Finding the Facts - Disciplinary and Harassment Investigation

Similarly, in Varner v. National Super Markets, Inc. , 13 the court held that an employer’s notice of improper conduct, even though the employee failed to follow the employer’s procedures for reporting misconduct, triggered the employer’s duty to investigate.

2. W HAT IF THE C OMPLAINANT D OES N OT W ANT AN I NVESTIGATION ? Sometimes, complaining parties who report an incident of discrimination or harassment request that the employer do nothing. However, honoring such a request could place other employees at risk for discrimination or harassment. Also, “doing nothing” or failing to investigate could place the public district at risk for liability for failure to investigate and failure to take prompt remedial action. Once on notice of an alleged occurrence of discrimination or harassment, the employer must investigate, despite the complainant’s request to “do nothing” or not to investigate. The employer should therefore advise the complainant that it will investigate the complaint, but it should also elicit and address any specific concerns that the complainant has regarding an investigation.

The investigation should proceed even when the alleged victim or other complainant does not request or consent to an investigation.

LCW Practice Advisor

3. W HEN S HOULD THE I NVESTIGATION B EGIN ? The investigation should start within a few days of the receipt of the complaint (if one is filed) or when the employer otherwise becomes aware of possible discrimination, harassment or other alleged misconduct. If an investigation is delayed, memories fade, evidence may disappear, and the employer may be accused of failing to take prompt and effective remedial action. The following cases illustrate this principal:

Cases on Point:

Waymire v. Harris County 14 An employer prevailed in a harassment case in which (1) the supervisor began the investigation on the day the plaintiff complained, (2) the supervisor interviewed the plaintiff, accused harasser and several witnesses within one week, and (3) the employer prepared a report regarding the investigation, forwarded it to management personnel, and reprimanded the “harasser.” Werger v. City of Ladue 15 An employer prevailed in a harassment case where (1) numerous co-workers witnessed some of the objectionable conduct, (2) the Department Head immediately separated the accused from the accusers, ending the harassing behavior, and (3) the department head conducted an immediate and thorough investigation.

Disciplinary and Harassment Investigations ©2020 (e) Liebert Cassidy Whitmore 9