Boss grabbed your breast but denies it? Workplace investigators must ferret out the truth

Feb. 2, 2018 4 AM PT

Let’s say, for argument’s sake since we’re arguing so much about sexual harassment these days, that a nursing home supervisor claimed that her boss assaulted her.

That he came up behind her in a hotel corridor during a break in a training session, put his hands on her shoulders, slipped his right hand onto her breast and whispered, “Oh, how I want you.”

Let’s say she whirled around in shock and threw her coffee on him. Then, later, when confronted, he not only denied that he touched her, but said he never even saw her that day.

Who is going to figure out what happened? Probably someone from the growing class of professionals known as workplace investigators.

Workplace investigators might be staffers in the human resources department, private investigators or outside law firms that specialize in bad workplace behavior.

At this fraught cultural moment, their work has never been more important, scrutinized or in demand.

This week in Santa Barbara, 70 workplace investigators gathered for a five-day training institute.

Members of the Assn. of Workplace Investigators, they had come from as far away as Australia and Canada to burnish their skills in the delicate art of investigating complaints that arise when employees believe they have been harassed, abused or discriminated against at their jobs.

The association was founded nine years ago by Amy Oppenheimer, 65, a Berkeley attorney who spent many years representing plaintiffs in sexual harassment lawsuits. It now counts 850 members.

The training culminates in a day of testing for certification, which Oppenheimer and some of her colleagues developed in collaboration with a psychometrician (an expert who develops exams for credentialing purposes).

“In my experience, my clients didn’t want a lawsuit,” said Oppenheimer, as we chatted Wednesday evening in a hotel bar. “They wanted to keep their jobs, be protected and get on with their life. They were always more upset about their employer not protecting them.”

The investigators have attended sessions on how to understand and avoid bias when fact-finding and how to execute a review, including how to interview witnesses.

They have studied the law relating to workplace investigations and will be trained to assess credibility in order to decide what is likely to have happened.

They seek the truth, but it is often elusive. For example, when confronted with the “he said/she said” scenario, they look for corroboration, and examine motives and credibility.

I met Oppenheimer in 1991, shortly after I arrived at The Times. She and her then-partner, Leslie Levy, were representing 21 single, low-income women who had been sexually harassed, stalked and assaulted by the manager of their apartment building in Fairfield, a town halfway between Oakland and Sacramento.

It was an extraordinary case, unheard of in the annals of American justice.

The manager ended up in jail for sexual assault; the women ended up with modest sums of settlement money and the satisfaction of knowing that in Oppenheimer and Levy, they had found relentless advocates.

Last October, after exposés about Harvey Weinstein inspired women to take a stand against rampant harassment and sexual assault in the state Capitol, Senate leader Kevin de León announced he had hired Oppenheimer’s firm to investigate the allegations. Two other firms have since been hired, including one led by Sue Ann Van Dermyden, a board member of the Assn. of Workplace Investigators who is also on the institute’s senior faculty.

I have heard from colleagues in Sacramento that some women who claim they have been harassed by legislators are reluctant to be interviewed by attorneys hired by the Legislature itself. That is a common conundrum when it comes to workplace investigations.

How many of us have gone to our HR departments with complaints about bosses only to come away feeling the goal of HR was to protect the company, not the employee?

Turns out we were right.

“HR’s job is to protect the company,” Oppenheimer said, “but HR needs to understand that uncovering the truth as soon as possible and dealing with it head on does protect the company. In the short term you can say, ‘This looks terrible and we can deep-six it.’ But that’s not what’s best for the company. What’s best is dealing with what’s wrong in a righteous manner.”

Still, she and many of her colleagues believe that the #MeToo movement has led to a shoot-first-ask-questions-later workplace atmosphere.

“I think too many heads are rolling without enough inquiry into what actually happened,” Oppenheimer said. “There is a huge difference between a Weinstein and an Al Franken. If we were to eliminate every man who has done something untoward over the age of 18 or 22, we would just have to eliminate most of them.

“Remember that old feminist joke, ‘If you can send a man to the moon, why not send them all?’ There was probably a time in my life where I thought that would be fine, but that time has passed. I guess I am more forgiving of human frailty.”

In the end, most workplace investigators seemed to agree there was a preponderance of evidence (described as “50% plus a feather”) that the nurse’s boss had probably grabbed her breast. Though no one had seen the boss at the work conference, she had accurately described the clothes he was wearing — corroborated by others who had seen him that morning in the office.

Also, she appeared upset immediately after the alleged incident, according to a hotel worker. And she reported the encounter contemporaneously to a friend and colleague, to whom she’d also confided previously that the boss stared at her breasts during her job interview and invited her to a bar for what she thought was a work party, but no one else showed up.

Weighing in favor of the boss: He had told her that her work was not yet up to par, though she was not in danger of being reassigned or transferred; she had recently entered into a contract to buy a home in Santa Barbara and may have been fearful about losing her job at a financially precarious moment, so she struck first.

So should the boss get fired? God, yes, but that’s not up to workplace investigators. They just lay out what they believe happened.

After that, it’s up to employers to do the right thing.