Written Testimony of Michael A. Robbins

Introduction

Commissioner Feldblum, Commissioner Lipnic, and members of the Task Force, thank you for giving me the opportunity to address this Task Force. I am Michael A. Robbins, President of EXTTI, Incorporated. EXTTI stands for the three services which we perform: Expert Testimony, Training and Investigations.

With respect to these tasks, I have served as an Expert Witness in more than 500 employment matters. I have been retained by attorneys representing plaintiffs and also those representing defendants. Most often my testimony concerns efforts by employers to prevent harassment from occurring. This involves an analysis of employer policies, training, investigations and actions taken as a result of those investigations.

Along with the other professionals at EXTTI, I conduct training on discrimination and harassment avoidance - and also on how to conduct proper workplace investigations.

In addition, my colleagues and I conduct workplace investigations into harassment, discrimination, retaliation, and other workplace misconduct. Most commonly, these investigations are on harassment issues. I personally have conducted and/or supervised well over 500 workplace investigations. Currently, EXTTI is conducting seven workplace investigations for various types of employers. I have been conducting workplace investigations for more than 30 years.

Also, I have served as a Consent Decree Monitor in Federal District Court. In that capacity, my job was to ensure that the employers involved in those consent decrees maintained proper harassment-prevention policies, that employees were trained in harassment prevention, that proper workplace investigations were conducted into all harassment allegations, and that appropriate actions were taken as a result of those investigations.

In addition to the above, I am the current President of the Association of Workplace Investigators (AWI).[1] AWI is an organization throughout North America (the U.S. and Canada) comprised of both internal (i.e., in-house) and external workplace investigators.[2] Our members are attorneys, Human Resource Professionals, private investigators and other individuals who conduct workplace investigations.

Further, I am a Founder and a Past President of the Society of Independent Workplace Investigators (SIWI) - an organization comprised of outside independent workplace investigators.[3]

Unlike some of the individuals who have previously appeared before this Task Force, I am not an academic. Instead, I am a professional who is "in the trenches" dealing with harassment issues on a regular basis. Thus, along with my colleagues who are testifying here today, I believe I have a unique perspective into the types of individuals who commit harassment and the actions that might be taken to minimize that sort of behavior from occurring.

The Types of Individuals Who Commit Harassment

As someone who regularly investigates harassment allegations, I believe that I am in a position to identify the types of individuals who most often engage in harassing behavior.[4] Fundamentally, I believe that there are four types of individuals who I most often find engaging in harassment. I will present them in order of least problematical, to most problematical.[5]

First, are juveniles. These are teenagers and young adults who either are unaware of what constitutes harassment or, given their youth, simply don't care.

For example, currently I am an Expert Witness in a case involving a number of high school students at several interconnected high schools. These male students have been accused of harassment by young, female teachers. Fundamentally, the allegation is that there was a long-standing challenge during the course of which male students took underskirt photographs of young, attractive female teachers. Then, those photographs were distributed electronically among many members of the student body. According to what one student told an investigating police officer, the individuals taking the photographs would instantly become "popular and sort of infamous."

Employers hiring these types of individuals, are more likely to experience harassing behavior. Generally, these types of employers are those which have large workforces comprised of younger workers - particular workforces with high turnover. An example of this is certain types of restaurants.

Second, are employees who were raised outside of the United States or otherwise come from cultures in which the norms in this area are different than those in the U.S.

For example, several years ago I was asked to investigate harassment allegations raised against the President of a U.S. division of a European company. The President was accused of electronically distributing sexually explicit materials to other male and female executives. When I interviewed the President, he admitted to distributing the sexually explicit materials. When I asked why he did that, he told me, "It's okay in Austria."[6]

Third, are powerful individuals who feel that they can do whatever they want to do. Their belief is that they are above the law. These are high-level executives and other individuals who believe they have (and usually do have) a great deal of power over others.

This time, two examples:

Earlier this year, I was asked to investigate harassment allegations brought against a male Surgeon by his female Surgical Nurse. There certainly were disputes as to a number of the allegations. However, both parties agreed that, at some point, the Surgical Nurse clearly told the Surgeon to "cut it out" and leave her alone - essentially to stop his activities. A few weeks later, both attended the Medical Center's holiday party. Near the end of the party, the Surgeon sent a sexually-explicit text to the Nurse telling her how great she looked, asking her to stay after the party and detailing the sexual activities in which he wanted to engage with her. When I met with the physician, he admitted that the Nurse had told him to stop his activities toward her and he admitted sending the text a few weeks later. I asked, in light of this, why he had sent the text. He told me it was a "mistake" on his part. I asked him why it was a mistake. He explained that it was a mistake because if he had not sent the text, he would not be sitting in the investigatory interview with me. Clearly, he did not care about "right or wrong." He only cared about being involved in an investigation.

