If you ever question the value of an investigation, consider these three cases. The first two are older U.S. Supreme Court decisions where the Court created an affirmative defense for employers when a supervisor is accused of harassment, and no tangible employment action has resulted. Faragher v. City of Boca Raton (U.S. 1998) and Burlington Industries, Inc. v. Ellerth (U.S. 1998). An employer can defend itself from such a claim by showing (1) it exercised reasonable care to prevent and correct any harassing behavior, and (2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
In the third, more-recent case, the Tenth Circuit Court of Appeals cited Faragher and Ellerth when it dismissed an employee’s harassment claim against her employer because the employee did not complain about the alleged inappropriate behavior until several years after it began. Debord v. Mercy Health Systems of Kansas, Inc. (10th Cir. 2013). The Tenth Circuit decided not to hold the hospital liable because the employee “stayed silent even after Mercy provided sexual harassment training, annual reminders, an open-door policy with the management team, and an anonymous hotline to report harassment.” The court also noted that once the alleged behavior was reported, the hospital took prompt action by conducting an investigation and imposing corrective action.
These cases demonstrate the need for employers to have appropriate anti-harassment policies in place and to conduct prompt, thorough investigations either internally or, when circumstances demand, externally, by a third party like MSEC. For more information, please contact our Investigations department at 800.884.1328.