Investigating Sexual Harassment Complaints: Promptness Pays


by Roger Miller

Miller, Roger
rmiller@mcgrathnorth.com
(402) 341-3070

A company’s prompt response to a sexual harassment complaint is critical to its ability to defend itself. In a recent opinion, the United States Court of Appeals for the Eighth Circuit discussed, at some length, the importance of prompt investigations of claims of sexual harassment, and how they can help insulate an employer from potential liability.

Veronica Alvarez worked for the Des Moines Bolt Supply Company until she resigned in May 2006. Beginning in September 2005, she recorded in her journal, various incidents of offensive conduct directed at her by non-supervisory co-workers and one male employee who made sexually explicit comments and touched her inappropriately, on more than one occasion. Alvarez complained to other employees, including a receptionist with human resource responsibilities, as well as her supervisor. It does not appear from the record that either of those two persons did much and, in fact, couldn’t recall whether they took any action at all!

In January 2006, Alvarez complained that the co-worker had “slapped her on the butt,” made sexual advances, commented on her breasts, and handed out a joke flyer that someone found offensive. It was at this point that the employer began to investigate the allegations. The operations manager interviewed employees and collected written statements from several of them. Some employees reported that they had overheard Alvarez and the co-worker about whom she complained, exchanging dirty jokes and smacking each other’s buttocks over a period of 12-18 months. The manager’s investigation concluded that it appeared both employees had engaged in conduct prohibited by the Company’s policy against sexual harassment. Violations of that policy were dealt with by corrective action up to and including termination.

As a result of the investigation, both employees were suspended for 5 days. After she returned from her suspension, Alvarez claimed other co-workers made sexual advances, commented on her breasts, and grabbed her arm. She did not, however, report any of those incidents to any supervisor or management employee before she resigned in May 2006. Following her resignation, she filed suit alleging sex discrimination and retaliation under both Title VII of the Civil Rights Act, as well as the Iowa Civil Rights Act.

The district court granted the Des Moines Bolt Company’s motion for summary judgment on the discrimination claims because it felt the Company had taken prompt remedial action in response to the pre-suspension harassment and because the Company did not have knowledge of the post-suspension harassment.

On appeal, Alvarez claimed that her suspension was, in fact, in retaliation for her having complained about harassment. However, the Eighth Circuit held that as long as the Company honestly believed that Alvarez violated its policy against harassment, and acted on that basis, it was not liable for discrimination. The court noted: “If the employer takes an adverse action based on a good faith belief that an employee engaged in misconduct, then the employer has acted because of perceived misconduct, not because of protected status or activity.” The court also rejected Alvarez’s claim that harassment was the determinative factor in her suspension because if she had not complained, the Company would never had conducted an investigation which resulted in her suspension, noting that the filing of a harassment complaint does not insulate an employee from the consequences of violating Company policy.

The Eighth Circuit noted that an internal investigation, like any judicial proceeding, often produces conflicting evidence and requires judgments about credibility and the weight to be given various pieces of information. Since the evidence uncovered by the Company here indicated that both employees may have violated the policy prohibiting harassment, had the Company disciplined only the male employee, he might very well have a cause of action for disparate treatment based on his sex. In short, the evidence  demonstrated to the court that the Company had sufficient information from other witnesses to demonstrate that both employees may have violated the Company’s policy.

Employers may not be able to always prevent sexually inappropriate behavior in the workplace. However, employers can minimize their risks for liability, if such harassment occurs, if they:

  • adopt and periodically remind employees of their policy against harassment;
  • include in that policy a provision which informs employees how to file a complaint of  harassment;
  • document when a complaint is filed; and
  • conduct a prompt and thorough investigation.

Interview witnesses identified by a complaining party, as well as potential witnesses identified by the alleged offender. Be sure to document dates, times, events, and observations, and have statements by employees signed and dated. It is also advisable to try to identify other non-interested persons who may have seen or observed the alleged conduct, or who may be able to confirm that it, in fact, never occurred. Ever more frequently, the thoroughness of the investigation and the promptness with which it was conducted are as much a part of a sex harassment lawsuit as the conduct about which the employee has complained. Conduct such an investigation quickly and thoroughly, and be sure and document what you uncover.

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