Sound Investigation Policy & Employer Liability
in Race and Sex Harassment Cases
by
Ernest J. Guiste, Trial & Appeal Lawyer
Increasingly employers are starting
to appreciate that it is simply not worth it to cut corners if their goal is to
avoid civil liability in the work place on account of allegations of racial,
sexual or other forms of prohibited grounds for discrimination or harassment in
their work places. Employers who are serious about avoiding huge judgments or
settlements flowing from civil claims for causes of action such as negligent
investigation, slander or libel are forewarned to make the implementation of a
sound investigation component part of their anti-harassment policies. My work as a plaintiff employment litigation
lawyer has opened up my eyes to a glaring omission in many of the
anti-harassment policies that I encounter in the course of my work. The vast
majority of such policies lack a sound investigation policy. An anti-harassment policy without a sound
investigation component is like a car without wheels.
The purpose of this article is
two-fold. Firstly, it will illustrate
the types of civil causes of action which employers subject themselves to when
they fail to incorporate a fair and sound investigation policy as part of their
anti-harassment policy. Secondly, it
will delineate the core legal principles which must be incorporated in an
investigation policy in order for employers to successfully defend their
interests when such claims are brought against them by former employees.
Negligence
The primary cause of action which
employers open themselves to when dealing with claims of racial and or sexual
harassment based on the adequacy of their investigation is negligence. Like the
other causes of action which we will discuss later, this cause of action can
arise from both the victim and the alleged perpetrator of the harassment. The crux of such an action is that the
employer failed in its duty to conduct a fair and impartial investigation of
the allegations. In practical terms this means that the investigation fell
below the standard or quality that the law imposes on like employers. While there seems to be some judicial
authority for the proposition that an employer at common law was under no duty
to investigate allegations of wrong-doing by their workers, it is submitted
that this proposition could not reasonably apply in circumstances where the
employer has a statutory duty to provide a harassment-free workplace and has implemented
an anti-harassment policy. Hence, the
duty to conduct a fair and impartial investigation is a by-product of the
employer’s statutory duty to provide a harassment-free workplace – especially where
they have implemented a harassment policy.
Duty of Care:
It is well established that an
individual can be as negligent as he or she wishes so long as they owe no duty
to act prudently. An employer who witnesses a fist fight in the place of
employment and summarily dismisses the two employees would clearly not be a
strong candidate for a negligence investigation action. This is to be
contrasted with the company which has an elaborate written sexual anti-harassment
policy and following an investigation of a complaint elects to summarily
dismiss an employee for breach of the said policy. In this scenario the employer has the power
to determine that an employee was for lack of a better word “guilty” of sexual
harassment. Clearly, this is a very serious allegation of misconduct.
Accordingly, one can appreciate the law’s imposition of a duty to take care in
the manner of such an investigation. The
duty to take care arises from both the fact of the existence of the
anti-harassment policy and any express or implied employer’s duty to
investigate complaints under the said policy.
Indeed, it makes ample sense that if an employer is going to pass a
formal policy prohibiting certain conduct in the work place that such an
employer would be under an implied duty to investigate before finding blame.
Damages:
Another well established principle
in negligence law is that a plaintiff must show that they suffered damages as a
result of the defendant’s breach of duty. In some negligent cases this is often
an impediment to recovery for a plaintiff.
However, this is not often the case in a negligent investigation
action. Typically, the plaintiff will be
seeking compensation for the following: general damages and loss of income. It is important to note that unlike your
standard wrongful dismissal action damages for negligent investigation are not
capped. They do not follow the
principles established in Bardhal and other cases. Accordingly, employer liability on such claims
can easily be two to four times that of a standard wrongful dismissal
claim.
Intentional
infliction of
mental distress
Another popular cause of action advanced by employees
flowing from poor or inadequate investigations of race or sexual harassment
policies is known as intentional infliction of mental distress. The thrust of this cause of action is that on
account of the defendant’s outrageous conduct the employee has suffered mental
distress for which he or she should be compensated. Outrageous conduct has been interpreted by
the courts to mean conduct that is outside the bounds of social norms. Employers who flagrantly disregard their own
published and established policies in carrying out a summary dismissal could be
found to engaging in outrageous conduct.
In addition, employers who make serious allegations against an employee
attacking their integrity and reputation without granting the employee an
opportunity to respond have been found to be liable under this cause of
action. The question of the quality and
extent of evidence an employee need in order to establish a claim under this
cause of action is not clear. However,
it appears that the courts may be prepared to infer such harm in the proper circumstances.
Defamation of
character:
Slander / Libel
Claims for defamation of character are common causes
of action brought against employers in the context of sexual and racial
harassment complaints. These claims take
two distinct forms. Defamation by way of
writing is known as libel while defamation by way of speech is known as
slander. The thrust of such claims is
that the employer has damaged the plaintiff’s reputation in the general
community and or in his or her profession or occupation. In both forms of
defamation there is a requirement for what is referred to as “publication”
before one can be liable of slander or libel.
