- Being the target of a sexual harassment investigation does not create a hostile work environment, ruled the 5th U.S. Circuit Court of Appeals (Mandujano v. City of Pharr, Texas, No. 18-40561 (5th Cir. July 10, 2019)).
- Carlos Mandujano was a deputy fire chief when he was accused of sexual harassment. The city opened two separate investigations into his conduct, and he resigned after allegedly being told by the fire chief that a sexual harassment finding would be made against him even though there was no evidence supporting that finding. Mandujano claimed that he was constructively discharged on the basis of his sex due to the sexual harassment investigations.
- Mandujano's complaint did not plausibly allege that the city's investigations created a hostile work environment, with working conditions "so intolerable that a reasonable person would have felt compelled to resign," said the 5th Circuit. (Mandujano also claimed that a city employee had harassed him on multiple occasions, but these allegations did not make it into his complaint due to procedural errors.) Accordingly, the 5th Circuit upheld a district court's dismissal of Mandujano's complaint.
When allegations of workplace harassment are brought to HR, a prompt and thorough investigation is a legal necessity. And it's important, experts have told HR Dive, for that investigation to be made in good faith — meaning that allegations are taken seriously, with the facts examined in a fair and neutral manner. Investigation notes should be detailed and not conclusory. It's a bad idea, for example, to state that someone was "harassed," experts previously told HR Dive.
Harassment at work remains common. A recent survey conducted by the National Institutes of Health (NIH) concluded that more than 20% of the 15,000 surveyed employees, guest researchers, trainees, and contractors had experienced sexual harassment over a 12-month period, but almost half failed to report it.
Another common problem is retaliation against those who raise complaints or engage in other protected activity. Retaliation complaints often accompany allegations of harassment or bias, and retaliation can occur even when the underlying harassment or bias claims are unfounded.
While hostility against the target of a complaint is less common, it can still happen — if, for example, the confidentiality of the investigation is breached and supervisors or others start treating the accused employee poorly due to the allegations. In order to protect both the accused and the accuser, HR should conduct investigations as discreetly as possible (even though complete confidentiality can never be guaranteed) and assure witnesses that they will not be retaliated against.