When it comes to determining employee wrongdoing and setting punishment, it’s essential to use a complete and independent investigative process.
Otherwise, the company can wind up being responsible if it turns out that a supervisor who was “out to get” an employee—perhaps in retaliation for filing a discrimination claim— trumped upor other employee deficiencies.
Recent case: James Poland, who was near retirement age and worked for the United States Customs Agency, complained that his supervisor had a clear bias against older workers. The supervisor called older employees “old farts” and often said he was looking for a younger work force.
After Poland complained, his boss started documenting sudden “deficiencies” and asked HR to determine whether Poland was properly doing his job. An investigation followed, in whichused the documents the supervisor provided and a list of witnesses the supervisor suggested. No independent investigation took place and there was no other input.
After the investigation, Poland was transferred out of state. He retired early instead and sued under the federal Age Discrimination in Employment Act.
Poland lost the age-discrimination case but won the retaliation case. The trial judge said the supervisor’s initiation of the investigation into Poland’s performance was retaliation for his earlier age-discrimination claim. When management went along with the supervisor—even without retaliatory intent of its own—the agency became liable for the supervisor’s retaliatory intent.
Now the 9th Circuit Court of Appeals has upheld that ruling. It said that if a supervisor “in response to a plaintiff’s protected activity sets in motion a proceeding by an independent decision-maker that leads to an adverse employment action,” then the supervisor’s bias is imputed to the employer if the employee can prove the adverse employment action (here, the transfer) “was not actually independent because the biased subordinate influenced or was involved in the decision or decision-making process.” (Poland v. Chertoff, et al., No. 05-35508. 9th Cir., 2007)
- Checklist: 15 questions to ask employees in their first 60 days
- Document rationale for all discipline to show it wasn't a pretext for bias
- When disgruntled employees act as their own lawyers, patience may be your winning strategy
- Treat arbitration like any other litigation
- Firing worker during FMLA leave: possibly legal, but usually unwise