Publication simply means
communicating the defamatory statement to a third party. An example may assist in making this
point. Rudy was a successful general
manager employed by a large electronics retailer. His employer fired him alleging he had
sexually harassed three female co-workers. This was not true. In an effort to
protect itself from potential liability for defamation the employer did not
mention the sexual assault allegation in the termination letter and made sure
not to mention it in the subsequent Employment Insurance investigation
conducted by appropriate governmental agency.
However, as part of the benefit application process the employer is obligated
to issue the worker a form called a Record of Employment and note on that form
the reason for its issuance. This particular form has a number of choices and
one of them is “M” and according to the definition grid “M” means “misconduct”. The employer is further required to file a
copy with the government agency. The
very act of filing a copy of this report with the government agency may
constitute publication where the allegation is untrue and there is evidence of
malice or improper purpose on the part of the employer. In the jurisdiction in
which this example stems from the enabling Employment Insurance Act expressly
makes information supplied by the parties subject to a qualified
privillege. This means that evidence of
malice or improper purpose will defeat the privillege and the question of the
employee’s defamation of character will be considered on all of the evidence.
Claims which deal with damage to the
plaintiff’s reputation in his or her profession or occupation expose employers
to significantly more potential liability.
Injury to a plaintiffs reputation in his or her profession or occupation
is one of the four categories of defamation known as libel or slander per
se. This category of defamation is
significant because damages are presumed.
Accordingly, a plaintiff in such an action is prima facie entitled to
compensation from the defendant for the injury to their reputation. Evidence of loss of income and mental
distress and the like will significantly increase such awards. Unlike the
conventional wrongful dismissal action, damages for loss of income in such an
action are not capped or tied to what is known as “reasonable notice” but is
subject to proof by the plaintiff and is subject to the duty to mitigate. That is that the plaintiff can not simply sit
on their hands and look to the defendant for compensation but must make
reasonable efforts to lessen his or her loss.
In this segment of the paper I will now focus on
delineating the core ingredients of an effective investigation policy to
accompany your companies anti-harassment policy. It can not be stressed enough that this is a
very serious part of any organizations anti-harassment policy. An
anti-harassment policy in the absence of an effective and thorough
investigation policy is of no utility to an employer and nothing more than an
invitation to the types of liability previous discussed above.
Written &
Widely Communicated:
The first and most important quality
you will want your investigation policy to have it that of being written and
well-communicated. Like the
anti-harassment policy its investigative component derives legitimacy by being
in writing and by being widely communicated.
The most practical means of communicating your companies anti-harassment
investigation policy is through a published manual containing all of the
companies other rules and regulations.
This document should be delivered to every new hire and most importantly
someone with knowledge of the workings of the policy should make sure to
explain the full policy to new hires.
Thereafter, the policies, namely, the anti-harassment policy and the
investigation portion should be communicated to employees through the annual
performance appraisal. At least fifteen
minutes ought to be set aside during each employees annual performance appraisal
in order to communicate the workings of the policy to employers. Of course, it would be benificial to have
employees acknowledge receipt of this
Audi alteram
partem:
“Hear
the other side. Hear both sides.
No
man should be condemned unheard.”
The above-noted quotation is the
Black’s Law Dictionary definition of one of the fundamental legal principles,
namely, audi alteram partem. This simple
Latin maxim is capable of providing procedural integrity and legitimacy to an
employer’s anti-harassment investigation policy. Any legitimate investigation of any type must
incorporate this fundamental principle in order to meet the basic litmus test
of a fair and impartial investigation. A failure to adhere by this key
fundamental principle will simply leave your organization’s investigation and
conclusion open to attack as being a “shoddy investigation” as was the case in
Francis v. C.I.B.C.
Sworn or
unsworn
evidence:
Another significant decision which one will have to
make regarding their policy is whether or not to insist on sworn evidence from
witnesses. As a trial lawyer who is
routinely involved in litigation involving such policies I fail to see any
utility in electing to go with unsworn evidence in support of an investigation.
Unsworn evidence defeats the purpose if your purpose is to have an effective
and reliable policy for prohibiting and investigating harassment issues in the
work place.
Internal vs.
External
Investigators:
Do we use internal investigators or hire from outside
the firm ? This is the last but perhaps
the most important decision which will have to be made when investigating an
allegation of sexual or racial harassment in the work place. Again, whether an organization decides to go
with internal or external investigators will depend upon a number of factors
including the size of the firm. At the end of the day whether one employs
insider or outside investigators should be guided by the degree to which those
investigators have no potential to be biased – since fairness and integrity are
the foundation of a firm’s harassment policy. It will likely cost the firm
significantly more to hire outside professionals to do this work but this will
go a long way in giving credibility and legitimacy to the process.
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