MCLE Self-Study: the Meaning of "Due Process" in Harassment Investigations



MCLE Self-Study: The Meaning of "Due Process" in Harassment Investigations

By Amy Oppenheimer and Alezah Trigueros

Amy Oppenheimer leads a law office focused on workplace investigations, training, and mediation of workplace disputes. She is co-author of Investigating Workplace Harassment: How to be Fair, Thorough, and Legal, (Society for Human Resource Management, 2003), and is the founder of the Association of Workplace Investigators, Inc. (AWI). Alezah Trigueros, an associate at the law offices of Amy Oppenheimer, investigates workplace harassment and misconduct and allegations of sexual assault in schools and universities, both public and private. Ms. Trigueros also conducts workplace assessments.

I. Introduction

The #MeToo movement shone a light on the pervasiveness of sexual harassment, bringing into the public consciousness the breadth and scale of harassment faced by women in the workplace, in educational institutions, and in their private lives. The movement has also placed increased pressure on employers and educational institutions to address harassment occurring in those settings and to take action against individuals found to have engaged in prohibited conduct. This in turn has led to concerns regarding the rights of those accused of engaging in sexual harassment and questions of whether the investigations and adjudications of harassment complaints in employment and educational settings afford due process to the accused.

There are two different standards of due process in the context of the investigation and adjudication of harassment complaints in the workplace. In the private sector, where employees are generally at will, the accused does not have formalized due process protections. However, case law, discussed below, sets forth some basic due process rights under these circumstances. In the public sector, there are greater due process protections because public employees have a property interest in their jobs and the government is constrained in its ability to deprive an individual of a property interest. A third, more stringent standard of due process is evolving in educational institutions that receive federal funding. Recent cases have also imposed more stringent procedures in sexual assault cases that have not been applied in an employment setting but are nevertheless instructive of how these issues are viewed.

It is noteworthy that harassment differs from other types of misconduct due to the significant impact on the individual being targeted. Other terminable conduct, such as poor attendance or poor performance, does not impact other employees in the manner that harassment does. And, importantly, employers have legal duties to protect other employees from harassment. Because of this, when it comes to harassment cases, a heightened level of due process may conflict with an employer’s affirmative duty to prevent and respond to workplace harassment. If heightened due process rights lead the target of harassment to feel unprotected, it could result in fewer targets of harassment bringing forward complaints, and result in these employees either suffering the harassment or leaving the employment.

This article examines the processes that afford fundamental fairness to employees who are accused of harassment and argues that an evidentiary hearing is not necessary to provide fundamental fairness to the accused. Rather, a thoroughly conducted workplace investigation provides a process that is fair to both the targets of harassment and the accused.

II. Procedural Due Process

Due process represents the broad concept that our laws and how they are enforced must be fundamentally fair. The right to due process is referenced twice in the U.S. Constitution in the context of government actions. The Fifth Amendment states that no person "shall be deprived of life, liberty, or property, without due process of law." The Fourteenth Amendment states that no State shall "deprive any person of life, liberty, or property, without due process of law."1

There are two types of due process: procedural due process and substantive due process. Procedural due process, the focus of this article, refers to the fair procedures that the government must adhere to before it can deprive a person of life, liberty, or property. Substantive due process, on the other hand, protects against the deprivation of a fundamental right.

III. Due Process Rights of Public Employees

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In the workplace, it has long been established that public employees have a property interest in their jobs and, therefore, for a government actor to deprive an employee of that property interest (for example by terminating the employee or suspending the employee without pay), due process must be afforded. For example, in Arnett v. Kennedy2, the Court held that due process protected the right of a non-probationary federal civil service employee to continue his position absent just cause for dismissal. This also holds in public education. In Goss v. Lopez3, the Court found that "[h]aving chosen to extend the right to an education," the State could not "withdraw that right on grounds of misconduct, absent fundamentally fair procedures to determine whether the misconduct has occurred."

Having established that the government cannot deprive individuals of their protected interests without affording a fundamentally fair process, the question is what that due process entails. The Constitution does not outline a mechanism for due process. Rather, legislation and judicial precedents have, over time, fleshed out what specific protections are required to ensure procedural fairness, and these specifics have varied depending on the type of action being taken. That is, a criminal case is subject to more stringent due process requirements than a civil case, which is subject to more stringent requirements than an administrative case, and so forth.

In his 1975 article, Some Kind of Hearing, U.S. Circuit Judge Henry J. Friendly questioned how closely due process hearings concerning executive and administrative actions must conform to the judicial model applied in criminal and civil contexts. Friendly explained that while early Supreme Court decisions set forth that "some kind of hearing is required at some time before a person is finally deprived of his property interests" given the "number and types of hearings required in all areas in which the government and the individual interact, common sense dictates that we must do with less than full trial-type hearings," when mere executive or administrative actions are involved.4

That same year, in Skelly v. State Personnel Board5, the California Supreme Court established a due process framework for disciplinary action taken against public sector employees. In Skelly, an employee was given written notice of termination, which set forth the basis for the termination, and was permitted to submit a written response and request a hearing.6 The employee asserted that terminating him prior to an evidentiary hearing, and without any prior procedural safeguards, was a violation of his due process rights.7

The Skelly court concluded: "It is clear that due process does not require the state to provide the employee with a full trial-type evidentiary hearing prior to the initial taking of punitive action. However . . . due process does mandate that the employee be accorded certain procedural rights before the discipline becomes effective. As a minimum, these preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline."8 The Skelly case thus established a basic procedural framework for due process protections in the context of employee discipline in the public sector.

