Preventing Workplace Harassment, Discrimination, and Retaliation

To avoid discriminatory investigations, all parties must be given an opportunity to respond to the allegations of the other. 203 An employer must also complete an investigation into harassment even if the harassment stopped, because the employer has a duty to both: (1) end harassment; and (2) deter future harassment by the same offender or others. 204

Case Studies on Discriminatory Investigations

Aguilar v. Avis Rent a Car Systems 205 When a client of Avis Rent a Car reported having left behind a calculator in a rental vehicle and the calculator could not be found, the employer initiated an investigation. The investigator, however, only questioned Latino employees about the suspected theft of the calculator. The calculator was subsequently found. The Latino employees filed a lawsuit alleging discrimination and harassment because of race and identified the investigation as one of the actions supporting their lawsuit. The jury found in the employees’ favor and the judge issued an injunction ordering the employer to cease and desist from conducting discriminatory investigations. Fuller v. City of Oakland, California 206 A female employee made a complaint to employer City about a male co-worker sexually harassing her. The investigator never interviewed the alleged harasser. During the course of the investigation, the investigator discontinued the investigation without a good reason.. The Ninth Circuit Court of Appeals found that the City failed to take appropriate remedial steps once it learned of the sexual harassment and was therefore liable under Title VII for a hostile environment and sexual harassment.

D ETERMINING THE A PPROPRIATE R EMEDY FOR F INDINGS OF H ARASSMENT , D ISCRIMINATION , OR R ETALIATION

Section 13

It is unlawful for an employer who knows or should know of harassment to fail to take immediate and appropriate corrective action. 207 Remember, the employer has a duty to both stop the current harassment and prevent future harassment of its employees. 208 Example: A City was liable for its decision not to take remedial action because the harasser had stopped his inappropriate conduct. The Court held that by doing nothing but hoping the harasser did not repeat his misconduct, the City effectively ratified the harassment. Instead, the City should have taken some kind of remedial action, whether it was to discipline the harasser or do something else to deter future harassment by any of its employees. 209

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 53