Articles

Employer Workplace Investigations

October, 2018

THE DUTY TO INVESTIGATE AT THE WORKPLACE

The controversial hearings for the Judge Brett Kavanaugh nomination to the U.S. Supreme Court have been temporarily paused for the FBI to conduct an investigation into the judge’s background and the allegations of sexual assault.  In the employment context, does an employer have a “duty to investigate” allegations of sexual abuse/harassment, as well as other alleged inappropriate conduct by employees?  If so, what standards or procedures should govern such employer investigations?

In a recent Connecticut federal district court decision, an improper employer investigation was found, in part, to be sufficient to deny summary judgment.  Gaspard v. Whole Foods Market Group, Inc., No. 3:16cv1205, Dist. Ct. (DJS), September 28, 2018.  In this race, national origin and hostile work environment case, the court found that there was a genuine dispute as to whether the plaintiff actually did commit the infraction for which he was terminated.  Further, the court questioned employee statements against the plaintiff and found evidence that could support a finding that the employer failed to conduct a thorough and fair investigation and that the investigation sought “a predetermined outcome” against the plaintiff.

An employer can escape liability by initiating a prompt and thorough investigation of an employee’s complaint of sexual harassment, followed by appropriate remedial action.  However, employers must still demonstrate that they exercised reasonable care in adequately investigation and promptly correctly reports of sexual harassment.  For example, the failure of a quick employer response to an employee complaint of discrimination could be an avenue for challenge.

However, it doesn’t matter to a jury whether an employer has a “legal duty” to investigate a sexual harassment complaint or any other complaint of discrimination or retaliation.  Juries will conclude that an employer’s failure to investigate or failure to investigate in a thorough, fair and objective manner is wrong.

For example, the employer’s failure to appoint an objective, impartial investigator could be fatal to the employer’s case.  The Equal Employment Opportunity Commission’s Enforcement Guidance on Vicarious Employer Liability for Unlawful Harassment by Supervisors states: “ The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation.”