The following scenarios have unfortunately become far too common in the current workplace environment. In the first, several female employees make complaints to human resources against a male supervisor for inappropriate comments and unwanted sexual advances. The employees never hear from human resources with respect to their complaints and the supervisor continues his reprehensible conduct. Similarly, a female minority employee is terminated shortly after she complains to human resources that her supervisor treats her differently because of her race. Human resources advised the employee that her complaint would be investigated. The company’s policy specifically requires that all complaints of discrimination or harassment will be thoroughly investigated. The employee is shortly thereafter terminated by the supervisor about whom she just complained to human resources for allegedly violating company policy. She is never interviewed about her version of the story before the termination. During litigation by the terminated employee for wrongful termination and retaliation, the human resources representative testifies that she confirmed with the supervisor that race had nothing to do with the employee’s termination. The human resources representative is unable to produce any notes or other documents confirming conversations with the terminated employee, the terminating supervisor or whether she conducted any investigation.
Can The Employer’s Inadequate Investigation Evidence Discrimination or Retaliation in the Workplace?
Fortunately, the answer to the above question is a resounding yes provided that your lawyer asks the right questions of your former employer. California law requires that an employer take the reasonable steps necessary to prevent discrimination or retaliation. (California Government Code section 12940[k]) In scenario one above, the fact that complaints by the female employees were ignored is indicative of an employer that is not interested in maintaining a discrimination free work environment. The fact that the employer violated its own policy by failing to conduct a thorough investigation into the complaints of harassment is additional evidence supporting a 12940[k] claim. Scenario 2 additionally presents a multitude of problems for the employer with respect to the former employee’s discrimination and retaliation claims. As in scenario one, there is no evidence of a thorough and objective workplace investigation despite the complaint of discrimination by the terminated employee. A thorough investigation is often evidenced by an investigation plan, detailed notes of questions and answers for each percipient witness, and an investigation report or summary which includes a determination by the investigator regarding the credibility of each witness. The objectivity and relative experience of the investigator that conducts the workplace investigation are additional factors to consider when assessing the propriety of the investigation for establishing circumstantial evidence of workplace discrimination or retaliation. In scenario 2, the employee was not interviewed before she was terminated which is a major red flag particularly because she had recently complained of discrimination. Furthermore, the human resources representative did not document the employee’s complaint of discrimination or her conversation with the supervisor. The employer’s inadequate response to employee’s complaints, including and inadequate investigation, suggests that it is neither interested in the truth nor a discrimination free work environment.
Although this post does not set forth all of the factors to investigate, it hopefully informs you of the need to be vigilant when dealing with workplace issues and the importance of hiring an experienced employment law attorney who will fight for your rights. If you feel that you have been the victim of any form of discrimination or retaliation, contact the Perrin Law Group today for a free consultation.