Articles

Employer Investigations

March, 2016

EMPLOYER INVESTIGATIONS OF WORKPLACE COMPLAINTS

This month, I will be presenting a panel seminar at the Annual Labor and Employment Law Conference for the Connecticut Bar Association. The title of this continuing legal education seminar is Employer Investigations. I will be presenting the plaintiff attorney’s perspective, although the information I will provide is applicable to both employees and employers, as well as their counsel. A brief synopsis of my presentation is included below.

Do employers have a legal duty to investigate an employee complaint of discrimination?
Interestingly enough, an employer does not violate the law by ignoring an employee complaint. However, it forfeits the possible opportunity to escape liability under Title VII by failing to investigate the complaint and attempting prompt remedial action.

An employer’s failure to investigate a workplace complaint could assist the plaintiff’s lawyer in opposing summary judgment. “If the evidence creates a triable issue of fact as to whether the employer’s action is effectively remedial and prompt, summary judgment is inappropriate.” Gallagher v. Delaney, 139 F.3d 338, 348 (2d Cir. 1998).

Additionally, proof of an employer’s sloppy, inadequate investigation could be enough to survive summary judgment. Vance v. Ball State University, 133 S.Ct. 2434, 2453 (2013)(“Evidence that the employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant.”).

Further, once the plaintiff’s lawyer survives summary judgment, an employer’s failure to investigate could be powerful evidence to present to the jury. Juries hate employers who don’t follow their own rules and policies. Because employment discrimination cases largely depend upon circumstantial evidence, the employer’s failure to investigate could be evidence of pre-text, i.e., the employer was motivated, at least in part, not by the reasons it states for the adverse employment action, but by a discriminatory purpose.

In addition to the failure to investigate, some of the other investigatory failures that the courts have found include the following:

• Failure to appoint an objective, impartial investigator;
• Failure to interview the complaining employee;
• Failure to interview key witnesses;
• Failure to recognize the protected status of employees who provide information in support of the complaining employee.