ments can adopt similar guidelines to
follow in their regulations and enforcement practices, the fight against bribery
can be more effective and efficient—
with less demand on governments’
constrained resources and sometimes uneven regulatory expertise.
This progress is promising, and can
have a major impact on the work of cor-
porate legal and compliance functions
everywhere. It is an extremely complex
undertaking and will take time and
effort on many fronts.
We encourage general counsel,
boards of directors and chief compliance officers to take part. If we don’t
work to improve and streamline global
regulations and enforcement, we can
only expect a more tangled web of regulations that will make it increasingly
difficult to engage in responsible, compliant business growth.
Massimo Mantovani is general counsel of Eni
SpA and workstream leader for the B20 Task
Force on Increasing Transparency and Anti-cor-ruption. Richard Alderman was director of the
U.K. Serious Fraud Office from 2008 to 2012 and
authored the study presented at the U.N. conference in Panama, entitled “Possible Regulatory
Developments to Enhance the Private Sector
Role in the Fight Against Corruption in a Global
Business Context.” (Copies of the study can be
obtained by email to firstname.lastname@example.org.)
EVERY TEACHER AND PARENT OF MULTIPLE
children has probably done it at some
point: They walk in on a heated dispute,
and after listening to the claims and
counterclaims, throw up their hands
and announce that everyone is in trouble. It’s no surprise that companies do
it, too. But a California appellate court
ruled in January that it’s not OK.
Extending the California Supreme
Court’s standard for proving workplace
discrimination to retaliation cases, California’s Court of Appeal for the Fourth
District toppled a $283,000 jury verdict
and issued a warning for employers:
Don’t try to avoid liability for “he said/
she said” sexual harassment cases by
terminating both employees.
In his ruling in Mendoza v. Western
Medical Center of Santa Ana, Justice Ray-
mond Ikola put it this way: “Hopefully,
this opinion will disabuse employers of
the notion that liability (or a jury trial)
can be avoided by simply firing every
employee involved in the dispute.”
The employee at the center of the
matter was Romeo Mendoza. He was
by all accounts an exemplary nurse at
an Orange County hospital for 20 years,
reaching a middle management level. In
2010 he reported he was being harassed
by a supervisor, Del Erdmann. Men-
doza said Erdmann had made inappro-
priate comments, physical contact and
even exposed himself to Mendoza. Erd-
mann told corporate investigators that
Mendoza had been a willing participant
in the conduct, and that Erdmann had
only reluctantly gone along.
The company fired
both men for unprofessional behavior,
Orange County Superior Court jury
found Mendoza’s reporting to be “a
motivating factor” in his dismissal and
awarded $93,000 in economic loss and
$145,000 in emotional distress damages.
Last year, however, the California
Supreme Court set a higher standard
of causation in a case brought under
the Fair Employment and Housing Act.
Harris v. City of Santa Monica held that
employees have to prove discrimination is “a substantial motivating factor”
in a termination.
Mendoza’s attorney argued that
Harris applies only to FEHA cases, but
the Fourth District disagreed. “It would
be nonsensical to provide a different
standard of causation in FEHA
cases and common law tort
cases based on public policies
encompassed by FEHA,” Ikola
wrote, ordering a new trial.
Justices Kathleen O’Leary and
William Bedsworth concurred.
The medical center had fur-
ther argued that it should pre-
vail because no evidence was
presented at trial that it retali-
ated against Mendoza. In fact,
Ikola disagreed, pointing to evi-
dence that the company’s investigation
had been sloppy. Mendoza and Erd-
mann were interviewed together, rather
than separately, and by their supervisor,
rather than by an HR official. “The lack
of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the
truth so much as a way to clean up the
mess that was uncovered when Mendoza made his complaint,” Ikola wrote.
He noted that at oral argument, medical center attorney Donald Vaughn of
Vaughn & Vaughn asked what employers were expected to do when two
employees provide conflicting accounts
of inappropriate conduct. “Our answer
is simple,” Ikola answered. “
Employers should conduct a thorough investigation and make a good faith decision
based on the results of the investigation.
Here, the jury found this did not occur.”
YOU’RE BOTH FIRED!
A judge rules that this is not the way to resolve conflicting harassment claims.