Finding the Facts - Disciplinary and Harassment Investigation

Jacobus v. Krambo Corp. 55 However, an employee did not prevail on a claim of sexual harassment against a co-employee based on mutual sexual banter. The employee and co-employee frequently engaged in sexual conversations, socialized outside of the workplace, and joked about going to a strip club together. The co-employee also shared sexually explicit materials with the employee at the employee’s request. 56

Although state law (under the Fair Employment and Housing Act) discussed above, expressly protects employees from discrimination and harassment on the basis of sexual orientation and gender identify and expression, the issue of whether Title VII provides these same protections was not definitively settled until June 15, 2020, when the United States Supreme Court decided the hallmark case of Bostock v. Clayton County . 57 In Bostock , the Court ruled that Title VII of the 1964 Civil Rights Act protects employees from discrimination, on the basis of their sexual orientation and transgender status. The Court ruled that the plain language of the statute – prohibiting discrimination “because of” sex – incorporates discrimination based on sexual orientation or transgender status. The Court stated: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” For example, if an employer fires a male employee for being attracted to men, but does not fire a female employee for being attracted to men, the employer’s decision is based on sex. The Court explained that “homosexuality and transgender status are inextricably bound up with sex . . . . because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” b. Retaliation Retaliation against a person who brings a good faith complaint of discrimination or harassment or participates in an investigation of discrimination or harassment, is unlawful and violates most districts’ policies. Even if discrimination or harassment is not found to have occurred, if the complaint was made in good faith, the employee may not be retaliated against for making the complaint. 58 However, a filing of a fabricated complaint is not protected and an employee can be disciplined for filing a false harassment complaint. 59

An employer always runs the risk of a retaliation claim whenever the employer disciplines an employee for making a false discrimination or harassment complaint because the discipline follows the protected activity of complaining. Employers are best advised to pursue discipline only when there is unequivocal evidence that the complaint was false.

LCW Practice Advisor

While a single severe adverse employment action such as termination or demotion will suffice to demonstrate retaliation, so too can a series of actions—including unwarranted criticism, unwarranted negative performance evaluations and solicitation of negative feedback from subordinates—which viewed together amount to an adverse employment action. 60

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 17