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Employment Law Blog
James Tarquin, P.A
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An Employer’s Bad Faith Investigation Of A Sexual Harassment Complaint: Instructing A Witness To Provide Misleading Information

The sexual harasssment sign

Title VII of the Civil Rights Act of 1964 (Title VII) protects employees from sexually harassing behavior that is sufficiently severe or pervasive to create a hostile or abusive working environment.  Once an employer knows or should know that an employee is being subjected to sexually harassing behavior, a remedial obligation is triggered.  The employer’s remedial obligation is not satisfied until prompt and effective remedial action has been taken.  As part of an employer’s remedial obligation, as explained by the U.S. District Court for the Southern District of New York in Hill v. Children’s Village, 196 F.Supp.2d 389, 399 (S.D. N.Y. 2002), “Title VII imposes a duty on the employer to conduct a prompt and thorough investigation” of a sexual harassment complaint. 

Because an employer’s remedial obligation is not gratuitous or optional, as observed by the U.S. Ninth Circuit Court of Appeals in Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001), “the fact of investigation alone is not enough.”  Rather, as the Potter court ruled, “[a]n investigation that is rigged to reach a pre-determined conclusion or otherwise conducted in bad faith will not satisfy the employer’s remedial obligation.”  Having represented victims of sexual harassment for more than 15 years, our Central Florida sexual harassment attorneys learned that many sexual harassment investigations are a sham and invariably conclude that no sexual harassment had taken place.  A recent decision by the New Jersey Supreme Court in Griffin v. City of East Orange, 225 N.J. 400 (2016) illustrates that evidence showing an employer conducted an investigation in bad faith is directly relevant to establishing the employer’s liability for hostile work environment sexual harassment.

Witness Instructed To Provide Misleading Information

In that case, Toninqe Griffin (Griffin), Virginia Best (Best), and Rosalyn Walker (Walker) brought sexual harassment claims under Title VII against the City of East Orange, New Jersey (City).  The employees alleged that they were sexually harassed by their supervisor.  Griffin and Best claimed that the supervisor kissed them.  Walker claimed that the supervisor repeatedly told her that he was attracted to her, loved her, wanted to be “more than just friends,” and tried to kiss her.  The supervisor denied the allegations of sexual harassment.

After the three women internally complained about the supervisor’s sexually harassing behavior, the City hired an employment lawyer to conduct an investigation of their allegations.  During the investigation, Corletta Hicks (Hicks), an aide to the Mayor of the City, made statements to the investigator that undermined the women’s allegations and supported the credibility of the supervisor.  Hicks claimed that Griffin and Best “have always been a mess,” that Griffin “preys on older married men,” that she suspected Griffin had a “personal relationship” with the supervisor, and that Griffin had significant financial problems and her sexual harassment allegations were an effort to “take money from the City.”  Hicks further claimed that Griffin considered Best’s allegations a lie and an attempt to “jump on the gravy train.”  In contrast, Hicks characterized the supervisor as a “phenomenal director” who acted professionally in the workplace.  Seizing on the information, the investigator relied on Hicks’ representations in concluding that none of the women had been sexually harassed.   

After the lawsuit was filed, Hicks testified at her deposition that the Mayor spoke with her before she was interviewed by the investigator.  Hicks claimed that the Mayor instructed her to make negative comments about Griffin, to praise the supervisor accused of sexual harassment, and to provide the investigator with misleading information.  According to Hicks, the Mayor also instructed her to “make sure I’m not involved in it.”  Hicks testified that she told the Mayor, “yes sir, I got this.”    

Evidence Of Bad Faith Investigation Is Relevant & Admissible 

At trial, the three women sought to elicit testimony from Hicks regarding her misleading role in the sexual harassment investigation and the instructions she received from the Mayor.  The trial judge barred Hicks’ testimony.  Nonetheless, the trial judge allowed the investigator to testify about her conclusion that no sexual harassment occurred, including testimony about her reliance on Hicks’ representations in reaching her conclusion.  In other words, the trial judge incredulously allowed the jury to hear about Hicks’ representations to the investigator, but did not allow the jury to hear about information that fatally undermined those representations.  After losing the jury trial, the three women appealed and argued they were entitled to a new trial because the trial judge’s exclusion of Hicks’ testimony regarding her misleading role in the sexual harassment investigation was miscarriage of justice.  The New Jersey Supreme Court reversed the trial judge’s exclusion of Hicks’ testimony and ordered a new trial.

In reversing the discredited trial judge, the New Jersey Supreme Court found that Hicks’ testimony was directly relevant to whether the City took prompt and effective remedial action after receiving the women’s internal complaints of sexual harassment.  The New Jersey Supreme Court also found that Hicks’ testimony was directly relevant to the City’s contention that it “took reasonable steps to prevent sexual harassment, and to respond to the [women’s] allegations when it learned of them.”  The New Jersey Supreme Court further explained that if the jury were to believe Hicks’ account of her conversation with the Mayor, it could conclude that the “City’s most senior official materially interfered with an independent investigation of the [women’s] claims.”  Such a finding, the New Jersey Supreme Court reasoned, would support the women’s claim that the City failed to take prompt and effective remedial action after learning of the sexual harassment.     

Free Consultation With Central Florida Sexual Harassment Lawyers 

Based in Ocala, Florida and representing employees throughout Central Florida, we have substantial experience representing employees who have been subjected to sexual harassment in the workplace.  If you have been the victim of sexual harassment, or have questions about an employer’s investigation of a sexual harassment complaint, please contact our office for a free consultation with our Ocala hostile work environment harassment attorneys.  Our employee rights law firm takes sexual harassment cases on a contingency fee basis.  This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover. 

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