Israel: Workplace Sexual Harassment – Disclosure of Materials in Internal Investigations
A new court ruling may require employers to disclose materials collected during investigations into incidents of sexual harassment.
According the Prevention of Sexual Harassment Law, when an employee files a workplace sexual harassment complaint (or if the employer becomes aware of information regarding such potential conduct), the employer must investigate the complaint. At the end of the investigation, the appointed investigator will produce a summary of her findings and recommendations for handling the complaint. The investigator must then pass these on to the employer.
Under the provisions of the Prevention of Sexual Harassment Law, the employer must permit the complainant and the accused individual to review the investigator’s summary and recommendations. As a rule, the other materials collected or produced during the internal investigation (including summaries and transcripts of conversations with the complainant, the accused individual, and witnesses) are confidential. The purpose of this is to protect the dignity and privacy of the parties involved. Another purpose is to allow the employer to conduct an effective investigation of the matter – confidentiality encourages cooperation from other employees who may attest to the accuracy of the various parties’ claims. Therefore, the background materials collected during the investigation are not made available to the parties.
However, the National Labor Court recently ruled that when a claim is filed against the employer, in certain circumstances, and when the plaintiff alleges flaws in the management of the internal investigation, the employer may be required to disclose the background material collected during the investigation in the framework of the legal proceeding.
According to the ruling, disclosing background materials collected during the investigation allows for exposure of any flaws in the investigation. Such flaws may include failure to summon relevant witnesses, failure to clarify certain issues, conclusions inconsistent with the evidence and testimonies collected, retaliation following the sexual harassment complaint, and more. The court called for weighing the need to disclose the materials against violations of the privacy of those involved in the internal investigation, based on the specific circumstances at hand.
The Ruling’s Implications
In view of the ruling, employers may now face greater exposure to demands to review investigation materials during the course of a legal proceeding under the Prevention of Sexual Harassment Law. Therefore, now more than ever, and in order to continue to maintain the purpose of the Prevention of Sexual Harassment Law, we recommend conducting investigations of sexual harassment complaints thoroughly and properly.
Given the complexity of the matter, we invite you to reach out to us with any questions or if you require counsel. For more information please contact a member of our Employment team