While Skelly rights help protect employees from being unfairly terminated, they can also serve to make it difficult to terminate employees, even those who have harassed others at work. In the employment setting, additional sources of due process requirements can include individual employment contracts, collective bargaining agreements, employee handbooks, codes of conduct, personnel policies and grievance procedures, and regulations and guidance issued by government agencies.

IV. Due Process Rights of Private Employees Accused of Harassment

Although private employees do not have a property interest in their jobs, principles of fundamental fairness still apply to actions taken against private employees. In the context of an employee terminated for sexual harassment, California courts have set forth that a fair investigation of the accusations of sexual harassment provides a qualified immunity to the employer for liability for wrongful termination.

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In Cotran v. Rollins Hudig Hall International, Inc.9, the California Supreme Court considered a case involving a male supervisor who was an at-will employee and was accused of sexual harassment by two female employees. The male employee was terminated following a two-week investigation that ultimately substantiated the allegations based on the credibility of the two complainants. The court found that an employee is terminated for " just cause" when "the factual basis on which the employer concluded a dischargeable act had been committed [was] reached honestly, after an appropriate investigation and for reasons that [were] not arbitrary or pretextual."10 Expanding upon the Cotran decision, Silva v. Lucky Stores, Inc. further established that "investigative fairness contemplates listening to both sides and providing employees a fair opportunity to present their position an d to correct or contradict relevant statements prejudicial to their case, without the procedural formalities of a trial."11 The Silva court found that the employer in that case had "listened to both sides, advised Silva of the charges and provided him with ample opportunity to present his position and to correct or contradict relevant statements prejudicial to his case," and had therefore met Cotran‘s "fairness requirements."12

V. Governmental Guidance on Due Process in the Investigation of Sexual Harassment

Governmental agencies enforcing laws against sexual harassment have also discussed what a fair investigation consists of. While the focus of this guidance is how to protect employees who are harassed, it also discusses the rights of the accused. In 1999, the U.S. Equal Employment Opportunity Commission (EEOC) issued its first Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors.13 This guidance included information concerning the duty of employers to conduct timely, fair, and thorough investigations of sexual harassment allegations. While the guidance did not specifically reference due process, the guidance expressly states that the employer must "ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts," that the accused should have an opportunity to tell his or her side of the story, and that any "disciplinary measures should be proportional to the seriousness of the offense."14

In 2017, the California Department of Fair Employment and Housing (DFEH) issued a Workplace Harassment Guide for California Employers.15 The DFEH guide specifically uses the term "due process" in relation to providing a fair investigation, and expands on the investigative principles set forth by the EEOC. The DFEH guide states that the investigator should give the accused party "a chance to tell his/her side of the story, preferably in person," and further states that the accused party "is entitled to know the allegations being made against him/her."16 The guide notes that due process does not necessarily require that the accused party be informed of the allegations against them prior to their investigative interview or that the allegations be provided in writing, but rather due process entails "making the allegations clear and getting a clear response" and reaching a "reasonable and fair conclusion based on the information . . . collected, reviewed and analyzed during the investigation."17

This guidance sets the framework for the procedural fairness an employee accused of engaging in harassment is entitled to in the context of a workplace investigation. Whether the employee would then be entitled to any further procedural protections, such as a hearing, should the investigative findings lead to termination or lesser discipline, depends on whether the employer is a public or private employer, and/or whether some other source of due process applies, as discussed above. In the private employment setting, the timely, fair, and thorough investigation itself is the extent of the due process to which the employee is entitled.

VI. Due Process in Educational Institutions

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Although historically Title IX cases, which address discrimination and harassment in educational settings, have followed generally the same model of investigating and adjudicating allegations of misconduct as in the employment setting,18 recent California cases have demonstrated a shift in approach that favors enhanced protections for those accused of sexual misconduct. Pre-2017 decisions, such as the 2016 Doe v. Regents of University of California case, emphasized that a "fair hearing," in the context of a university student conduct review panel, "need not include all the safeguards and formalities of a criminal trial."19 The court went on: "A university’s primary purpose is to educate students: ‘[a] school is an academic institution, not a courtroom or administrative hearing room.’ A formalized hearing process would divert both resources and attention from a university’s main calling, that is education. Although a university must treat students fairly, it is not required to convert its classrooms into courtrooms."20

Thus, in Doe v. Regents, the court found that the due process rights of a male student—found by the university’s student conduct review panel to have sexually assaulted a female student—were not violated when the accused’s attorney was prevented from actively participating in the hearing, when the accused was prevented from cross-examining the female student (though he was permitted to submit written questions to the female student, who did testify before the panel), or when the panel relied on the findings contained in the Title IX investigator’s report without directly questioning the investigator or providing to the investigator’s interview notes to the accused.21

