Employers Have A Duty To Investigate Sexual Harassment Complaints
When an employer knows or should know about sexually harassing conduct in the workplace, the employer is required by Title VII of the Civil Rights Act (Title VII) to take prompt and effective remedial action that is reasonably calculated to end the harassment. As part of an employer’s remedial obligation, Title VII imposes a duty on the employer to conduct a prompt and thorough investigation. As explained by the U.S. Second Circuit Court of Appeals in Malik v. Carrier Corp., 202 F.3d 97 (2d Cir. 2000), “an employer’s investigation of a sexual harassment complaint is not a gratuitous or optional undertaking; under federal law, an employer’s failure to investigate may allow a jury to impose liability on the employer.” As the U.S. Ninth Circuit Court of Appeals observed in Swenson v. Potter, 271 F.3d 1184 (9th Cir. 2001), “by opening a sexual harassment investigation, the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.” Thus, when a sexual harassment victim makes a complaint about unwanted sexual behavior in the workplace, the employer’s initiation of an investigation to determine whether the complaint is justified is a necessary part of the employer’s obligation to take corrective action.
An Investigation Alone Is Not Enough
Although employers have an obligation to investigate sexual harassment complaints, courts have held that employers cannot immunize themselves from liability for hostile work environment sexual harassment simply by conducting an investigation. As explained by the Ninth Circuit in Fuller v. City of Oakland, 47 F.3d 1522 (9th Cir. 1995), the “fact of an investigation alone” is not enough because “an investigation is principally a way to determine whether any remedy is needed and cannot substitute for the remedy itself.” As the Swenson court observed, “an investigation that is rigged to reach a pre-determined conclusion or otherwise conducted in bad faith will not satisfy the employer’s remedial obligation.” Thus, courts have determined that an employer does not satisfy its obligation to take prompt and effective remedial action when it conducts a biased, inadequate, or bad faith investigation.
In Baty v. Willamette Industries, Inc., 172 F.3d 1232 (10th Cir. 1999), overruled on other grounds by National R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the U.S. Tenth Circuit Court of Appeals concluded that the employer’s actions were not reasonably calculated to end the sexually harassing behavior when it “conducted a sham investigation to appease the [victim]” as reflected by the “investigators’ conclusion that no harassment had taken place . . . and [the employer’s] refusal to discipline any of its employees.” Likewise, the U.S. Eighth Circuit Court of Appeals in Ogden v. Wax Works, Inc., 214 F.3d 999 (8th Cir. 2000) found the employer failed to take appropriate remedial action to correct the sexual harassment when it “minimized” the victim’s complaints, “performed a cursory investigation” which focused on the victim’s performance rather than the harasser’s conduct, and imposed no discipline on the harasser. Similarly, the Eighth Circuit in Hathaway v. Runyon, 132 F.3d 1212 (8th Cir. 1997) determined that the evidence justified a finding that the employer failed to take proper remedial action by failing to conduct an adequate investigation when it concluded that the victim’s harassment complaint was uncorroborated and its asserted that it could not impose disciplinary action against the harasser because the complaint was uncorroborated.
The Ninth Circuit’s decision in Fuller illustrates the principle that an employer’s inadequate investigation can serve as a basis for imposing liability against the employer for hostile work environment harassment. In that case, the employer argued that it was not liable for the hostile work environment harassment because the harassment stopped after it learned of the harassment. In rejecting this argument, the Fuller court explained “the fact that harassment stops is only a test for measuring the efficacy of a remedy, not a way of excusing the obligation to remedy.” The effectiveness of the employer’s remedial action after learning of harassment, the Fuller court determined, is “measured by the twin purposes of ending the current harassment and deterring future harassment—by the same offender or others.” Thus, an employer does not satisfy its obligation to remedy the harassment simply by pointing to evidence that the harassment stopped. This is so, the Fuller court reasoned, because an employer’s failure to act cannot shield it from liability when the harasser voluntarily ceases the harassment. Rather, whether an employer has satisfied its remedial obligation also requires an evaluation of what the employer did after learning of the harassment.
In evaluating what the employer did after learning of the harassment, the Fuller court found serious deficiencies in the employer’s investigation. The investigator “often accepted” the accused harasser’s version of disputed events “without taking reasonable and easy steps to corroborate that version,” “failed to interview” a witness favorable to the victim, and “warned” the accused harasser of the claims against him so he could prepare a defense. Even after the accused harasser admitted to some of the harassment and to lying about it, the investigator nonetheless “failed to corroborate” the accused harasser’s explanation of a different alleged incident of harassment. The court also pointed out that the employer failed to reprimand or discipline the accused harasser. Based on this evidence, the Fuller court found that the employer’s investigation was “inadequate” and did not “constitute adequate remedial action.” As a result, the Fuller court determined that the employer failed to take any appropriate remedial action once it learned of the harassment and the trial court should have entered judgment in favor of the victim on her Title VII hostile work environment harassment claim.
Justified Expectations Of A Sexual Harassment Victim
This line of decisions illuminates some of the legally justified expectations of a sexual harassment victim when he or she makes a sexual harassment complaint. First, when a sexual harassment victim makes a sexual harassment complaint, the employer is obligated to conduct a prompt and thorough investigation. To constitute an adequate investigation, the investigation must be conducted in good faith, free of impermissible bias, and not designed to reach a pre-ordained conclusion. Second, it is not a remedy for the employer to take no action simply because the alleged harasser denies the harassment. As the Malik court observed, an employer’s remedial obligation “does not cease because the alleged harasser denies inappropriate conduct.” Third, if the employer’s investigation is inadequate, courts have determined that a factual and legal basis exists for finding the employer failed to take appropriate remedial action and holding the employer liable for the hostile work environment sexual harassment.
We have extensive experience protecting and vindicating the rights of sexual harassment victims. If you have been the victim of sexual harassment, or have questions about an employer’s obligations regarding an investigation of a sexual harassment complaint, please contact our office for a free consultation.