By Tod F. Schleier

Excerpted from Deposing & Examining Employment Witnesses

An employer’s human resources department generally is responsible for investigating employee complaints of harassment and/or discrimination; reviewing termination and other employment decisions made by supervisors; and, in corporate restructuring or layoffs, implementing and reviewing the layoff process to insure that federal anti-discrimination statutes are not violated. Therefore, in virtually all employment cases, the representative from the human resources department or the highest-ranking officer in the company with direct responsibility for the human resources function will be a key witness.

PRACTICE POINT:

Human Resources serves to protect the company.

Many human resources officials allow employees to believe that it is Human Resources’ job to protect them, when, in fact, the real job of Human Resources is to protect the company. Most people (plaintiffs, lay witnesses, jurors) are surprised to learn this. In the deposition of the human resources official, ask questions that allow the official to testify on the record to the fact that he is a “company man” and that his job, at all times, is to protect the company.

§3:41   H.R. Investigation of Harassment Complaints Determines Course of Litigation

As a result of the Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998), the manner in which an employer’s human resources department handles complaints of sexual harassment can be crucial on the issue of employer liability.

In Faragher and Ellerth, the Court held that an employer is subject to vicarious liability for a hostile environment caused by a supervisor, but the employer may raise an affirmative defense with respect to the reasonableness of its own conduct, as well as that of the employee/victim:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of evidence …. The defense comprises two necessary elements: (1) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Faragher, 524 U.S.at 807; Ellerth, 524 U.S.at 765. When the employee is subjected to harassment by a co-worker, a negligence standard applies. The employer will be liable if it knew or should have known of the conduct and failed to take prompt remedial measures to correct it. 29 C.F.R. 1604.11(d).

Although Farragher and Ellerth were both sexual harassment cases, the EEOC and several courts have taken the position that the same standards apply to all types of harassment. See EEOC Enforcement Guidance on Vicarious Liability for Unlawful Harassment by Supervisors, 6/19/99, at p.3; see, e.g., El-Hakem v. BJY, Inc., 262 F.Supp.2d 1139, 1150-51 (D.Or. 2003) (applying standard from Farragher and Ellerth to claim for race discrimination).

Thus, if (i) an employer has an adequate sexual harassment policy, (ii) its employees are trained about the procedures for reporting harassment to human resources, and (iii) the H.R. department performs an adequate investigation, the plaintiff likely will not be successful in a harassment case, other than a strict liability case against a supervisor. See Kohler v. Inter-Tel Technologies, 244 F.3d 1167 (9th Cir. 2001) (if employer satisfies affirmative defense, it may avoid liability even if harassment did occur).

PRACTICE POINT:

Policy is key to deposition.

Consequently, one of the important goals in any deposition of a human resources official is to interrogate the witness on the harassment policy of the company, how it was communicated to supervisors and employees, and what type of training supervisors and employees received about the policy. The goal is to elicit testimony demonstrating that the policy was not consistent with the mandates of the legal standard, that supervisors were not adequately trained about the policy, that it was not adequately communicated to the workforce or that it was not followed in the plaintiff’s case.

PRACTICE POINT:

Investigation file is discoverable.

Many times, the employer will hire counsel to conduct the investigation. The investigation is still subject to discovery, and the attorney-client privilege may be waived if the employer raises the Ellerth/Faragher defense. Martini v. Fannie Mae, 977 F.Supp. 464 (D.D.C. 1997); Johnson v. Rauland-Borg Corp., 961 F.Supp 208 (N.D. Ill. 1997); Wellpoint Health Networks, Inc. v. The SuperiorCourt ofLos Angeles County, 59 Cal.App.4th 110 (Cal.Ct.App. 1998).

Review Documents Before Taking Deposition

Before deposing the human resources representative you must obtain all relevant documents concerning the allegations in the plaintiff’s complaint.

§3:42     Sexual Harassment Cases

In a sexual harassment case, request documents concerning the plaintiff’s complaint of harassment to the employer and what the employer did after receiving the complaint. Specifically:

  • The complete personnel file of the plaintiff
  • The complete personnel file of alleged harasser, including all prior disciplinary action and prior complaints of harassment
  • The complete personnel file of the alleged harasser’s supervisor
  • The complete personnel file of the human resources official who conducted the investigation

       [This file may contain information as to the official’s background, training and continuing education, including any training materials received by the official at continuing education seminars.]

