Labor & Employment law - Employers only

The supervisor who conducted the investigation performed a voluminous six-week investigation into the claims against the co-worker who was alleged to have inappropriately touched the female employee. However, the female employee complained that the investigation was not even-handed, sought to protect her male co-worker, and the employer as a whole, failed to look into questions of an employer-wide culture of harassment, and treated the female employee with hostility. For instance, she alleged that the investigator failed to include in his report that he himself had observed the male co-worker make sexual comments, jokes, and remarks. Also, the investigator avoided asking witnesses, the female’s peers, if they had observed sexual behaviors within the workplace. The investigator blurred his intent when interviewing a citizen who interacted with the female employee immediately following one alleged inappropriate incident, stating “it was important to me not to damage our image any more than it was.”

The investigator omitted from the investigative report that he male co-worker admitted he may have had an erection during his interactions with the female employee, stating “[h]e's a man. You can have an erection every day.”

Choosing the wrong person to investigate a sex harassment allegation?

The judge was critical of the employer as being too quick in setting aside the male co-worker’s actions, and underestimating the objectively hostile nature of assigning an alleged harasser to investigate the female’s complaints.  The court explained its reasoning as follows: A federal court must consider harassment by all perpetrators combined when analyzing whether a victim has alleged the existence of a hostile work environment.  This includes all incidents of alleged harassment regardless of whether the harasser is an employee or a co-worker.  In this case, the incidents of claimed harassment include all of the female’s accusations including the assignment of the supervisor who made lewd comments to investigate. The Court explained that a reasonable person may find this pattern of behavior humiliating, when combined with the other allegations.

The court explained that an alleged act’s proximity in time to the harassment at issue is important.  In this case, in a two month period the investigator made sexually degrading comments to the female employee, and then the employer elevated him to the sole workplace investigator into the male co-worker’s allegedly violent assault on the female employee. The court felt that the investigator’s sexual commentary and the employer’s assignment were both key elements of the employee’s hostile work environment claim, occurred in rapid succession, and gave the investigator’s words and comments extra relevance.

Florida business owners and Human Resource professionals should use this recent case for guidance in selecting an appropriate investigator.  If the investigator is perceived as not being impartial, it can not only sabotage the employer’s investigation, but it can actually be used as evidence of discrimination and retaliation!

In denying the employer’s Motion, the Court agreed it was a question of fact whether a reasonable worker would find the substance of the employer’s investigation, including who was appointed to lead it, materially adverse. The investigator was one of only two people the female employee had filed a formal complaint against. The employer’s decision to appoint him to lead the investigation, in all likelihood meets this less onerous standard of adverse employment action. The Court declared that a reasonable employee very well may be dissuaded from making or supporting a charge sex discrimination if the person conducting the investigation, was also someone accused of the harassment. A reasonable employee would be less likely to bring such a charge of discrimination.  Ultimately the Court ruled that it was for a jury to decide whether the employer’s appointment of the investigator falls into the category of just a minor annoyance.

Florida employers can avoid a similar situation by taking steps to determine who will conduct the investigation. Do you have a trained investigator on staff?  Do you need to consider external investigator to ensure both independence and the absence of bias? A trained professional can serve as witness in the event you end up in litigation. Also, an outside third party, such as an experienced employment attorney, can best indicate how the company responded and do so in professional and unbiased manner.

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The female employee sued the employer, characterizing the investigation as a “sham” and “window dressing.”  She claimed that the appointment of the investigator who, himself joked about to masturbation was an act of retaliation, and that it contributed to the continued hostile work environment she had experienced. Brown v. City of Allen Park, No. 17-12403, 2018 U.S. Dist. LEXIS 135857, at *5 (E.D. Mich. Aug. 13, 2018). The “facts” included in this article are those as set forth in the court’s opinion.

The employee sued her employer in federal court alleging (1) hostile environment sexual harassment, (2) sex discrimination, and (3) retaliation, all in violation of Title VII of the Civil Rights Act of 1964.The employer filed a Motion for Summary Judgment in an effort to dispose of the case without a trial.  Although the court granted the motion regarding the claim of sex discrimination, but denied the motion as to the employee’s claims of hostile environment sexual harassment, and retaliation.  This means that the employee will be permitted to present her case to a jury on these claims.

In reaching this conclusion, the federal judge noted that there was “objective hostility in assigning an investigator known for making lewd sexual comments.” 

Florida businesses should understand that in this recent case, the judge determined that the choice of investigator was related to the sex discrimination claim.  Specifically, the individual the employer empowered to resolve the sex harassment complaint signaled exactly the type of intimidating, hostile, or offensive work environment which was being asserted by the female employee.  The Court’s ruling guides employers that their failure to assign a neutral investigator, and to instead empower someone sexually hostile, can also be reasonably interpreted as retaliation for filing the formal complaint.

In explaining why the female employee’s claims of hostile environment sexual harassment, and retaliation to move forward, the court explained that part of its decision was based on the allegations concerning the choice of investigator and the substance of the investigation, which sufficiently demonstrated a policy tolerant of an objectively hostile environment.

What happens to a Florida employer that makes the mistake of tasking the wrong person to conduct an investigation of sexual harassment?

A recent case should help Florida businesses and HR professionals answer this question.

Tracie worked in a predominantly male workplace, and at time was the only female employee.  After a series of incidents where a male co-worker inappropriately touched her, she reported these incidents as well as the problematic commentary of her superior.  Specifically, she alleged that her supervisor recently asked her if she liked to masturbate while performing her job duties. The employer responded to the female employee’s complaint, by appointing the same male supervisor that she had just complained about to investigate the complaint.

The female employee and her union representative requested the investigation be conducted by a neutral outside party. Despite these concerns, the employer insisted the investigation would be conducted by the supervisor who made the masturbation comment.

After the investigator concluded the six-week investigation and issued a 36-page report with his findings and conclusions, he determined of the twelve interactions the female employee reported, only one could be substantiated. The investigator determined the male co-worker had violated internal employment rules regarding conduct unbecoming department personnel, but found no proof of sexual harassment. As a result of the investigation, the employer gave the male co-worker three days paid time off and transferred him to a different position.  The employer prevented the male co-worker from working as the female’s superior on the regular work schedule, however, overtime was not similarly limited. In order for the female to pick up overtime hours she risked the male employee acting as her direct supervisor which occurred more than ten times before she determined she would no longer take overtime because of the likelihood of having to interact with this male. The employer’s top administrator, overseeing policy development, staffing and finances admitted he never read the investigation report.

Law Office of David Miklas, P.A.