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Friday, September 2, 2016

Shoddy Harassment Investigation Bites Employer

By: Thomas Eden

An employee has accused her boss of sexual harassment. It’s her word against his, but you might be able to find out the truth if you interview her co-workers. The only trouble with that is, you don’t want to do anything to undermine the supervisor before you even know whether he’s guilty. So, maybe you do a superficial investigation that doesn’t require you to dig into the dirt, or maybe you don’t do any investigation at all.

If you ever needed a case study showing why it’s important to do a thorough investigation anyway then read the story of EMMA GYULAKIAN vs. LEXUS OF WATERTOWN, MA. In that case, the Massachusetts Supreme Court reinstated a punitive damages award of $500,000 against a Lexus dealership, in part because of its lousy investigation.

Gyulakian was in her termination meeting and made allegations of sexual harassment by her boss. The dealership went ahead with the termination and then investigated. But just barely, because they didn’t want to “undermine” the accused supervisor. The “investigation” in Gyulakian’s department consisted of checking to see whether any accusations had been made against her boss in the past. The answer was no. End of investigation.

Then at the trial, all of the co-workers who were not interviewed were called to testify. One said that the boss spoke crudely about the plaintiff and to the co-worker herself. Another co-worker said that the boss had spoken about Gyulakian’s breasts. The boss’s former boss testified that the boss talked about employees’ breasts and buttocks and spoke in a way that “would not have been acceptable at ‘church or temple.'” A former employee said that the boss used “vulgar profanity” when talking about women, including female employees.

Although the dealership wanted to use its investigation as a defense to the punitive damages claim, the Court concluded that that the shoddy investigation wasn’t designed to get at the truth. Therefore, the jury was justified in hitting the dealership for half a million in punitive damages.

Common Sense Counsel: Here’s a tactful way to get to the truth. Consider meeting with the employees individually and, without naming names, simply asking them about the atmosphere and general work environment. At some point in the conversation, you can review the harassment policy with them and ask whether they’ve observed any behavior that they think is inappropriate or might violate the policy. If they give you specifics, then you can follow up as needed. It’s also a good idea to ask them whether they know what to do if they feel they’ve been harassed at work.

There is simply no substitute for a legally complaint anti-harassment policy, written investigation guidelines notebook, coupled with employee anti-harassment training. Shoddy work always comes back to bite you.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. This column is taken from a Constangy Blog Post by his law Partner Robin Shea. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with link to full case.