How do you handle internal discrimination complaints? If you use an ad hoc process, sometimes taking notes or preparing a report, you may be missing out on an important litigation advantage later. Develop a routine investigation process that includes preparing a report that summarizes interviews, the facts as you see them and your conclusions, including any disciplinary actions.
You then will be able to use the report in court to help establish that you had legitimate, nondiscriminatory reasons for the action you took.
Recent case: Roy Brauninger, a 50-year-old white male, was hired as a manager to supervise a financial services branch office. About a year into his service, the HR office received a report that Brauninger had made sexually harassing comments. HR launched an immediate investigation, speaking with the alleged victim first.
Soon, HR learned that Brauninger’s alleged comments included racist and sexually explicit ones, including allegations that he had hired a woman because of her breast size. The HR professionals who conducted the interviews decided to terminate Brauninger immediately, based on violation of the company’s sexual harassment policy. The HR director then prepared a written report, summarizing the evidence, conclusion and decision.
Brauninger was fired and sued, alleging age, sex and race discrimination. He asked that the report not be admitted into evidence. But the court said the report was evidence, even if it contained hearsay. It was prepared in the ordinary course of business and showed why the company fired Brauninger. The company could use the report to show it relied in good faith on allegations against Brauninger. It didn’t have to absolutely prove those allegations were true.
A lower court tossed out Brauninger’s case, and a federal appeals court later upheld that decision. (Brauninger v. Motes, et al., No. 07-30228, 5th Cir., 2007)
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