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Employers Must Not Let Appearances Deceive in Internal Investigations

Posted by Frank Steinberg | Sep 12, 2016 | 0 Comments

As a general rule, employers are protected from liability if they make a good faith effort to conduct a prompt and fair investigation when an employee complains of harassment.  Mistakes made in good faith usually will not undo the good that the investigation has done.  But there are limits.

Consider this from the recent Second Circuit decision in Vasquez v. Empress Ambulance Service, Inc

In the space of twenty-four hours, [plaintiff] faced unwelcome sexual advances in the workplace, complained about that conduct to her employer, and lost her job. . . . Within a few hours [of the complaint plaintiff's] co-worker had discovered her complaint and had provided the employer with false documents purporting to show [plaintiff's] consent to and solicitation of a sexual relationship. In reliance on those documents, and notwithstanding [plaintiff's] offers to produce evidence in refutation, [the] employer immediately fired her on the ground that she had engaged in sexual harassment.  (Emphasis added.)

The opinion is short and worth a read.  It details the complaint's allegation that the harasser dummied up evidence to fool the employer into thinking that the victim had entered into a consensual relationship with him.  Unfortunately, the employer bought it, even though there was reason to question whether the evidence was authentic.  Worse, the employer refused the plaintiff's request for an opportunity to refute the falsified evidence when she told them she could do so.

The Second Circuit's opinion held that there was enough alleged in the complaint to allow a jury to conclude that the employer was negligent in the way that it conducted the investigation, and therefore was potentially liable to the plaintiff.

You might ask yourself why the employer should be held liable since it did nothing wrong and harbored no discriminatory intent towards plaintiff.  The answer is “cat's paw liabililty.”  If an employer, which has no unlawful intent, allows its decision-maker to be influenced by another employee who does have an unlawful intent and takes adverse employment action against the plaintiff as a result, the company is liable.  We earlier addressed Supreme Court precedent on the cat's paw theory here.

The lesson?  Corporate investigations need to be conducted with a certain skepticism and hard-headedness.  While it can be tempting to take pictorial and electronic evidence at face value, it's important to remember that such evidence is easily manipulated and not quite as it seems.  Employers need to be alert to investigations that can be safely handled in-house, and those that might better be farmed out to an outside investigator.  This case shows how the courts may be increasingly willing to look into how an investigation was conducted before giving companies a pass on liability.

H/T Connecticut Employment Law Blog for bringing this case to our attention.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...


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