Another example relates to a situation where I was an Expert Witness for the EEOC involving harassment allegations in the janitorial services industry. Specifically, male supervisors were accused of harassing female subordinates. Generally, the female subordinates were Latina and were working in isolated conditions - cleaning buildings alone and well after normal work hours. The supervisors held a great deal of power over the females and, because of the isolation, were in a position to engage in inappropriate activities without others finding out about what was occurring.

Fourth, are individuals who understand what types of behaviors are prohibited, but simply can't help themselves. These are the most problematical individuals. Frequently, these are very intelligent individuals who understand "right from wrong" but nevertheless engage in harassing behavior.

For example, several years ago I was asked to investigate claims that a long-time Vice President of a corporation was engaging in harassing behavior. As I went through the allegations with him, he admitted much of the behavior about which he was accused. Then, about midway through the investigation, he said to me, "This sounds really bad, doesn't it?" In my opinion, he understood right from wrong, he just could not control himself.

Having provided my views as to the types of individuals who most commonly engage in harassing behavior, I will now turn to possible solutions.

Possible Solutions to the Harassment Problem

California employment discrimination laws are somewhat different than federal laws.[7] I believe that some of the additional requirements of California law, could be incorporated into federal law. These additions would ameliorate, but not solve the harassment problem.

Training and Policies

One requirement in California is that employers over a certain size,[8] conduct harassment avoidance training for supervisory employees. The law (and regulations) dictate the content of this training and specify that supervisors must be trained for two hours, every two years.[9] I believe that this type of training can help prevent harassment to a degree. However, my view is that the law should be expanded to include training for non-supervisory employees - though probably involving training of a shorter duration.

I believe that training can be useful with respect to those employees who, for one reason or another, do not understand what is prohibited by the harassment laws. Further, if properly conducted, employees will understand the employer's complaint processes. In addition, supervisory employees will understand that their obligation is to report harassment incidents about which they know, or suspect to exist.

Of course, such training should include a description of the employer's policies relating to harassment (and discrimination and retaliation) as well as including information about the employer's complaint procedures. Further, these policies should be distributed to employees on a regular basis. California law requires implementation and distribution of such policies as well.[10]

Unfortunately, this type of training will not impact individuals who believe themselves to be above the law or those who simply can't help themselves. Nevertheless, increased knowledge by the employees in the workforce as to how complaints can be made and what the employer will do in response those complaints, may help eliminate those types of harassing individuals from the workforce.

Investigations

Another requirement in California is that employers take "all reasonable steps" necessary to prevent harassment and discrimination from occurring.[11] This has been interpreted by California courts to require, among other things, that employers conduct proper workplace investigations into harassment allegations.[12] Further, the failure to take all such reasonable steps, is an independent violation of California law.[13]

Many federal courts have affirmed the duty to investigate as well.[14] However, federal law does not explicitly say this and the failure to investigate is not an independent violation of federal law.

In my opinion, explicitly requiring that employers conduct proper workplace investigations into harassment (as well as discrimination and retaliation) allegations would assist in preventing (or at least stopping further) harassment from occurring.

In this regard, the purpose of a proper workplace investigation is to determine what occurred so that the employer is in a position to take action as a result of that which occurred. So, in a harassment situation, the purpose is to determine whether the harassing actions occurred. Then, if the investigator reasonably determines that harassing actions did occur, the employer will be in a position to take appropriate action to stop further incidents from taking place.[15]

An additional benefit to a properly conducted workplace investigation is that it will demonstrate to employees that the employer takes harassment allegations seriously and that it responds to such allegations in an appropriate manner. This, then, will encourage employees to report incidents of inappropriate behavior so they can be dealt with by the employer.

As mentioned above, my view is that there are some employees who cannot or will not refrain from engaging in inappropriate behaviors. While properly drafted policies and harassment avoidance training may not stop actions by those sorts of employees, a properly conducted workplace investigation will. This is because, if those individuals are found to have engaged in harassing behaviors, the employer will be in a position to eliminate them from the workplace - thus stopping future incidents from occurring.

Summary

Having identified the types of individuals whom I believe most often engage in harassing behavior, I have done my best here to offer potential solutions which, if properly implemented, will help eliminate improper actions.

Again, thank you for giving me the opportunity to address this Task Force.

Respectfully Submitted,

Michael A. Robbins