Shoddy harassment investigation comes back to bite employer

Employers, has this ever happened to you?

An employee has accused her boss of sexual harassment. Right now, it's her word against his, but you might be able to find out the truth if you interview her co-workers.

The only trouble with that is, you don't want to do anything to undermine the supervisor before you even know whether he's guilty. So, maybe you do a superficial investigation that doesn't require you to dig into the dirt, or maybe you don't do any investigation at all.

Investigation.flickrCC.VictorGumayunov
Whether you want to or not, you'd still better investigate.

If you ever needed a case study showing why it's important to do a thorough investigation anyway (and I'll talk about how to do it in a way that shouldn't cause any harm to an innocent supervisor), then read this decision, from the Supreme Judicial Court of Massachusetts. (Warning: NSFW, unless you're an employment lawyer who has seen and heard it all, anyway.)

The Court reinstated a punitive damages award of $500,000 against a Lexus dealership, in part because of its lousy investigation.

The plaintiff was in her termination meeting and made allegations of sexual harassment by her boss. The dealership went ahead with the termination and then investigated.

But just barely, because they didn't want to "undermine" the accused.

The "investigation" in the plaintiff's department consisted of checking to see whether any accusations had been made against her boss in the past. The answer was no. End of investigation.

(Actually, even this was in doubt -- the person who was allegedly asked about the supervisor's history denied having been asked.)

You what? flickrCC.USArmyAfrica
"Do what?"

Then at the trial, of course, all of the co-workers who were not interviewed were called to testify. One said that the boss spoke crudely about the plaintiff and to the co-worker herself. Another co-worker said that the boss had spoken about the plaintiff's breasts. The boss's former boss testified that the boss talked about employees' breasts and buttocks and spoke in a way that "would not have been acceptable at 'church or temple.'" A former employee said that the boss used "vulgar profanity" when talking about women, including female employees.

Although the dealership wanted to use its investigation as a defense to the punitive damages claim, the Court concluded that "the jury could have found that any such investigation was abbreviated and colored by [the General Manager]'s belief that . . . [the] claims were false."

In other words, the jury had reason to believe that there was a shoddy investigation that wasn't designed to get at the truth. Therefore, the jury was justified in hitting the dealership for half a million in punitive damages.

Disgust.flickrCC.RochelleHartman
"It's like you're doing a bad job on purpose."

If you read the whole decision, you will wonder whether the dealership even cared about the truth beyond possibly wanting to cover it up. But maybe you really do want the truth, and fear of undermining an accused (and possibly innocent) supervisor with unproven allegations is a legitimate concern.

A concern, but not a valid legal excuse for failing to investigate.

Here's a tactful way to do it. Consider meeting with the employees individually and, without naming names, simply asking them about the atmosphere and general work environment. At some point in the conversation, you can review the harassment policy with them and ask whether they've observed any behavior that they think is inappropriate or might violate the policy. If they give you specifics, then you can follow up as needed. It's also a good idea to ask them whether they know what to do if they feel they've been harassed at work. (If they don't, then you have a good opportunity to teach them.)

Image Credits: From flickr, Creative Commons license. Investigating team by Victor Gumayunov; "Do what?" by U.S. Army Africa; disgusted woman by Rochelle Hartman.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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