Disciplinary and Harassment Investigations

Likewise, the corrective action should reflect the severity of the misconduct. Thus, discipline of the offending supervisor or employee may range from counseling or a reprimand, to suspension, with or without pay, to discharge. If the discipline does not end the harassment, the employer should initiate additional, more severe remedial action until the harassment stops. Depending upon the severity of the harassment, the person found to have harassed another employee may be terminated on the first complaint.

Whether the discipline is appropriate for the circumstances depends on the severity and persistence of the harassment and the effectiveness of any initial remedial steps. 144 Investigators should determine the factors that are relevant to assessing the seriousness of the offense and include those within the scope of their factual investigations. It is these factual findings that will assist the agency in making well- informed decisions on the level of discipline.

LCW Practice Advisor

Repeatedly, case law reveals that when agencies conduct prompt and thorough harassment investigations, they are much more successful in defending their appropriateness of their corrective steps (or decisions that corrective action was not warranted.) This point is well illustrated by the following case studies: The Ninth Circuit found the Postal Service’s investigation and response to a complaint prompt and entirely appropriate. Having concluded that it had insufficient evidence to sustain a charge of harassment, the Postal Service had a legitimate reason for declining to discipline the accused and resorting to other methods of remedying the situation. It makes no sense, the Court concluded, to tell employers that they act at their legal peril if they fail to impose discipline even if they do not find what they consider to be sufficient evidence of harassment after a full and fair investigation. 145 The Eighth Circuit held that an employer took immediate and appropriate corrective action because the employer investigated the alleged misconduct, comments regarding sexual activities and an offensive touching, within four days and reprimanded the harassing co-worker (probation with the threat of termination if the misconduct persisted). The employer also reprimanded a witness that failed to intervene on the complainant’s behalf and failed to independently report the misconduct to a supervisor. 146 Likewise, the Tenth Circuit held that an employer took immediate and corrective action, and therefore avoided liability, because the employer immediately suspended the alleged harasser pending the completion of the investigation and ultimately demoted the alleged harasser based on the findings of the investigation. 147

But the Ninth Circuit found that an employer failed to take immediate and appropriate corrective action where a correctional officer repeatedly complained about inmates exposing themselves to

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