Question: What happens if an employer does a half-hearted job at investigating an employee’s complaint about harassment?
Response: Employers who treat harassment or discrimination complaints dismissively by ineffectively investigating an employee’s claims – or not investigating them at all – can doom their chances of prevailing in court should a lawsuit be filed. An employer’s policies prohibiting discrimination and procedures for addressing complaints about such unlawful conduct – when not earnestly followed by management – are as strong of a shield against litigation as the paper on which they are written.
Unless employers want to find themselves liable for harassment claims, they must perform an effective investigation into complaints of such misconduct. An Equal Employment Opportunity Commission (EEOC) guidance states that an employer can avoid liability or damages if it exercises “reasonable care to prevent and correct promptly any harassment.” And the failure to conduct an effective investigation of a complaint amounts to a failure to exercise reasonable care.
The EEOC guidance states investigations should be “prompt, thorough, and impartial” and they should be launched immediately after the complaint is received. I always advise employers to have a neutral party, such as an outside attorney, conduct the investigation. Further, the EEOC recommends that the complainant should be shielded from the potential of additional harassment while the investigation is underway.
Even if the employer believes a complaint is frivolous, or it has already investigated a similar complaint from the same employee, it is crucial for each complaint to be treated seriously and on a case by case basis. And, as the EEOC guidance points out, “the employer is obligated to investigate the allegation regardless of whether it conforms to a particular format or is made in writing.”
A “supervisor’s failure to investigate [a] discrimination claim strengthens [the] inference of discriminatory animus,” the U.S. District Court for the Southern District of New York said in the 2013 case, Henderson v. Montefiore Medical Center. And conducting an investigation that is not in accordance with the employer’s anti-discrimination policies and procedures is no better. “[A]n employer’s noncompliance with its own affirmative action plan may be probative of discriminatory intent,” the same court said in 2008’s Collins v. Cohen Pontani Lieberman & Pavane.
Henderson, for example, involved a black medical professional who walked with a cane due to her multiple sclerosis. Even though she had expressed to a senior medical director that she believed racial and disability discrimination were factors behind her negative peer reviews, the supervisor did not report or investigate these complaints as required by the employer’s anti-discrimination policy. An outside consultant had recommended the complainant be temporarily supervised, but the employer instead terminated her just four months after she voiced her concerns about discrimination. In refusing to dismiss the complainant’s discriminatory termination claims, the court said the fact that the employer replaced the plaintiff with nonblack doctors, and its “apparent lack of response, [or] certainly no direct response, to Plaintiff’s complaints” constituted “sufficient evidence of racial animus.”
Employees who believe employers are not taking their complaints about discrimination or harassment seriously should immediately consult with an experienced employment law attorney. Employers should also consider retaining outside counsel to conduct a prompt, thorough, and impartial investigation of any such complaints.
Mathew B. Tully is author of the Saratogian’s “Ask the Lawyer” column and the founding partner of the law firm Tully Rinckey PLLC in Colonie. Email employment law-related questions to firstname.lastname@example.org. The information in this column is not intended as legal advice.