There may be good reasons to rely on the affirmative defense and forgo the work product and attorney-client privileges in some cases. In others, forgoing the affirmative defense to protect the investigative reports and supporting documents might be the better option. Virginia employers should be aware of their alternatives and have internal discussions with their attorneys to decide the best move for their situation, which may depend on a number of factors specific to their case.
The Faragher-Ellerth affirmative defense can be used in Title VII actions to avoid employer liability where the employer exercised reasonable care to promptly prevent and correct the actions complained of by the employee and the employee unreasonably failed to take advantage of any protective or corrective opportunities provided by the employer or to avoid harm otherwise. Two United States Supreme Court cases decided in 1998, Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton, established the defense. In preparation for asserting this defense, it is common for employers to have their attorneys internally investigate the employee’s allegations to find out what really happened. In the course of these investigations, the attorney may interview employees and write down his or her findings in a report.
The attorney-client privilege protects confidential communications between an attorney and a client on matters relating to legal representation and the work product doctrine protects documents prepared by an attorney in anticipation of litigation. By relying on an attorney’s investigation report as part of an affirmative defense, the report itself and the documents underlying the report are put at issue.
Many United States district courts around the country have ruled that when an employer relies on the Faragher-Ellerth affirmative defense premised on an internal investigation, the employer implicitly waives the attorney-client privilege and work-product protection as to the investigative report and even documents underlying the report. The waiver thus applies to memos authored by the investigator and interviews of employees conducted during the investigation. This waiver may be an unintended negative result of using the affirmative defense.
The reasoning behind the waiver is that the only way the plaintiff can determine whether the investigation was reasonable is through full disclosure of the contents thereof.