However, post-2017 cases, such as 2019’s Doe v. Allee,22 have seemingly tempered universities’ freedom to deviate from the type of "safeguards and formalities" referenced in the 2016 Doe v. Regents case. In Doe v. Allee, the California Court of Appeal cited the 2017 decision in Doe v. University of Cincinnati,23 which found that the due process rights of a male student were violated because the female student did not testify in person before the review panel and the panel relied on the Title IX investigator’s report in reaching its finding; as well as the 2018 Doe v. Claremont McKenna College24 case, which likewise found that the due process rights of a male student were violated because the university permitted the female student and witnesses to submit written statements to the review panel, rather than appear personally before the panel and be cross-examined. The court then found that when a student "faces serious discipline for alleged sexual misconduct, and the credibility of witnesses is central to the adjudication of the charge, fundamental fairness requires that the university must at least permit cross-examination of adverse witnesses at a hearing in which the witnesses appear in person or by some other means (such as means provided by technology like videoconferencing) before one or more neutral adjudicator(s) with the power independently to judge credibility and find facts."25

Thus, the trend, at least in educational settings, is for more formalized trial-like proceedings that go beyond the safeguards provided for public employees under Skelly.

VII. What Does This Mean for Employers Enforcing Laws and Policies Regarding Harassment?

The above authorities are illustrative of the gap between the due process afforded an employee of a private employer who is terminated for violation of a sexual harassment policy (that is, a fair and thorough investigation as articulated by Cotran and Silva), as opposed to a public employee (who has additional rights under Skelly), as opposed to a student at an educational institution (who has enhanced due process rights under Allee). But should there be different levels of due process for what is essentially the same type of conduct? What level of due process is appropriate in employment settings? And how might these different levels of due process impact the prevention of harassment?

Employees who are accused of harassment will no doubt argue for heightened due process procedures. However, those who are targets point to the fact that being subjected to cross-examination may have a chilling effect on bringing claims forward. Sexual harassment is already under-reported. More formalized processes protecting the rights of the accused may have the (presumably unwanted) effect of discouraging claims and making it harder to terminate wrongdoers. Public employers often already have the difficult decision of whether they should protect the complainant and witnesses by failing to disclose information that would expose employees to embarrassment or ridicule when it could mean risking having sufficient evidence for a termination to survive a Skelly hearing.

Employers are increasingly in a no-win position, trying to provide heightened due process for the accused (or being criticized if they do not) while effectively addressing sexual harassment and also being subject to criticism if they do not swiftly terminate the individual accused. In the meantime, the sort of mini-trials that courts have determined are impractical and detrimental to educational institutions’ primary purpose—to educate students—could equally be said to divert resources and attention from the employers’ primary purpose—whether the organization is a public entity, serving the public good, a non-profit with a charitable purpose, or a private entity. The unintended victims of increasing due process rights could be the rest of the employees in the workplace, who often cannot help but be impacted by what is going on.

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Treating employees fairly—not terminating without a reasonable basis to do so and not making findings about harassment without a fair and thorough process—should be an essential element of any workplace culture. But that doesn’t necessarily require enhanced due process rights for the accused such as those that have come to prevail in the educational setting. In private workplaces (and arguably in public workplaces as well), the Cotran and Silva standards have worked successfully for many years. A thorough and fair investigation in conformity with those standards strikes the proper balance. Both employers and employees should think twice before advocating for something different.

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1. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 13 (1948); Garfinkle v. Superior Court, 21 Cal. 3d 268, 281-82 (1978); Coleman v. Department of Personnel Admin., 52 Cal. 3d 1102, 1112 (1991).

2. 416 U.S. 134 (1974).

3. 418 U.S. 565, 573-74 (1975).

4. Henry J. Friendly, Some Kind of Hearing, 123 U. Penn. L. Rev. 1267, 1268 (1975).

5. 15 Cal. 3d 194 (1975).

6. Id. at 197-98.

7. Id. at 205.

8. Id. at 215.

9. 17 Cal. 4th 93 (1998).

10. Id. at 107.

11. 65 Cal. App. 4th 256, 264 (1998) (citing Cotran, supra n.9 at 108).

12. Id. at 273.

13. Available at: (last visited Oct. 16, 2019).

14. Id.

15. Available at: (last visited Oct. 16, 2019).

16. Id.

17. Id.

18. Although these cases do not currently apply in employment settings, this trend could be applied in the employment arena and thus is instructive to a discussion of due process in the context of the investigation and adjudication of sexual harassment complaints.

19. 5 Cal. App. 5th 1055, 1078 (2016).

20. Id. (quoting Murakowski v. University of Delaware, 575 F. Supp. 2d 571, 585-86 (D. Del. 2008)).

21. Id. at 1082-98.

22. 30 Cal. App. 5th 1036 (2019).

23. 872 F.3d 393, 400 (6th Cir. 2017).

24. 25 Cal. App. 5th 1055 (2018).

25. Id.