  • All company policies and procedures relative to sexual harassment, equal employment opportunity, affirmative action, and disciplinary policies and procedures during the relevant time period
  • All records of sexual harassment complaints and investigations performed by the human resources department during plaintiff’s employment, including copies of any charges of discrimination for sexual harassment filed with the EEOC or state civil rights agency
  • All training documents given to supervisory and non-supervisory employees on sexual harassment, including copies of all materials used in the training or provided to attendees
  • All documents prepared or obtained by the company concerning the investigation performed by the human resources department in connection with plaintiff’s complaint of harassment, including written statements, tape recorded statements, interview or other notes taken by the human resources official who conducted the investigation
  • All documents containing information as to the results of the investigation and any action taken by the company as a result of the complaint

§3:43     Reductions in Force (RIFs)

In a case involving corporate restructuring or layoffs, request documents that set forth the applicable policies and procedures that govern layoffs; the training supervisors received to assist them in implementing the selection criteria; and the actual rankings and ratings and statistical analyses performed by the employer. Specifically:

  • All documents and policies generally governing layoffs
  • All documents that demonstrate or explain the alleged business reasons this layoff was necessary
  • All documents generated by human resources regarding the selection criteria to be used to determine which employees would be laid off
  • All documents generated by human resources containing instructions and guidelines for supervisors to use when evaluating employees for layoff
  • All documents generated by supervisors and human resources reflecting the ranking and ratings of relevant employees
  • All documents generated by human resources reflecting any statistical analyses performed concerning the percentage of protected category employees selected for layoffs

§3:44     Individual [Wrongful] Termination

In a case in which the plaintiff alleges he was wrongfully terminated [or demoted or subject to some other adverse employment action], review the following documents to establish disparate treatment:

  • All personnel files of similarly situated employees who engaged in the same or similar conduct for which the plaintiff was terminated
  • Any EEOC or state administrative charges filed by any employee who engaged in the same or similar conduct for which the plaintiff was terminated
  • Supervisory or “desk files” of the decision maker
  • Human resources documents and files relative to the review of the decision to terminate the plaintiff
  • All employer policies and procedures relative to termination, demotion or any adverse employment action

[§3:45 Reserved]

Deposition Checklist

RIFCases

PRACTICE POINT:

Focus on the RIFprocess, rather than individual selection decisions.

In most reductions in force, the supervisor will prepare the ranking and ratings of the employees he supervised, and the human resources department will act as the “super-personnel department” which makes the final decisions and has the responsibility to insure that the statistics will not expose the employer to liability. Therefore, the deposition of the human resources representative will focus on the “larger” picture, rather than on how and why each employee was selected for the layoff.

§3:65     Preparation for Deposition

  • Documents reviewed in preparation for deposition?
  • Statistical analyses prepared by anyone
  • Personal notes
  • Notes taken by persons other than yourself
  • Memoranda prepared by yourself for counsel
  • Court documents
  • Discussions with people other than counsel in preparation for deposition?

§3:66     Training in Discrimination Issues

  • What protected classes are you aware of: race, sex, age, disability, Vietnam-era service, state or local law protections, e.g., marital status, sexual orientation, etc.?
  • How are these groups protected under the law?
  • Did employer provide special protection for any groups?
  • Nature of that protection?
  • Documents describe nature of that protection?

§3:67     RIFPolicies and Practices

Substance and timing of policies

  • What written policies were in force and effect concerning reductions in force?
  • Who prepared those policies?
  • Did counsel review those policies?
  • Were those policies prepared in anticipation of thisRIF?
  • Were there policies governing RIFs in existence before the subject policy?
  • Why weren’t earlier policies used in thisRIF?

Review policy at issue, step by step

  • What was to be done?
  • By whom?
  • When?
  • Was this done?
  • Documentation?

RIF training

  • How was Company President advised/trained concerning his responsibilities inRIF?
  • How was executive staff trained?
  • How were direct supervisors trained?
  • What training materials were used and who prepared them?
  • Training on how to use performance evaluations inRIF?
  • Training on how to evaluate employees in each category to be evaluated for employee selection?

§3:68     Statistical Analysis

Performance

  • Who performed?
  • Reason performed?
  • Source of information?
  • How was it performed?
  • Data analyzed and source of data?
  • Performed in-house?
  • Training and experience in performing statistical analyses?
  • Knowledge of statistics? Training in statistics? Courses taken in statistics?
  • Any textbooks or authoritative literature you consult when faced with statistical issues?

