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If employee refuses to cooperate with investigation, feel free to fire

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in Discrimination and Harassment,Human Resources

Not everyone wants to cooperate when an employer begins investigating discrimination or harassment charges. That’s especially true if an employee’s job is on the line because the charges involve him.

The thinking: Why help dig your own grave? Let HR figure out what happened. Don’t say anything that might court more trouble.

Of course, when employees won’t talk, that puts investigators at a disadvantage.

One solution is to tell all em­­ployees they must cooperate. Otherwise, they risk being disciplined. If that doesn’t work, you now have an option: Go ahead and fire the employee for re­­fusing to help with the investigation.

Recent case: John supervised a staff of subordinates, including a lesbian who married her partner. Around the same time, John proposed putting her on a performance improvement plan (PIP) because he felt she wasn’t working up to capacity. The woman refused to sign off on the PIP. Instead, she went to HR with allegations that she had been sexually harassed and disciplined be­­cause of her sexual orientation and marriage.

HR brought in an attorney to conduct an investigation. All employees were ordered to cooperate, including John. He answered many of the lawyer’s questions, but refused to provide details about how he evaluated subordinates, including the woman at the heart of the investigation.

Others employees, however, provided a wealth of information. They recounted several instances in which John—surrounded by male employees, but excluding women—was said to have told sexually offensive jokes.

The investigating attorney ultimately concluded that the woman who filed the complaint had been neither har­­assed nor discriminated against based on sex or sexual orientation. John was cleared of any wrongdoing and, according to the report, his request for a PIP was legitimate.

However, the investigator recommended that John either lose his job or take an unpaid suspension for re­­fus­­ing to completely cooperate with the investigation. The employer fired John.

He sued, alleging he had been fired for engaging in protected ­­activity. He claimed that refusing to disclose his evaluation methods was an attempt to protect his subordinates’ privacy.

The court didn’t buy it, deciding instead that John had refused to follow rules and specific directives. By ignoring sexual harassment policies prohibiting dirty jokes and by refusing to fully cooperate with the investigation, he revealed professional flaws other than the ones the investigation began looking at. John’s case was dismissed. (McGrory v. Applied Signal Technology, No. H036597, Court of Appeal of California, 2013)

Final note: The employer in this case did everything right—and in the right order. It took a complaint, hired an expert to investigate and took the time to conduct a thorough and fair inquiry. It warned everyone that they were required to cooperate and answer questions to the best of their ability. Then the employer had the expert prepare a comprehensive report containing solid recommendations based on what she uncovered during the investigation.

It also didn’t let the fact that the investigation could not confirm the subordinate’s initial allegation stop it from disciplining John for being uncooperative. There was no rush to judgment. Instead, this was a deliberate and careful process aimed at uncovering what happened.

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