Finding the Facts - Disciplinary and Harassment Investigation

B EGINNING THE I NVESTIGATION

Section 5

A. P RELIMINARY I SSUES TO C ONSIDER P RIOR TO S TARTING THE I NVESTIGATION In some circumstances, interim steps may need to be taken before the investigation is completed. In situations involving harassment or discrimination complaints, the employer should assess whether interim corrective action should be taken so that the risks of continuing harm and liability are minimized. In one case where the employer ultimately terminated the employee but delayed the investigation and resolution of the matter, the Court upheld a verdict against an employer for intentionally inflicting emotional distress. 74 Failure to take immediate action, especially where such action can be easily taken, may create additional liability.

Districts should not abdicate their duty to conduct a full and complete investigation to law enforcement authorities, even when the employee’s misconduct involves criminal activity or triggers those provisions of the Education Code that provide for the immediate placement of an employee on either a mandatory or optional leave of absence. 75

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Interim steps may include temporary transfer, placing the alleged wrongdoer on administrative leave, temporarily changing office locations, assigning an interim supervisor, or other temporary response designed to respond to the alleged offending situation. In deciding which interim measures to adopt, consider the option that has the least negative impact on the complainant. In Swenson v. Potter, 76 an employee complained she was subjected to sexual harassment by a male coworker. During subsequent litigation, the employee claimed that the employer violated Title VII by failing to take appropriate corrective action in response to her complaint. However, the court noted that the employer separated the two employees by moving the complainant to a different position, and initiated an investigation. The court noted that while it is not proper to transfer a complainant to a less desirable location, an employer has broad discretion to choose how to minimize contact between the two employees. The court held that there was no evidence indicating that the position the complainant moved to was less desirable than the one she occupied at the time of her complaint.

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