Employers know they have to investigate sexual harassment complaints. It’s the only way to avoid liability in some sexual harassment cases.
Conducting a thorough investigation will protect the company if it roots out and ends co-worker harassment or a supervisor’s sexual overtures that haven’t yet led to an adverse employment action.
So, naturally, the HR department will want to act fast when an allegation surfaces. And of course it would make sense to take prompt action if the complaint seemed solid. But what if your zeal to nip harassment in the bud meant you didn’t investigate as thoroughly as possible?
Good news: Your investigation doesn’t have to be perfect—just prompt and reasonable. And if that means you end up punishing an employee who claims he didn’t harass anyone or didn’t deserve to be disciplined, you’re unlikely to be punished yourself. Courts probably won’t second-guess your good-faith investigation or conclusions.
Recent case: Jimmy Cupples, who was 62 years old and had worked for his employer since 1974, was fired shortly after a female employee complained to the general manager that Cupples had pinched her buttocks and said, “I just had to do that.”
The manager contacted headquarters, which began an investigation into sexual harassment. Cupples was told to avoid the woman, but instead approached her the next day to apologize.
The HR office interviewed nine employees and learned that another female claimed she also had been pinched. Then Cupples, despite a company policy that said all investigations were confidential, approached the second woman to ask whether she was going to be a character witness.
The company then suspended Cupples and fired him a few days later for inappropriate workplace behavior, insubordination and breach of confidentiality.
He fired back with an age discrimination lawsuit, claiming the investigation was just a sham to get rid of him because of his age. Cupples also claimed the company didn’t conduct a thorough investigation.
He said that if it had, it would have learned that the first complainant had once indicated she could use sexual harassment as a way to get even. Cupples claimed she watched a sexual harassment video and was heard to say, “If they make me mad, I know how to get them.”
The 4th Circuit Court of Appeals dismissed the case. It reasoned that Cupples hadn’t shown that the company’s stated reasons for firing him were just an excuse for age discrimination. It said the court “does not sit as a kind of super-personnel department” weighing whether an investigation was inadequate. If it was conducted in good faith, that’s enough. (Cupples v. Amsan, No. 07-1403, 4th Cir., 2008)
Final note: Employers often face seemingly impossible choices between potential lawsuits. This case should set HR managers at ease. If you act reasonably and in good faith, your decision won’t be second-guessed. It also shows how important it is to have a clear set of policies. Cupples was fired not just for sexual harassment, but also for insubordination.
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