The rules of evidence and employment and school investigations

A recent case  from the U.S. Court of Appeals for the Fifth Circuit gives a good lesson on how to document sexual harassment investigations. The lesson is also instructive on how a report can be used as evidence in all sorts of investigations in an education setting.

The case facts are not remarkable (the boorish behavior is seen repeatedly in sexual harassment cases). One employee uttered a number of improper comments, sometimes emphasized by physical gestures. Such actions ultimately lead to his termination. But before then, the employer investigated and interviewed a number of employees, all of whom confirmed the conduct in question, which lead employer to decide to fire employee. An appeal followed, a second investigation ensued and confirmed the first investigation and termination decision. Employee appealed to court.

Among other things, employee said the trial court was wrong to use the investigation reports, claiming they were hearsay evidence. Hearsay, under the rules of evidence, is an out of court statement used to prove the truth of the matter asserted and is not admissible. 

The court first held that employee statements to the investigators were not hearsay. Although it would appear otherwise, those statements fall into the too-often overlooked “not used to prove the truth of the matter asserted” part of the hearsay definition. In this case, the issue was not whether the conduct actually occurred; rather, the issue is the employer's reasons for terminating employee. “Because [the reports] were offered to prove what was said to [the investigators], and thus what [the investigators] relied on in making the decision to fire [employee], the statements were not offered to prove the truth of the matter asserted.”

Next, although the court found the reports themselves were hearsay, they were admissible under the business records exception of Rule 803(6). This exception sets forth criteria the reports must fit in order to be admitted as evidence notwithstanding hearsay. Among the criteria are that a report be made at or close to the events by a person with knowledge, kept in the regular course of business, and that making such reports is a regular business practice. Because the reports met the criteria, they were admissible as evidence, which ultimately lead to a decision in favor of the employer.

Bear in mind, and as the court notes, if reports are prepared in anticipation of litigation, they may not be admitted. But in matters of sexual harassment, employer policy will require such an investigation regardless of possible litigation. Beyond the employment setting where such processes are in place, education institutions may consider developing investigation practices for other matters, from parent complaints about special education implementation to investigations of security breaches and more. 

Of course, such practices should be developed with advice of counsel to weigh the pros and cons of such investigations and records.