The United States Court of Appeals for the Sixth Circuit recently provided employers a useful reminder of how important it is to promptly investigate allegations of harassment, or other types of discrimination, even when it appears that such investigation may be fruitless.
In Jane Doe v City of Detroit, the court upheld summary judgment for Detroit on a transgender employee's complaint of harassment. Specifically, the employee complained that an unknown person had defaced her nameplate by scratching the word "Mr." on it, and she had received anonymous notes citing Bible verses, commenting on her transgender identity and stating that people like her should be put to death.
Employer liability
Although employers are strictly liable for harassment committed by a supervisor, the court in the Detroit case notes that "when committed by a coworker, the employer is liable only if it knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action." Despite its prompt and thorough investigation, in this case the city was unable to identify the perpetrator, which Doe contended meant it had failed to take sufficient remedial action to avoid liability.
In rejecting Doe's argument, the court summarized the significance of a prompt investigation as follows:
The 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. By doing so, the employer puts all employees on notice that it takes such allegations seriously and will not tolerate harassment in the workplace.
Harassment investigation delay
It is also important to note that the court distinguished a previous case denying summary judgment (Smith v. Rock-Tenn Services, Inc.) because "a reasonable jury could have concluded that the employer's 'total inaction for 10 days' was unreasonable when the employer knew that a coworker had assaulted the plaintiff and the employer had already warned the coworker." In other words, employers who delay investigations do so at their own peril.
Importantly, the city's investigation was not cursory and included obtaining handwriting samples and interviewing employees. It also took other steps to protect Ms. Doe even though it could not identify the perpetrator. Finally, the court noted that "[i]n addition to the investigation, the city held a meeting and informed employees that it had a zero-tolerance harassment policy, steps further indicating that the city's response was reasonable."
Prompt investigation
While this case essentially reiterates established law, it underscores the fact that prompt, thorough harassment investigations, while often both inconvenient and inconclusive, are invaluable in terms of not only eliminating the problem but also limiting an employer's liability.
Originally published 26 August, 2021
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