Finding the Facts - Disciplinary and Harassment Investigation

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. 172 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. 173 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. 174 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 her and screaming sexually derogatory obscenities to her. The employee complained of the behavior to numerous superiors who made no effort to stop the behavior and, in fact, intervened when the employee attempted to discipline the inmates for the exhibitionist behavior. 175 The Tenth Circuit also held that an employer failed to take immediate and appropriate corrective action because the employer did not investigate the complainant’s allegations until six months after the misconduct occurred, and only after another employee reported misconduct by the same alleged harasser. The Court determined that the employer, and in particular the complainant’s supervisor and upper-management, knew or should have known of the alleged harassment when the complainant first reported the misconduct to her direct supervisor. 176 The California Court of Appeal reversed the jury’s verdict for the employer because the employer was aware that the employee was sexually harassed but took no preventive action. Under FEHA, employers may be liable if nonemployees sexually harass an employee, and the employer knows or should have know of the conduct and fails to take immediate and appropriate corrective action. The jury found that the halfway house residents sexually harassed the plaintiff and that plaintiff’s supervisors were aware of the hostile work environment. However, there was no evidence that plaintiff's supervisor or employer took any corrective action. 177 As another example, a hotel housekeeper asserted viable claims under FEHA when she claimed her employer failed to take reasonable steps to prevent a trespasser from sexually harassing and assaulting her. 178

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 80