beyond a reasonable doubt in the criminal case but was enough to move past the preponderance of the evidence standard in the civil case.

A good policy will answer two questions: (1) What standard is necessary to begin an investigation? And, (2) What standard is required to find someone in violation and to exercise discipline? There should at least be reasonable suspicion in order to begin your investigation. But you need more than that in order to take appropriate disciplinary action against someone. Most businesses, organizations, and churches will utilize the preponderance of the evidence standard, but some will opt for the more rigorous test of clear and convincing evidence.

5. Confidentiality

Make it clear in your policy that the complaint and investigations will be handled confidentially to the extent practical and appropriate under the circumstances. You should handle with sensitivity the report of the victim, interviews with the witnesses, and other information the investigation produces. You should also avoid jumping to false conclusions of such a serious nature as well, which can result in defamation lawsuits. However, you will still need to relay information to the accused and other stakeholders. What you communicate and when is a good question to discuss with your legal counsel.

6. Prohibits Retaliation for Good Faith Reports

Your policy should prohibit any retaliation or retribution for making good faith of sexual harassment. Even if there is not enough evidence to support disciplining the accused, there should be no reprisals against the reporter if the report was made in good faith. You may want to address bad faith complaints. Fabricating allegations or lying during an interview may be its own cause for discipline or termination.

7. Consider Off-Premises Conduct

You should also consider whether your policy will apply to conduct amongst employees that takes place during non-work hours and outside of work. We recommend that whether it is a work-sponsored activity, or not, your policy should take a strong stance against any sexual harassment although it may not be actionable by your organization.

Investigating an Allegation

Once you have a policy in place, your organization is in a much better position. However, your organization must stand ready to follow the policy and respond shrewdly when allegations arise.

1. How to Receive Complaints

From an emotional intelligence standpoint, be open to receiving the complaint. Do not treat the problem as a nuisance created by the reporter. Do not criticize the complainant for making a complaint until you investigate it. Along the same lines, do not promise punishment for the accused until you have investigated.

Instead, explain the process of the investigation to the stakeholders and decide how the findings will be distributed. Help both the victim and the perpetrator know that you will conduct an objective and professional investigation.

2. Other Early Steps

At the beginning stages, if you have liability insurance, you may want to make a claim, review your policy, and see what will need to be done and when to maintain your coverage.

3. Choosing investigator

In accordance with the policy, your organization will need to take action promptly. The first major decision your organization will have to decide is who will handle the complaint. There are essentially three options available:

(1) conduct the investigation internally;

(2) hire an independent outside group to investigate (not a law firm); or

(3) hire an independent law firm to conduct the investigation.

Some minor complaints can be handled internally. However, sexual harassment is a sensitive subject and has the potential to become a highly charged issued with long-term ramifications for your organization. Moreover, conducting the investigation internally may subject your organization to real or perceived bias that may taint the process. For most serious allegations or allegations involving leadership, you will want to choose an independent agency to conduct the investigation. This may be more costly up front, but it may save your organization’s reputation, resources, and morale, if done right.

We do not recommend outside groups that are not law firms. These agencies do not represent the organization, and the organization’s communications and decision-making process will not be protected by attorney-client privilege or the standards of confidentiality that law firms are obligated to follow.

Instead, we recommend you find a law firm experienced in conducting these types of investigations, which will treat the matter with sensitivity and in accordance with the standards of attorney-client privilege and confidentiality.  Good questions at this stage for your legal counsel include what statements you make to the employees, the complainant, the alleged wrongdoer, and, if they come, the media.

4. Gather documentation

When investigating the accusations make sure to interview both the victim and the accused. Try to corroborate the claims of the witnesses with other evidence to try to verify what really happened. After reviewing this new evidence, you may need to re-interview the reporter and/or the accused.

How to address the individual who has reported the sexual abuse is a sensitive subject. It is important to get to the bottom of what happened so that appropriate action can be taken. However, the victim should be treated with respect, not harshness.

Document your findings and results but be mindful of what is written down because it could end up in court. As you go through the investigative process your primary concern is understanding what happened and how to respond. However, you should also be seeking to learn how this happened and what steps can be taken to prevent this situation from arising in the future.

