Thursday, 17 October 2013 11:51
By Gina Helou
Two white male maintenance workers in a farmer-owned cooperative milling, marketing and selling rice overheard a supervisor say one of their black maintenance co-workers “smelled like a n****r.” Immediately, one of the white maintenance workers filed an internal grievance listing the other white maintenance worker as an additional witness to the incident. The co-op’s warehouse director reviewed the complaint and spoke with the supervisor, who claimed he did not recollect the incident. The director considered his investigation complete, decided there was no cause for concern because no offense had been committed, and tried, but failed, to convince the white maintenance worker to withdraw his complaint.
Next, the facility manager reviewed the complaint and had human resources conduct an internal investigation. After interviewing several witnesses, the human resources investigator claimed he “could not find corroborating evidence” because one witness said he was not sure exactly what the supervisor had said to the black maintenance worker. The facility manager concluded the investigation, agreeing with the director and stating nothing had happened and there was no merit behind the complaint. The backlash of these investigations angered the supervisor, who ended up having several more grievances filed against him by both white maintenance workers for using offensive language.
During this time period, the CEO of the company issued directives for the heads of each division to reduce their operating costs in the upcoming year. The warehouse director recommended eliminating two positions, which happened to be the positions held by the two white, male maintenance workers. Company policy required the approval of acting managers and human resources directors (the other individuals who conducted investigations) before the positions could be eliminated. Approval was granted, and the two white, male employees filed charges with the EEOC.
The Court’s decision
At trial, after hearing from several witnesses, the jury found in favor of the two employees, awarding lost wages and benefits, and $300,000.00 in emotional damages. The court found the supervisor’s discriminatory remarks and the warehouse director’s lack of an investigation into the complaint were enough to hold the employer discriminatorily liable for the actions of its agents. The retaliation claims were satisfied because of the close proximity of the job eliminations to the timing of the internal complaints being filed and because the two maintenance positions were the only jobs eliminated at the facility.
The entire case could have gone in the opposite direction if some kind of proper investigation had been conducted at the time of the first complaint. It is essential for employers to isolate supervisors accused of any kind of illegal employment practice such as discrimination or retaliation. The importance of the investigation process is paramount to an employer surviving a discrimination and retaliation lawsuit.
Keep the investigation as private as possible so as not to affect others in the workplace. Remember, as an employer, you cannot assure all witnesses and complainants the information will remain confidential. Train supervisors, managers, directors, etc., on the law and make sure there is an accessible outlet for employees to make complaints. Additionally, when downsizing for economic reasons, be sure the decision is not in close proximity, whether in time or manner, to an internal investigation. Sometimes it is a safer and more economically sound business decision to resolve internal matters before making decisions that could lead to expensive lawsuits.