- City University of New York removed a professor for a legitimate, non-discriminatory reason — she had mismanaged graduate student funds, according to a Feb. 3 appellate court ruling (Gong v. City University of New York, No. 20-1341 (2nd Cir., Feb. 3, 2021)).
- The professor sued after her dismissal, claiming that CUNY discriminated against her because of her race and national origin by delaying professorship opportunities, directing her to hold evening hours for graduate students while white professors weren't required to do so and organizing a faculty meeting that included presentations criticizing certain actions by the People's Republic of China. The district court dismissed her discrimination and hostile work environment claims, finding that the plaintiff's allegations did not "raise a plausible inference of discrimination or rise to the level of pervasive and severe conduct that altered the terms and conditions of her employment."
- The appeals court affirmed. The court said the professor's discrimination claim failed because she had not adequately alleged that her race or national origin were motivating factors in CUNY's decision to remove her from the graduate advisor and fellowship coordinator positions. Many of the alleged incidents lacked a racial overtone and, for the most part, the court said, were too few, "too separate in time" and "too mild" to create an abusive working environment.
If an employment matter lands in court on accusations of bias or discrimination, employers have a strong legal defense when they can show a nondiscriminatory reason for an adverse employment action. Employers can't factor in characteristics such as race, color, religion, sex and national origin when making employment decisions, according to U.S. Equal Employment Opportunity Commission guidance.
The court noted that CUNY had conducted an investigation into certain allegations. Employers can run into trouble when they fail to investigate complaints, especially if an internal policy requires that they do so.
When HR receives a complaint alleging discrimination, it should act swiftly and follow its consistent investigation process, Julie Stickney, SVP Talent Management at IH Mississippi Vallley Credit Union, previously told HR Dive. An investigation done in good faith that ends with a "well-reasoned conclusion" is key to avoiding liability for harassment claims, experts told HR professionals at a Society for Human Resource Management conference.
Even if the ultimate determination turns out to be wrong, an employer may avoid liability if it acted in good faith, Pavneet Singh Uppal, a Fisher Phillips regional managing partner, said. This means ensuring that all employees have received notice of the company's policies and rules, such as anti-harassment and anti-retaliation policies. HR should review them at least yearly, and ensure it has proof that employees received the policies, Shayna Balch, a partner at the firm, said.
Of course, investigations aren't necessary for every complaint. But it's important to carefully review those that might make their way to court, Singh Uppal said. And if HR concludes there was misconduct, it's important to take remedial action reasonably calculated to end the misconduct, he explained.