Legal experts are raising questions about the objectivity of the investigation that eventually cleared state Rep. Jerry Govan of sexual harassment after a staffer complained of unwanted hugs last year.
A female employee who worked for the lawmaker complained of unwanted, public hugs by the Orangeburg Democrat during the 2017 legislative session. The law firm Fisher & Phillips conducted an investigation into the allegation sometime in 2017.
Investigators concluded that, “Although Representative Govan has hugged [redacted], the investigation’s conclusion is that the House’s “No Harassment” Policy has not been violated.”
The full report was released to the City Paper under the Freedom of Information Act earlier this year.
Fisher & Phillips is headquartered in Atlanta and operates offices in 31 other cities, including Columbia.
“Employers with their choice of employment lawyers choose Fisher & Phillips to handle their most difficult and dangerous cases,” their website says.
Tiffany Cruz, a Florida-based labor attorney, says she is wary of the use of employer defense law firms in sexual harassment investigations.
“It would call into question whether the employer truly wanted an unbiased investigation, I think,” she said in a phone interview with CP.
In the Fisher & Phillips report, the staffer’s supervisor tells investigators that two lawmakers have complained about the staffer’s performance.
“[Complainant’s Supervisor] observed that [redacted] has been stopping by to talk with him much more frequently this Session and that she has openly shared personal information regarding her health, her husband’s health and the death of their pet.”
“She repeats stories and has appeared confused,” the report added.
“I felt like reading that language was very skewed against the complainant, already calling into question her motives, basically making it seem like the only reason she complained about it was because she was having performance issues and these other things,” Cruz said. “Whether or not that’s true is really irrelevant. Thatʼs precisely one of the concerns with hiring employment defense firms to do these, quote-unquote, impartial investigations.”
Govan told the firm’s investigators that he was aware of the criticism of her performance, but that he has not complained about it himself. On Tues. June 12, he won the Democratic primary for his District 95 seat with almost 68 percent of the vote against two challengers.
“Fisher & Phillips recognizes that laws prohibiting discrimination and harassment continue to expand, and government agencies continue to increase their enforcement activities. This is a dangerous combination,” the law firm states in a website pitching its investigatory services. “With our assistance, you can minimize your chances of facing a lawsuit while maximizing your chances of success should you get hit with a legal claim.”
“If youʼre trying to tell victims that we take your claim seriously, I think thereʼs better options,” Cruz said.
House counsel Michael Anzelmo did not answer whether the staffer was represented by her own attorney during the course of the investigation into her complaint.
Fisher & Phillips did not respond to multiple requests for comment.
Malissa Burnette, a Columbia-based employment attorney, has represented clients in lawsuits against parties represented by Fisher & Phillips.
“This report appears to be properly written, and it looks to be investigated according to the policy,” she said in a phone interview with CP. “Thereʼd be no doubt that the Fisher & Phillips firm is qualified — well-qualified to conduct this investigation.”
When it comes to investigating sexual harassment in state legislatures, the rules governing how the facts are collected are not always well-defined.
The National Conference of State Legislatures, a non-profit group that works to “improve the quality and effectiveness of state legislatures,” offers no recommendations on how legislatures should conduct sexual harassment investigations aside from a bulleted list on its website pointing to the “possibility of involving parties outside the legislature.”
The S.C. House “No Harassment” policy does not describe a specific entity tasked with conducting investigations, leaving the decision up to House leadership.
The policy states that: “The Speaker of the House will order an investigation of any report and will take prompt, appropriate remedial action based upon the totality of the circumstances and the record as a whole.”
“In the event that a conflict of interest exists concerning the Speaker of the House, the Chairman of the Operations and Management Committee will order an investigation of the report and then take prompt, appropriate remedial action,” the policy continues.
Outside of South Carolina, no-harassment policies direct investigations to specific employees or organizations.
The Colorado General Assembly’s “Workplace Harassment Policy” explicitly cites the Mountain States Employers Council (also known as Employers Council), as a group that “may be used to investigate” harassment complaints. In an email to CP, an Employers Council spokesperson described the organization as an “employers association that provides resources needed to build and maintain profitable organizations.”
The group is not a law firm.
Anti-harassment policies for the Maryland General Assembly, the Hawaii Senate, and the Oregon Legislature direct investigations to Statehouse staff, some to offices explicitly dedicated to personnel matters.
In Alabama, the House policy is less clear, stating only that “each person has a right to an impartial and fair hearing.”
After complaints are filed, investigators are left to piece together facts and draw up their own conclusions as to whether any policies have been violated.
In Govan’s case, the report lays out a clear narrative based on investigators’ interview with the longtime lawmaker, while the staffer’s responses are described as “vague and uncertain,” “disconnected,” and including “irrelevant information.”
“During her interview, [redacted] was vague and uncertain as to the timing of the events she described,” the report states. “Her answers to questions frequently were unresponsive and interjected irrelevant information. For example, at one point in the interview [redacted] began to focus on her belief that Representative Govan was taking bottles of water from a shared refrigerator or over using ink cartridges. She did not appear evasive, rather it was a disconnected narrative that was occasionally internally inconsistent.”
“Thatʼs a typical pattern,” said College of Charleston political science professor Claire Wofford. “Making it look like the victim is overly emotional or overactive, or is unstable in their personal life, as a way to undermine the claim of harassment.”
Wofford, whose research focuses on the role of gender in political power structures, notes that the S.C. House of Representatives is an employer like any other, which means that their choice of law firm would ultimately have their best interest in mind.
“Itʼs very common for employers to hire outside counsel to conduct these investigations. Under the law, as long as the employer made reasonable efforts to respond to the complaint, the employer can be protected from liability,” she says. “Because the law allows employers to be the primary route for which these claims are handled, it certainly opens up the chance that the employerʼs self-interest will come before the victimʼs.”
At the heart of the report’s conclusion lies the finding that the staffer denied that the hugs were given out of “an express or perceived sexual motive,” that she “denied there were any inappropriate comments,” and that she “did not attribute the hugs to her gender.”
Investigators wrote that the staffer speculated that Representative Govan hugs her “as a way of demonstrating his control.”
“It doesnʼt meet the standard of sexual harassment,” said Burnette, the Columbia attorney. “Her belief that the motive was more to convey control, whether or not thatʼs true, thatʼs something else. If the motive was control, thatʼs not discriminatory, but if thereʼs a sex motive then thatʼs going to be sexual discrimination and sexual harassment.”
The legal bar for proving sexual harassment, a form of gender discrimination that violates Title VII of the Civil Rights Act of 1964, is considerably high. According to the U.S. Equal Employment Opportunity Commission, the alleged conduct must be “severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
“This is neither,” Burnette said. “It doesnʼt happen every day, itʼs not severe, itʼs not a grabbing of a private area.”
However, the S.C. House of Representatives’ “No Harassment” policy — the document Fisher & Phillips based its investigation on — is far less ambiguous.
The Guidelines on Identifying, Reporting, and Addressing Harassment in the Workplace, the policy’s formal name, define “harassment” as “unwelcome, direct or indirect, verbal or physical conduct” including “unwelcomed and intentional touching, grabbing, hugging, pinching, cornering, impeding or blocking movement.” The document outlines a range of protected classes, including those defined by race, color, religion, gender, sex, pregnancy, disability, and citizenship status.
“According to their policy, if the offensive touching is based on gender it falls under here, so it doesnʼt have to be sexual to be sexual harassment,” Wofford said. “And itʼs not the complainantʼs responsibility. Just because she said it isnʼt [sexual], doesn’t mean it isn’t.”
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