Consider hiring outside attorney to conduct harassment investigation

The 8th Circuit Court of Appeals has refused to reinstate a case involving sexual harassment in which the alleged harasser claimed he was fired because of racial bias.

The case demonstrates that a careful investigation that follows internal rules on reporting and investigating sexual harassment won’t be second-guessed by a judge, unless there is compelling evidence of some other bias.

It also shows that sometimes, the best investigator comes from outside the organization.

Recent case: Brett, a black man, was promoted within the HR department at the University of Minnesota Physicians. His new job included managing diversity recruitment, conducting HR training sessions, conducting HR investigations and handling HR complaints. He received a raise and was paid over $100,000 per year.

Later, he would claim that he succeeded at his job despite institutional racism and a lack of support for his efforts to diversify the practice’s workforce. He alleged, for example, that the physicians’ group ignored protocols that he had designed to ensure race was not factored into hiring decisions.

He said that when he raised these issues internally, he was accused of racism and favoring black employees.

However, Brett’s problems really began when a paralegal who worked with Brett alleged that he had sexually harassed her. She claimed that he had invited her to happy hour during her first week on the job. When she showed, no one else except Brett was there. He allegedly acted “flirty,” and later that night, she received a text message from Brett asking her to join him for an evening out.

Later, the paralegal claimed Brett began touching her knee, complimenting her clothing and asking her if she would date a married man. At first, she ignored his comments, but finally told him to stop. Then she reported the conduct to HR.

The physicians’ group retained an outside attorney to conduct an investigation into Brett’s alleged conduct. That investigation uncovered other instances of apparent inappropriate conduct. Based on the report and the practice’s harassment policy, Brett was terminated.

He sued, alleging racial discrimination.

The trial court dismissed his case, reasoning that the physicians’ group had conducted an impartial investigation and uncovered conduct that violated the harassment policy. Brett couldn’t point to another employee who had received more favorable treatment or any evidence to otherwise support his race discrimination claims.

He appealed the dismissal, but the 8th Circuit Court of Appeals refused to reinstate his lawsuit. (McNeal v. University of Minnesota Physicians, 8th Cir., 2018)

Final note: There are distinct advantages to outsourcing sexual harassment and other discrimination investigations.

First, such a move shows you are interested in a fair and impartial process aimed at discerning the truth. This is especially important if the subject of the investigation happens to have filed his or her own discrimination complaint. Outside investigators can’t be swayed by knowledge of an earlier complaint. That helps prevent a retaliation claim.

Second, an outside investigator may feel more trustworthy and may inspire confidence in witnesses who may not want to talk to an HR representative for fear of reprisal.