"I wanted to pass along to you that he (client)
was really delighted with your work; the case
settled this week, so smiles all around. He
thought you were really effective at interviewing
the employees and getting a full report."
Marshall Fuss, referring attorney
good business sense for employers to provide a workplace free of
discrimination and harassment. Happy employees are productive employees!
Also, the Civil Rights Act of 1964 (commonly referred to as Title VII)
and subsequent federal, California and other state legislation guarantee
employees the right to work in an environment free of discrimination and
that mean? It sounds easy, but...
In 2017 the
more blatant forms of discrimination have receded (for instance, few
employers will tell a woman that she will be paid less because "a man
will take care of her?"). However, is it possible that confusing,
perhaps more subtle forms of bias or discrimination exist? If a woman
loses a promotion to a man, might she think that "they just gave it to
the good old boy." Or, if a person under 40 is hired, might the
candidate who lost out (and is over 40) think "they gave the job to her,
because she’s younger, less expensive and I’m older and command more
money?" If a woman who performs the same work as a man, has the same
education, experience and background yet makes less than a man, might
she be a victim of equal pay discrimination?
Increasingly, when individuals who are in one of the protected
classifications ("race, religion, color, creed, national origin, age,
veteran status, disability, and gender"), or pregnancy, gender identify,
and/or a self-identification with a minority group, perceive that
employment actions were taken as a result of their classification or
status, they question why. Many believe that the action was taken
because of their classification, status, or self-perception of being in
a minority group.
complicates matters is that most laws (specifically Title VII) state
that any form of retaliation or reprisal against an employee for having
raised discrimination or harassment (whether found to be legitimate or
illegitimate) is a more serious infraction than the underlying claim. Thus, managing these matters in a neutral manner is extremely important.
And, it’s not always easy to do so on an in-house basis.
employee expresses that she or he has been the victim of discrimination
and/or harassment, the employer must investigate. Gone are the
days when an employee can go into a supervisor’s office and ask to off
the record, and then spend time venting about the unfair treatment he or
she is receiving from someone else. Responsible supervisors
respond, as follows: "If this is about your feeling harassed or
discriminated against, no, I cannot talk to you off the record. I
will need to report the conversation to HR, who will then investigate
How OEG Can Help
We offer three important services when your
organization has a harassment or discrimination matter:
Before the matter has risen to the level of a complaint, we serve
as a neutral party that employees can call to discuss when they "feel
uncomfortable" and/or might perceive they have been a victim of
harassment or discrimination, to help determine whether an
investigation is called for;
We serve as the third-party neutral investigator, often by request
of a lawyer handling the matter (which then protects the investigative
report as attorney-client privilege), impartially interviewing the
parties and any individuals the parties identify who might validate
their claims, and writing a report; and
We serve as expert witnesses should the matter go to an administrative
hearing or to court.
The investigation commences with an interview
with the self-identified victim, seeking the factual basis of his or her
feelings or perceptions. We conclude by asking who else we should
interview who can verify the "acts and facts" conveyed by the victim.
Next, we interview the so-called perpetrator, asking him or her to relay
the acts and facts from his or her point of view. We conclude by
asking him or her who else we should speak with, to verify or validate
his or her recounting of events. We interview those named, along
with those who might have knowledge of the situation. At the end,
we write a comprehensive report with recommendations.
We have conducted third-party, neutral
interviews on sexual harassment matters (including men alleging women
have been the harassers; age discrimination claims; race discrimination
matters; and equal pay claims. (In 2016, California SB 358 took
effect, making it the toughest law in the nation on gender equal pay.
In 2017, it was expanded to include race and ethnicity.)
Examples of OEG's Recent Results Demonstrate Neutrality
We have conducted
third-party, neutral interviews on sexual harassment matters (including
men alleging women have been the harassers; age discrimination claims;
A male worker accused three females
sexual harassment; he expressed concern that no one else might have
overheard the offending comments and that in a “three-against-one,”
he would not be believed. All three women denied the allegations.
After interviewing 13 individuals, the “acts, facts and events”
relayed by the male were validated. Conclusion: the three
women committed sexual harassment.
female alleged age discrimination, contending that her new
supervisor was under 40; that the new supervisor had different
performance expectations and measurements than her former supervisor
(who was over 40); thus, the individual was being disciplined as a
result of age discrimination. After interviewing 12
individuals, the reportable acts, facts and events were not
validated. Conclusion: age discrimination did not
occur; however, training for the new supervisor was recommended.
over the age of 40 alleged age and race discrimination by the owner
and his son (who managed the business); the son was under 40 and of
a different race. After interviewing up to ten individuals, the
majority of which were identified by the gentleman alleging
discrimination, the facts could not be validated. Conclusion:
age and race discrimination did not occur; supervisory training was
recommended throughout the company.
A woman who performed the same tasks, duties, and job functions as a
man; who had similar experience; and possessed greated educational
credentials, was making less than her male counterpart, alleged a
claim of equal pay violation . After investigating the matter,
the woman's allegations were borne out. Conclusion: she
was a victim of unequal pay under California's SB 358.