Results, generally

  • Results of statistical analysis?
  • Results expected?
  • Any concern about results of statistical analysis?
  • If not, why not?
  • Discussions with others [e.g., H.R. department, CEO, President] about results of statistical analysis?
  • Disproportionate impact on protected group
  • Concerns regarding numbers of people in protected classes who are laid off in proportion to representation of protected class in total work force?
  • Ever concerned with disproportionality among protected classes?
  • At what proportion do you become concerned?
  • Why?
  • Did you determine proportionality for [protected groups identified above, e.g., sex, minorities, age, Vietnam-era veterans, disabled veterans, etc.]
  • Results obtained for each category?
  • Did results cause you concern?
  • If not, why not?
  • Were the results reviewed by ABC’s Legal Department?

§3:69     Lay-Off Decisions

  • Who made final decisions as to who would be laid off?
  • Who made final decisions as to who would be redeployed?

§3:70     Hiring Policy/Programs

PRACTICE POINT:

Does hiring of one group lead to firing of another?

Many employers have policies or procedures to attract new college graduates to the workforce. Often, these policies result in older employees being laid off at the same time younger, newly-graduated employees are being hired. Explore this issue in deposition.

  • Knowledge of [e.g., Hiring College Graduates] program?
  • History and purpose of program?
  • Did employer have any [e.g., recently hired college graduates] employed at time ofRIF?
  • Were any let go?
  • Is there any reason a [college graduate] might not be let go?
  • Are there any [recently hired college graduates] employed who are over 40 years old?
  • Were there any employed at time ofRIF?
  • Did you support program? Why?
  • Did CEO support program? Did he say why?
  • How many times did you and CEO discuss college graduate program? What was said?

§3:71     Age-Related Comments

  • Any employee, at any time, make adverse age-related comment in your presence?
  • Any age-related comments reported to human resources?
  • Who complained?
  • What was nature of comment?
  • Did you investigate?
  • Results of investigation?

§3:72     Redeployment Team

PRACTICE POINT:

Was redeployment a sham or discriminatory?

Although an employer is not required to find other positions within the company for employees who may be laid off (i.e., to “redeploy” these individuals), the employer’s efforts should be explored. The evidence may demonstrate that the redeployment processes or procedures were really a sham and/or that discrimination occurred during this secondary process of the layoff.

  • Describe role with team.
  • What was team to accomplish?
  • When was it to accomplish those things?
  • Policies and procedures?
  • Was policy implemented?
  • Criteria for redeployment?
  • Was plaintiff(s) considered for redeployment?
  • Who was considered? Why?
  • How many people were redeployed?
  • Statistical analysis performed on age of those redeployed?
  • Results of analysis?

§3:73     Post-RIF Advertisements

  • Post-RIF advertisements for [plaintiff’s former position, e.g., engineers]?
  • Number of [engineers] hired afterRIF?
  • Ages of [engineers] hired afterRIF?
  • Identify persons [plaintiffs] who submitted applications afterRIF and their ages?
  • Were they hired? Why not?

§3:74     H.R. Director’s Compensation

PRACTICE POINT:

Financial incentive to achieve employer’sRIF goals.

Explore whether, as a result of the layoff, the H.R. representative received additional compensation in the form of bonuses, stock options, salary increases, etc. This line of questioning may demonstrate potential bias through financial interest or financial reward for reaching the employer’s desired result, i.e., getting rid of older employees.

  • Salary prior to ABC?
  • Salary starting at ABC?
  • Salary now? If greater, a description of pay increases.
  • Bonuses and stock options granted afterRIF?

Tod F. Schleier is a partner in the law firm of Schleier Law Offices, P.C. (www.azworklaw.com) in Phoenix, Arizona. He has practiced as a plaintiff’s employment lawyer for nearly three decades, litigating virtually every type of employment case against private employers and public entities in the state and federal courts of Arizona.

Mr. Schleier obtained one of the largest employment jury verdicts in Arizonaon a sexual harassment claim, in December 1991, for $2,385,000, in Schallock v. Heinze et. al, which was televised on Court TV.  Mr. Schleier has been recognized continuously by Best Lawyers in America since 1989.  He is the author of Deposing & Examining Employment Witnesses, from which this article is excerpted.