Sweeping Sexual Harassment Complaints Under The Rug: The Employer’s Bad Faith Investigation
Through their decades of experience handling sexual harassment cases, our sexual harassment lawyers in Citrus County, Florida know that employer investigations of sexual harassment claims are often conducted in bad faith. In far too many cases, an employer’s sexual harassment investigation is conducted in manner intended to provide the employer with factual and legal defenses to any potential sexual harassment lawsuit. In advancing such an agenda, employers ask sexual harassment victims leading questions, ignore relevant evidence, refuse to interview corroborating witnesses, adopt the harasser’s account of events, and seek out information that can be used against sexual harassment victims. Some employers will even launch an investigation into the sexual harassment victim’s workplace conduct and background. The inevitable conclusion reached by the overwhelming majority of employer sexual harassment investigations is that there is no evidence supporting the victim’s allegations of sexual harassment or the victim’s allegations of sexual harassment cannot be confirmed.
In this article, our sexual harassment attorneys in Citrus County, Florida explain how the alleged facts in Kirkland v. Speedway, LLC, 260 F.Supp.3d 211 (N.D. N.Y. 2017) are illustrative of the type of employer sexual harassment investigations that far too many sexual harassment victims endure.
Investigation Of Sexual Harassment Complaints
Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from sexual harassment in the workplace. Once an employer knows or should know of sexual harassment in the workplace, Title VII imposes a remedial obligation on employers. Employers are required to take prompt and effective remedial action that is reasonably calculated to stop the harassment and prevent the harassment from recurring. If the employer fails to take remedial action or takes inadequate remedial action that does not stop the harassment, the employer is liable under Title VII for creating and maintaining a sexually hostile work environment.
As observed by the court in Swenson v. Potter, 271 F.3d 1193 (9th Cir. 2001), “[t]he most significant immediate measure an employer can take in response to a sexual harassment complaint is to launch a prompt investigation to determine whether the complaint is justified.” Indeed, as explained by the court 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 an employer.” However, as pointed out by the Swenson court, “the fact of investigation alone is not enough.” Rather, the Swenson court explained, “[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.” Thus, an employer’s unreasonable or bad faith investigation is a basis for holding the employer liable under Title VII for creating and maintaining a sexually hostile work environment.
Sexual Harassment Lawsuit
In Kirkland, a woman named Kirkland brought a sexual harassment claim against her former employer, Speedway, LLC (“Speedway”), pursuant to Title VII. Kirkland claims that she was required to work in a sexually hostile environment in violation of Title VII.
Kirkland worked as a cashier at Speedway’s gas station. Kirkland alleges that she was sexually harassed by a co-worker, Leeks, during each of the three shifts they worked together. On the first shift, Kirkland testified that Leeks told a co-worker that they were dating and at least once called her “hun.” Kirkland also testified that Leeks was constantly staring at her. On the second shift, Kirkland alleges that Leeks constantly said to her, “How you doing, baby girl? How are you, hun? Can I give you a ride, baby girl? Hun, what’s the matter? Baby girl, what’s the matter?” Kirkland also testified that Leeks inappropriately touched her hand twice, bumped into her on purpose, and stared at her constantly. On the third shift, Kirkland testified that Leeks constantly called her “baby girl.” She further stated that Leeks placed both his hands on her shoulders and was constantly staring at her.
While she was employed by Speedway, Kirkland alleges that Leeks approached her while she was working at her other job at Rite-Aid. Kirkland testified that Leeks asked her to cook for him, asked her to move away with him to Florida, rubbed her arm, and made her feel “completely terrified.” Kirkland alleges that she eventually ran away from Leeks and complained to her Rite-Aid manager.
HR Claims No Sexual Harassment Complaint
After the third incident occurred, Kirkland complained to her supervisor. The supervisor relayed the complaint to the human resources manager, Schroll, who advised the supervisor that she would interview Kirkland six days later. In preparation for her meeting with Schroll, Kirkland composed a written complaint detailing some of her allegations against Leeks, including the alleged incidents on the three shifts they worked together and that Leeks “went to her other place of work” where Leeks “continued the same kind of stuff.”
After receiving Kirkland’s written complaint, Schroll interviewed Kirkland. After interviewing Kirkland, Schroll interviewed Leeks and asked him whether he was aware of any complaints made against him and if he knew of any employees who had a problem with him. Schroll testified that Leeks admitted to touching other people on the shoulder but in a joking manner. Leeks told Schroll that he did not have any romantic feelings for any co-workers and that he was happily married. Leeks admitted to calling other employees “baby girl.”
After her investigation, Scholl concluded that Kirkland “felt uncomfortable and it was best not to schedule them not working together”; however, Schroll decided not to reprimand Leeks. Schroll further believed that there was “no overt sexual action” and that, therefore, Kirkland’s complaint boiled down to Leeks annoying her to the point that she felt uncomfortable. Indeed, Schroll testified that she did not interpret Kirkland’s complaint as a “sexual harassment complaint”; rather, she “thought that there was a complaint about uncomfortableness.”
Schroll testified that she never told Kirkland that she found her complaint unsubstantiated. Schroll also testified that she did not review any previous complaints made against Leeks, one of which in particular, stated that “[c]ontinued actions that create a hostile or unpleasant work environment will lead to termination.”
Employer’s Unreasonable Investigation
Speedway filed a motion with the trial court seeking dismissal of Kirkland’s sexual harassment claim. In moving for dismissal, Speedway argued that it was not liable for the alleged sexual harassment because its investigation into Kirland’s sexual harassment complaint satisfied its remedial obligation under Tite VII. The trial court disagreed and found that Kirkland has presented sufficient evidence for a jury to find that Speedway condoned a hostile work environment “by failing to investigate [Kirkland’s] complaint reasonably.”
In support of its conclusion, the trial court determined that Schroll’s “testimony could reasonably show that she did not take [Kirkland’s] complaint seriously and only minimally confronted [ ] Leeks.” The trial court observed that “a jury could reasonably conclude that Schroll did not properly investigate Kirland’s claim because she failed to consider the previous complaints against Leeks” and “never informed [Kirkland] of the results of her investigation.” The trial also found that “it strains credulity to accept Schroll’s testimony that she did not consider [Kirland’s] allegations as constituting a sexual harassment complaint considering [Speedway’s] broad definition of sexual harassment.” The trial court further pointed out that Schroll “never confronted Leeks regarding [Kirkland’s] complaint that he approached her at her other job, tried to convince her to move away with him, and touched her arms multiple times.”
Citrus County Sexual Harassment Lawyers
Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment attorneys in Citrus County, Florida have fought for the rights of sexual harassment victims for more than twenty years. If you have been required to work in a sexually hostile environment or have questions about an employer’s obligation to investigate sexual harassment complaints, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. 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.
