A California Court has held that an investigative report in a sexual harassment complaint against a public school teacher is subject to disclosure under the Public Records Act

The case is Marken v. Santa Monica-Malibu Unified School District

A high school teacher was accused of sexually harassing a 13 year old student.  An outside investigator issued a report finding that the School District’s sexual harassment policy had been violated. Two years later a parent requested disclosure of the report under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.)  Marken filed a  complaint alleging disclosure of his personnel records was not authorized under the CPRA and would violate his constitutional and statutory rights of privacy.  The trial court found against Marken and the appellate court affirmed, finding that the public interest in disclosure of the report outweighed Marken’s privacy interests.

http://www.courtinfo.ca.gov/opinions/documents/B231787.PDF

“Being right is necessary but not sufficient. We also strive to be impartial. We are agnostic as to where a story may lead; we do not go into a story with a preconceived notion. We do not manipulate or hide facts to advance an agenda. We strive to preserve our independence from political and economic interests . . .”
 Bill Keller in the Magazine section of today’s NYT. 

He was writing about journalists, and the New York Times, but substitute “investigation” with “story” and you get my own opinion on the workplace investigator’s role.  Staying impartial and avoiding any influence from others can be challenging, but it is crucial that we do so.

http://www.nytimes.com/2011/03/27/magazine/mag-27lede-t.html?ref=todayspaper

A recent US Supreme Court decision – Staub v. Proctor Hospital, reinforces why employers need to do a truly independent investigation before taking serious disciplinary action. Staub was discharged based on his supervisor’s write-ups regarding attendance. But it turned out his supervisor had an anti-military bias and had made it difficult for Staub to take time off to fulfill his obligations to the Army Reserves. The court found that the employer was liable because it relied on the facts provided by the biased supervisor. The moral, make sure someone who is really independent reviews the facts.

Sue Ann Van Dermyden is presenting a three hour seminar on writing the investigative report.
March 17, 2011, 9:00 a.m. to 12:00 p.m., JAMS ADR, 707 Wilshire Blvd., 46th Floor, Los Angeles.
March 18, 2011, 9:00 to 12:00, 1233 Preservation Park Way, Oakland.
To register go to: CAOWI

www.caowi.org
CAOWI Members $120. Sustaining Members $60. Register early–space is limited.

I keep thinking of Anita Hill and Clarence Thomas. Nineteen years ago the nation was riveted to the type of drama that unfolds before me every day. How do I, and how does the public, decide about truth telling? So often I hear people say “it’s he said/she said and so you can never determine who is telling the truth.” But we must be able to determine “truth”, and take stands, without a direct witness. Too often that elusive witness simply does not exist. Workplace investigators like me have to carefully weigh evidence and come to a conclusion, realizing we can’t be a guarantor of the truth. In the case of Anita Hill, had politics not been paramount, I think the weighing would have militated for a different result. This new witness helps to confirm that.

Should he have been fired?  Not if that was the only thing he said.  Was it problematic?  Yes and no.  It’s good to admit fear and bias.  But to blame it on someone’s “choice to identify” as a Muslim, is a problem.  The choice not to assimilate should not make someone suspect.

What I find disturbing about the media attention to the Kentucky senate race between Rand Paul and Jack Conway is the fact the criticism of Paul’s antics, while a college student at Baylor University, focuses on whether he trivialized religion by forcing a woman to worship a god called “Aqua Buddah.”  The fact that is alleged to have tied her up and driven her to a remote area, prior to forcing her to bow down in worship, has been ignored.  Last time I looked that would be considered kidnapping and assault.  When did the American public become more concerned about worshipping false gods than assault?  And while the religious aspect can be explained by youth, can kidnapping be explained away so easily?

Amy Oppenheimer
is a leading expert in the field of
workplace harassment and retaliation.

Co-author of the book
Investigating Workplace Harassment: How to be Fair, Thorough, and Legal.
published by the Society for Human Resource Management (2003).

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