Harasser's firing after 6-week investigation was 'prompt' enough to prevent employer liability
- Corrections Corporation of America's prompt remedial action against an employee who was sexually harassing a co-worker has protected it from liability in a later lawsuit (Wilcox v. Corrections Corp. of America, No. 17-11919 (11th Cir., June 25, 2018)).
- Using company procedures, Felicia Wilcox, a correctional officer, filed a complaint in July 2009, claiming that a co-worker, Larry Jackson, touched her inappropriately twice. The employer told Jackson not to associate with Wilcox or be anywhere near her and retained an outside investigator. The investigator determined that Jackson had sexually harassed Wilcox and her co-workers and fired him. The entire process took six weeks. Wilcox sued and a jury awarded her $4,000 in actual damages and $100,000 in punitive damages. The district court judge, however, set that verdict aside, finding that the company’s prompt remedial action barred liability.
- Wilcox appealed, arguing that the company failed to act promptly and appropriately. The 11th Circuit disagreed, noting that Jackson was immediately ordered to stay away from Wilcox and then fired two weeks after the investigator talked to Wilcox and learned about other complaints against him. Wilcox said six weeks was too long but, the court disagreed, specifically noting that the investigation included 16 employee interviews.
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 the Society for Human Resource Management's annual conference last month.
Even if your ultimate determination turns out to be wrong, you will not be legally liable if you acted in good faith, Pavneet Singh Uppal said. This means ensuring that all employees have received notice of the company's policies and rules, such as your anti-harassment and anti-retaliation policies. You should review them at least yearly, and make sure you have proof that employees received the policies, Shayna Balch said.
And then, you need to take all complaints seriously. They won't all warrant investigations, but acknowledging perceived problems and explaining your decision-making can go a long way toward preventing retaliation claims, they said.
- 11th U.S. Circuit Court of Appeals Wilcox v. Corrections Corp. of America
- HR Dive Internal investigations, part 1: Conducting a good-faith review
- HR Dive Internal investigations, part 2: Detecting lies and deception