- A parks employee was fired due to poor attendance and insubordination, not in retaliation for complaining about sex discrimination, the 7th U.S. Circuit Court of Appeals ruled (Appleton v. City of Gary, Indiana, No. 16-cv-448 (7th Cir. July 30, 2019)).
- The employee had numerous documented policy violations, including refusing to adhere to a regular work schedule and bringing her children to work after being told not to. During one 13-day stretch, she was absent or late nine times and left early on four of the days she came in, the documents noted.
- When the employee complained of harassment, an internal HR investigation concluded that the dispute stemmed from the employee's disregard for workplace rules; no discrimination or harassment was found. There was no evidence of a causal relationship between the complaint and her termination, and there was a lengthy stretch of time (four months) between them. Accordingly, the 7th Circuit upheld a district court's ruling of summary judgment in favor of the employer.
Even when an employee has a reputation for being difficult, HR must still promptly follow up on complaints of harassment or bias and investigate them fairly and thoroughly. Internal investigations can usually be handled entirely by HR, but employers may want to bring in outside counsel to assist in particularly sensitive or high-stakes situations (such as when someone in HR or a senior executive is the one accused of misconduct).
Investigators do sometimes get it wrong, Pavneet Singh Uppal of Fisher Phillips LLP told attendees during a session at the Society for Human Resource Management's (SHRM) 2018 annual conference, but they will not be legally liable if they acted in good faith and arrived at a well-reasoned conclusion.
What gets HR in trouble when it comes to investigations? Ignoring complaints or not taking them seriously: One employer recently paid out $150,000 to settle a lawsuit brought by the U.S. Equal Employment Opportunity Commission after it brushed off allegedly harassing conduct as "playful." Another employer landed in hot water for entering into an investigation with a "presumption of wrongdoing" rather than a good-faith open mind.
Having complete and correct documentation is important, especially if an employee is disciplined or discharged for poor performance or misconduct. A thoughtful offboarding process can help clear up potential misunderstandings and reduce lawsuit risks, even when a separation is involuntary.