SLY OR SENSELESS? INVESTIGATING VAGUE OR WITHDRAWN EMPLOYEE COMPLAINTS

Should we be investigating vague, partial, regretted, or attempted-to-be-withdrawn complaints?

Yes, yes, yes, and yes!

Sly investigators might argue that by giving only partial information or trying to withdraw a complaint and insist that no action be taken, a complainant has not adequately placed an employer on notice that sexual harassment has potentially occurred. They might refer to an Eleventh Circuit ruling where the court said an employer was not put on notice when an employee told a supervisor about harassing phone calls she was receiving but then implored the supervisor to keep the conversation confidential and take no action against the alleged harasser. Nurse Be v. Columbia Palms West Hosp. (No. 06-12159, 11th Cir. 2007).

Similarly slick investigators might also mention Hardage v. CBS Broad, Inc., 427 F.3d 1177 (9th Cir. 2005), a case holding that CBS Broadcasting was not responsible for a supervisor's harassment since it offered to intervene when it learned of the alleged harassment, but the victim insisted that the company not get involved. This line of cases mostly relies upon the Faragher/Ellerth line of cases holding that one of the primary obligations of an employee is to take full advantage of the employer's preventative measures

Based upon this reasoning, perhaps this same sly investigator may choose to abide by a complainant’s request to keep a report of harassment confidential and not initiate an investigation. Hoping that the complainant’s hesitancy to go forward with a complaint will later preclude her from successfully suing the company, some investigators may carefully record a complainant’s precise words and then sit back and decide whether or not the company has been put on proper notice of a complaint.

Such sly investigators are missing the point. If we are in the business of making the workplace a better place, then we need to seize every opportunity to do just that. Allowing potential misconduct to continue and a probable victim to suffer in silence is bad for morale and bad for business. An investigation not only reveals the source of a particular interpersonal conflict, it also affirms to other employees that the organization has a set of core behavioral standards in which there is no place for harassment.

Moreover, courts get persnickety when they think an employee's complaint has fallen on deaf (or just sly) ears. For example, in New York recently, a female employee refused to work a shift with her male colleague but told her supervisor she did "not want to talk about" her specific complaint against him. The supervisor then responded laughingly, "That's good because I don't want to know what happened." The Second Circuit Court of Appeals allowed this female to sue her employer two years later noting that, "[W]hen an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem will not shield an employer from liability." Duch vs. Jakubek, (Dec. 2009, 2d Cir).

The same lesson can be learned from the case of Howard v. Winter, 446 F.3d 559 (4th Cir. 2006), where the court allowed an administrative assistant to bring suit against her company despite the company’s argument that it was never put on notice of any harassment. The complainant told a Human Resources Specialist vaguely that the harasser had touched her and that she had written him a letter asking him to stop. Rather than immediately investigating further into the allegations, the HR specialist told her to come back to see him if the conduct did not stop. Id. at 563-64. The harassment of course continued until a co-worker told another supervisor, and the alleged harasser was transferred out of the plaintiff’s work area. Id. The Fourth Circuit Court of Appeals held that the company was on notice of the plaintiff’s sexual harassment complaint at the time she spoke to the HR specialist and therefore was potentially liable for the harassment occurring between that conversation and the later transfer of the harasser.

Interestingly, the court held, "At the very least, a juror could conclude that it was unreasonable for [the HR specialist] to not ask follow-up questions in an effort to determine the exact way in which McCall put his hands on Howard." Id. at 570.

Here's what we know: The handling of an employee complaint is no place to be sly. Immediately upon learning that an employee feels harassed, no matter how vaguely the complaint is worded and no matter how stridently the complainant pleads for non-action, the company has an ethical obligation to initiate a prompt and thorough investigation. The company needs to take this step in order to protect its employee from possible harassment and also to uncover any other problems that may be lurking in the hallways as a result of the harassment. The fact that a solid investigation may also shield the company from damages down the line further justifies this smart approach.