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Posted by Amy Oppenheimer on January 30, 2013

California Court Finds Good Faith Investigation Prevents Liability for Terminating Employee

A California Appeals court affirmed the granting of summary judgment in favor of an employer who terminated an employee based on findings from an investigation. In the investigation, an outside attorney/investigator found that the employee had violated the employer’s sexual harassment policy and had not cooperated with the investigation. Based on these findings, the employee was then terminated.
The case is McGrory v Applied Signal Technology 

The court found that the employee was terminated for legitimate nondiscriminatory reasons, and therefore his lawsuit could not go forward. In doing so the court cited the Cotran case, pointing out that this employer had a reasonable and good faith belief that the employee engaged in conduct that violated its rules. Therefore, whether or not harassment (or rule violations) actually occurred is irrelevant. The McGrory court also found, in deciding a defamation action in the case, that the employee would have to show more than mere negligence in the investigation in order for the requisite finding of malice.

What does this mean for investigators and employers? This is more assurance from the California courts that if an employer, acting in good faith, conducts a fair, thorough and impartial investigation, it will not be held liable for taking action based on that investigation.

Posted by Amy Oppenheimer on November 5, 2012

Racial, Ethnic and Religious Harassment at Work in 2012

Two recent cases on racial, religious and ethnic origin harassment speak to how far we have come and how far we have yet to go.

In May v. Chrysler Group, a U.S. Court of Appeals case originating in Utah, there was very serious ethnic origin and religious (anti-Semitic) harassment over a prolonged period of time.  This case demonstrates that serious racist threats and hatred still permeate some workplaces. The court found that the employer’s response was “shockingly thin as measured against the gravity” of the harassment.  The decision is a good primer on an employer’s duty to respond to anonymous harassment and step up that response when initial efforts are unsuccessful.

In EEOC et al. v. Holmes & Holmes Indus., Inc., a decision from the United States District Court, also from Utah (what’s up Utah?), the few African American employees were barraged with repeated use of the “N” word.  The employer argued it was not unwelcome, given the rap lyrics these employees listened to.  The EEOC didn’t buy that argument and found that the undisputed allegations amounted to harassment as a matter of law.  It also found the Faragher/Ellreth defense was not applicable because the employer’s harassment policy directed victims of harassment to complain directly to their supervisor, even when the supervisor was the harasser.  This employer was also taken to task for failing to take disciplinary action against the harasser.

Lessons learned?  While workplace harassment based on race, religion and ethnic origin is unfortunately not a thing of the past – courts will take it seriously and expect employers to have proper policies and practices in effect.  Any notice of harassment should be rapidly and thoroughly investigated and reasonable action to prevent further harassment should be taken.

Posted by Amy Oppenheimer on January 29, 2012

Investigative Report can be Disclosed to the Public

A California Court has held that an investigative report in a sexual harassment complaint against a public school teacher is subject to disclosure under the Public Records Act

The case is Marken v. Santa Monica-Malibu Unified School District

A high school teacher was accused of sexually harassing a 13 year old student.  An outside investigator issued a report finding that the School District’s sexual harassment policy had been violated. Two years later a parent requested disclosure of the report under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.)  Marken filed a  complaint alleging disclosure of his personnel records was not authorized under the CPRA and would violate his constitutional and statutory rights of privacy.  The trial court found against Marken and the appellate court affirmed, finding that the public interest in disclosure of the report outweighed Marken’s privacy interests.

Posted by Amy Oppenheimer on March 29, 2011

What Journalists and Workplace Investigators Have in Common

“Being right is necessary but not sufficient. We also strive to be impartial. We are agnostic as to where a story may lead; we do not go into a story with a preconceived notion. We do not manipulate or hide facts to advance an agenda. We strive to preserve our independence from political and economic interests . . .”
 Bill Keller in the Magazine section of today’s NYT.

He was writing about journalists, and the New York Times, but substitute “investigation” with “story” and you get my own opinion on the workplace investigator’s role.  Staying impartial and avoiding any influence from others can be challenging, but it is crucial that we do so.

Posted by Amy Oppenheimer on March 15, 2011

Supreme Court Gives Employers Another Reason to Do Thorough Investigations

A recent US Supreme Court decision – Staub v. Proctor Hospital, reinforces why employers need to do a truly independent investigation before taking serious disciplinary action. Staub was discharged based on his supervisor’s write-ups regarding attendance. But it turned out his supervisor had an anti-military bias and had made it difficult for Staub to take time off to fulfill his obligations to the Army Reserves. The court found that the employer was liable because it relied on the facts provided by the biased supervisor. The moral, make sure someone who is really independent reviews the facts.