How to Keep Workplace Investigations From Going Wrong

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By Eric B. Meyer

What could possibly go wrong with a sham workplace investigation?

Well, if it means that the employee diagnosed with anxiety and depression — the one who requested a reasonable accommodation to perform her job — gets fired. Well, then, a lot.

That’s basically what happened in this recent federal court case out of Kentucky.

Decisions made BEFORE the investigation

You see, normally a court won’t second guess an employer’s decision to terminate an alleged sexual harasser, following a complaint and investigation. And when the alleged sexual harasser later sues the employer for retaliation, well, I don’t care if she belongs to every protected class on the EEOC‘s checklist, court’s tend not to sympathize with sexual harassers.

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But, as the Kentucky court noted, it’s a different story when the decision to terminate the alleged sexual harasser — the one with the disability — is made before the workplace investigation commences:

The Plaintiff has produced evidence that the Defendant’s investigation regarding the sexual-harassment complaint against the Plaintiff was a cursory one … The fact that Smallwood drew up the paperwork necessary to terminate the Plaintiff prior to meeting with her and that she terminated the Plaintiff without further investigation even though the Plaintiff denied making the comment could lead a reasonable juror to conclude that the Defendant did not actually fire the Plaintiff because it found that she sexually harassed a co-employee.”

So take it from me. If an employees come to you complaining that so-and-so sexually harasser her, please take the complaint seriously. However, don’t just assume that the complaint against so-and-so is the gospel. Conduct a fair and impartial investigation to determine whether the complaint has merit.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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