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Conduct truly independent investigations to ferret out retaliation by rogue supervisors

by on
in Discrimination and Harassment,Human Resources

Earlier this year, the U.S. Supreme Court’s Staub v. Proctor Hospital decision slammed supervisors who lob­bied to get a subordinate fired for discriminatory reasons. The court essentially said that employers are liable for the discrimination perpetuated by supervisors unless they can show that, before accepting a supervisor’s termination recommendation, they conducted an independent investigation.

The take-away for most HR professionals: As long as an employer doesn’t merely rubber-stamp a supervisor’s recommendation (that might have been based on prejudice or the desire to retaliate against the subordinate), it could fire the subordinate without liability.

But that’s just a shorthand way to describe the idea of an independent investigation. There’s more to it than that, as the 3rd Circuit Court of Appeals recently demonstrated.

Employers that don’t conduct a truly independent investigation—including allowing the subordinate to present his version of events—can still be liable.

Recent case: Ray Carnation, who is white, worked as a police offi­­cer for the Philadelphia Police Depart­­ment until he was terminated.

Carnation claimed he was fired because his supervisor wanted him out of the police department after he complained that minority officers were being treated in a racially discriminatory way. Carnation had complained to the squad captain that he and several minority officers were often ordered into dangerous neighborhoods with no back-up. He also alleged that the squad captain told him that if he complained to the EEOC, his life would become a “living nightmare.”

Carnation didn’t let up and instead demanded a meeting to discuss the problem. In fact, he called the squad captain and other supervisors despite having been ordered not to.

That’s when the squad captain recommended bringing charges of in­­subordination against Carnation. At the hearing, Carnation wasn’t allowed to ask questions and learned that he was also being charged with conduct unbecoming an officer. Then he was discharged.

Carnation sued, alleging that he had been fired in retaliation for complaining about discrimination.

The police department argued that Carnation had an independent hearing and that three individuals other than his squad captain decided to terminate him based on the evidence. It said the supposedly independent in­­vestigation effectively canceled out any retaliatory motive the squad captain might have had.

The jury sided with Carnation and awarded him $2 million.

Then the department appealed, but the 3rd Circuit Court of Appeals re­fused to reverse the jury decision. It reasoned that the investigation was not independent enough to cut off liability. (McKenna, et al., v. City of Phila­delphia, No. 09-3567, 3rd Cir., 2011)

Final note: How independent does the investigation have to be? At the very least, the process should allow the employee to speak up and present his side of the story.

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