- An employer fired a sales director for a legitimate, nondiscriminatory reason — not her age — the 5th U.S. Circuit Court of Appeals has ruled, (Gill v. DIRTT Environmental Solutions, Inc., No. 18-50901 (5th Cir. Oct. 25, 2019)).
- Patricia Gill had worked for DIRTT Environmental Solutions, Inc., as a director for roughly a decade. After receiving complaints alleging professional misconduct on Gill's part, the company hired another director who was 10 years younger and made them co-directors. The next year, it fired Gill. She sued, alleging age discrimination. A trial court granted summary judgment for the employer, and she appealed. In affirming the lower court's ruling, the appeals court noted that for two years the company received numerous complaints alleging Gill relayed incorrect information to clients, tried to do co-workers jobs without notifying them and improperly marked contracts to increase her commission.
- Gill had aruged the the employer failed to follow internal policies requiring it to properly investigate complaints, demonstrating age bias. The appeals court disagreed, however, finding that the employer made a "reasonably informed and considered decision" to fire Gill based on her unprofessional behavior, "even if it did not notify Gill of every complaint."
When an employer offers a legitimate nondiscriminatory reason for a challenged action, it’s up to the employee to show that the employer’s reason isn’t true. Walmart, for example, recently defeated a former employee's age bias claim after demonstrating it had held multiple employees to the same standard.
But, as the Gill court noted, employers can run into trouble when they fail to investigate complaints, especially if an internal policy requires that they do so. The U.S. Equal Employment Opportunity Commission (EEOC) recently sued a Little Rock, Arkansas, Pei Wei Asian Diner, for example, alleging it failed to investigate complaints of sexual harassment from two of its managers.
When HR receives a complaint alleging discrimination, it should act swiftly and follow its consistent investigation process, Cobham HR VP Julie Stickney 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.
HR also should take all complaints seriously. 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.