Protect against retaliation suits by conducting independent and ‘blind’ internal investigations

Employers can’t punish employees for complaining about alleged discrimination or harassment. That’s true even if the complaint doesn’t pan out, as long as the employees complained in good faith.

But judges don’t want employees to use the threat of a retaliation lawsuit as a way to circumvent fair discipline, either.

There’s a way for employers to get judges on their side. Make certain that employees who initiate the disciplinary process don’t know anything about the earlier complaint, and you’ll be well on your way.

Recent case: Eileen Connolly and several other female employees worked at a T.J. Maxx retail store in Kings Park. The women claimed that their male manager repeatedly made sexual comments and jokes.

For example, while processing a package of men’s underwear, he remarked that he believed the models on the packaging “stuffed” their underwear for the photos. Another time, the manager put on a pair of women’s thong underwear over his clothing and called employees into his office to see.

The women complained to management, which launched an investigation. After interviewing everyone involved, the investigation team told the manager his conduct was unacceptable and that he would be fired if it happened again. He was also instructed to apologize to store employees and thank them for using T.J. Maxx’s open-door policy to bring the problem to management’s attention.

Shortly after, a loss-prevention employee began investigating unusual activity in the store’s layaway department. She didn’t know anything about the sexual harassment complaints and didn’t even know which employees she was investigating for suspected layaway abuses. Instead, the investigation relied on analyzing layaway data.

It turned out that several of the complaining women had placed merchandise on layaway longer than the 30-day maximum allowed by company rules. By rolling over their layaways for additional 30-day periods, they managed to remove the merchandise from the floor and secure additional markdowns when they finally paid for the goods. The employee handbook specifically said this offense meant termination.

When T.J. Maxx fired the women, they sued. First, they alleged sexual harassment. That claim was dismissed because none of the sexual comments was directed at the women on account of their sex.

Second, they claimed they were terminated in retaliation for filing their complaint. But the judge said they couldn’t prove that the layaway investigation was connected in any way to their complaint. After all, reasoned the judge, the layaway investigation was initiated by someone who knew nothing about the harassment complaint and didn’t even know which employees might be implicated in the layaway abuse until after completing the investigation. (Connolly, et al., v. The TJX Companies, No. 07-CV-3282, ED NY, 2010)