5. Historical Investigations

Historical investigations of sexual harassment are much more difficult than investigating the recent past. These types of situations have garnered significant media attention recently with the allegations made against Justice Kavanaugh during his confirmation hearings, the Catholic Church cases, the Southern Baptist Convention cases, and the Penn State child abuse cases. Memories can fade over the years and it may be difficult to locate the relevant witnesses, documents, or other evidence.

Many of the investigation and policy principles discussed above will apply to historical investigations, but it may take more digging in order to reach the truth of what occurred, and when you do come to a conclusion, you may find that it is a bit hazier than an investigation of a recent event. One of the keys will be corroborating evidence. It may initially be the word of one against the other, but if you can independently confirm or contradict the details of the testimony you receive, you may be able to get a better picture of who is telling the truth, what was forgotten, and what really happened. Often, documentary evidence, which can be critical in corroboration, may be more difficult the longer the time period between the sexual misconduct event and investigation. It may be a complicated interconnected puzzle where one piece can help lead to another to get the whole clear picture.

Prevention

Every organization should seek to create legal policies, but also a culture, that will reduce the likelihood of sexual harassment occurring in the first place and address it if it does. The tone that you set and the employees that you hire will contribute to that culture, whether good or bad. The character of the person you hire is important. Are you hiring the next helpful employee or are you hiring someone that had to leave his last job for sexually harassing his coworkers? Appropriately screening employees (background checks, references, interviews) is a must in the arena of businesses or organizations that interact with minors (children’s ministry, schools, day-care centers, or other child-centered activities).[5] These kinds of screening techniques may also be helpful in preventing sexual harassment in other areas as well.

Also, regular training of new and regular employees on sexual harassment and the policy will help prevent and enhance the culture of trust and transparency. Ultimately, that culture will lead to better morale and better productivity. Also, you will retain better employees longer with such trust and transparency.

Conclusion

Whether you are a business, a nonprofit organization, or a church, if you have employees you likely need a sexual harassment policy. For sexual harassment policy templates or more information about how an attorney may be able to assist you in preventing sexual harassment at your work place, please contact us. An extended version of this article will soon be available for purchase, which includes sample policies. Feel free to reach out to us at info@simmsshowerslaw.com to order.

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Disclaimer: This memorandum is provided for general information purposes only and is not a substitute for legal advice particular to your situation. No recipients of this memo should act or refrain from acting solely on the basis of this memorandum without seeking professional legal counsel. Simms Showers, LLP expressly disclaims all liability relating to actions taken or not taken based solely on the content of this memorandum. Please contact Robert Showers, Esq. or Will Thetford, Esq. at wrt@simmsshowerslaw.com or 703.771.4671for legal advice that will meet your specific need or to set up a consultation. You can also contact them for conducting sexual harassment training and /or investigations.

[1]    Stop Street Harassment. 2018. “The Facts Behind the #MeToo Movement: A National Study on Sexual Harassment and Assault.” Accessed October 7, 2018. http://www.stopstreetharassment.org/wp-content/uploads/2018/01/2018-National-Sexual-Harassment-and-Assault-Report.pdf.

[2] Rezendes, Michael. 2002. Church allowed abuse by priest for years. Boston Globe, January 06. https://www.bostonglobe.com/news/special-reports/2002/01/06/church-allowed-abuse-priest-for-years/cSHfGkTIrAT25qKGvBuDNM/story.html.

[3] Nakahodo, Neil, Shelly Yang, and Sarah Smith. 2018. Spirit of Fear. Fort Worth Star-Telegram, December 9. https://www.star-telegram.com/living/religion/article222576310.html.

[4] Downen, Robert, Lisa Olsen, and John Tedesco. 2019. Abuse of Faith. Houston Chronicle, February 10. https://www.houstonchronicle.com/news/investigations/article/Southern-Baptist-sexual-abuse-spreads-as-leaders-13588038.php.

[5]   Showers, H. Robert. 2017. Minimize Child Abuse – How to do Excellent Background Checks for Child and Financial Protection – Part I. Simms Showers, LLP. July 12. https://www.simmsshowerslaw.com/minimize-child-abuse-how-to-do-excellent-background-checks-for-child-and-financial-protection-part-1/.