Legislature’s decision to hire harassment investigators is criticized

SACRAMENTO — The Legislature’s decision to hire two firms to investigate sexual harassment claims by women in the Capitol is drawing fire from activists who say such inquiries are not sufficiently independent.

Jennifer B. Shaw and Amy J. Oppenheimer, who were hired by different houses of the Legislature, bring different resumes to their roles.

Shaw Law Group LLP is investigating allegations of sexual misconduct in the Assembly. The firm has a long history of representing employers in litigation, but stopped at the end of last year to focus on training and workplace investigations.

Oppenheimer — of the Law Offices of Amy Oppenheimer — is conducted a similar investigation in the Senate. She started out as a plaintiff’s lawyer, and said the majority of her work as an expert witness is on behalf of plaintiffs.

However, she has served as an employer-side expert witness in many cases.

Several women behind the #WeSaidEnough campaign in Sacramento have criticized the Legislature’s handling of past allegations and say they are skeptical that any investigator hired by the body itself would be impartial.

“How independent can an investigator be when they are hired and contracted by the entities they are investigating?” said Adama Iwu, a Visa Inc. lobbyist and key organizer of #WeSaidEnough. “I firmly believe the Legislature should not be in charge of hiring its own investigators.”

Those feelings boiled over during a six-hour hearing on Tuesday held by the Assembly Rules Subcommittee on Harassment, Discrimination, and Retaliation Prevention. Witnesses detailed stories of harassment and assault, and a lack of support once they reported the behavior.

Shaw said the work of outside legal investigators is often misunderstood and sometimes unfairly maligned.

“The employer has to hire the investigator,” Shaw said. “What they have to make sure of is that they are not constantly hiring the same investigator, and that the investigator understands their role of being a neutral outsider.”

Shaw shows up in Sacramento County Superior Court records several times in the late 1990s and early 2000s as representing employers including Sutter Health. She said she gradually moved away from that, and that the litigation practice at her firm is now managed by another attorney.

The firm has many guidelines to avoid conflicts of interest, she said.

“We’ve never done litigation for any of the entities for which we have done investigations,” Shaw said. “We have never represented the Senate or Assembly in any litigation.”

Shaw said her work often involves delivering bad news to employers, including that allegations against a manager are likely true. She declined to comment on work her firm is doing for the Assembly.

Oppenheimer said she stopped working as a litigator in 1992, and that her firm has never handled litigation. She said the firm focuses on investigations, mediation, training and providing expert testimony.

“I specialized in representing women in sexual harassment in employment cases,” Oppenheimer said.

“My expert witness work is about 75 percent for plaintiff and 25 percent for defense, not by design but just how things have worked out.”

These numbers match a deposition Oppenheimer gave in 2014 while serving as an expert witness for BAE Systems as it fought a racial discrimination and wrongful termination lawsuit.

Oppenheimer’s website lists testimony for employees suing the California Department of Developmental Services and the U.S. Air Force. It also notes defense-side testimony for the city of Petaluma.

The firm’s website states that Oppenheimer is the founder and past president of the board of the Association of Workplace Investigators Inc. and a former chair of the Labor and Employment Section of the State Bar of California.