Rogue Investigation Results in Discipline

Labor & Employment Lawyers - New Jersey Labor and Employment Law Firm
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A supervisor, upon hearing a complaint of sexual harassment, decided to investigate on her own.  Kristie Alley, a frontline supervisor at a Penguin Random House warehouse, received a complaint of sexual harassment from an employee that she supervised.  Although the employer had directed all supervisors to report allegations of sexual harassment and provided clear instructions on how to do so, Ms. Alley decided to conduct her own investigation.  She questioned other employees to determine if they could support the allegation and contacted a former employee on Facebook. 

While the frontline supervisor was conducting her own investigation into the allegation, two other employees reported the sexual harassment to the human resources department, which conducted its investigation.  The human resources department discovered that the frontline supervisor was conducting her own investigation and had failed to notify it of the allegation.

The employer demoted the frontline supervisor for failure to follow the employer’s procedures for handling complaints of sexual harassment.  The frontline supervisor argued that she conducted her own investigation so that she could gather enough information that would force the employer to act.  She sued claiming that she had been retaliated against for reporting sexual harassment.

The United States Court of Appeals for the Seventh Circuit (which covers Indiana, Illinois, and Wisconsin) affirmed the trial court’s grant of summary judgment.  The Seventh Circuit held that the frontline supervisor had not been disciplined for reporting sexual harassment, rather she had been disciplined for not reporting it.

The case was a bit more complicated because during its investigation, the employer learned that another supervisor had not reported a complaint of sexual harassment and the employer did not discipline that supervisor, who was male.  The Seventh Circuit reasoned that the employer could legitimately discipline the frontline supervisor, a female, and not the other supervisor, a male, because the company learned of the frontline supervisor’s failure to report the harassment shortly after she failed to do so.  But it learned of the other supervisor’s failure to report several years after the fact.  Given the timeliness of their failure, the Seventh Circuit reasoned that no inference of discrimination could be drawn.

The case reminds employers that they should review their procedures and policies for reporting allegations of sexual harassment.  Clearly written policies and uniform application of those policies will reduce the potential for litigation.


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