Timing Matters – Failure to Respond and Act Promptly Can Create Liability
A recent case emphasizes the importance of timing – both in terms of reacting to reports of employee misconduct and in imposing discipline (particularly termination). As the U.S. Court of Appeals for the Eighth Circuit recently found, terminating an employee, based on conduct that occurred months earlier, shortly after they complain of discrimination certainly seems suspect.
Where Things Went Wrong. In Hairston v. Wormuth, a female employee allegedly experienced some sexually harassing conduct from her male supervisor. In late August, she spoke to a colleague, who happened to be an EEO assistant, but did not file a formal complaint. He suggested that she talk to either her next level manager or the EEO manager. He also reported his conversation to the EEO manager, who then informed the employee’s next level manager. The employee’s manager then informed the supervisor, who denied the alleged conduct. In turn, he complained about inappropriate conduct by the employee, including reiterating an incident that he originally reported back in March. A month later, at the end of September, the manager also spoke with the employee, who confirmed her conversation with the EEO assistant but declined to file a formal complaint.
Approximately two months later, in late October, an investigation was conducted into all the allegations. The investigator issued his report a month later, on November 21, finding the employee’s allegations to be “unfounded,” while concluding that she had engaged in multiple incidents of inappropriate behavior. On December 2, the employee sought counseling from the EEO officer regarding her perceptions of retaliation and a hostile work environment, among other things. A week later, she filed a complaint about inappropriate comments that she overheard her manager making. A few days later, on December 12, the employee was terminated, based on the inappropriate conduct addressed in the investigator’s report. She sued, alleging illegal retaliation, among other things.
The Court Weighs In. The Eighth Circuit found that the employee’s retaliation claim had merit because the timing of her termination was problematic. Specifically, she was terminated for conduct that had been known by her manager for many months, but only days after she formally complained of discrimination. As the Eighth Circuit stated, “[w]here an employer tolerates an undesirable condition for an extended period of time, and then, shortly after the employee takes part in protected conduct, takes an adverse action in purported reliance on the long-standing undesirable condition, a reasonable jury can infer the adverse action is based on the protected conduct.”
The Eighth Circuit also found troubling the fact that the manager had done a thorough investigation into the supervisor’s allegations of misconduct by the employee, but no similar investigation into the employee’s allegations of misconduct by the supervisor. This “lopsided” treatment was further support for the retaliation claim.
Lessons for Employers. There are several takeaways for employers here.
- First, it is important to respond promptly to reports of discrimination or harassment. In this case, months went by without much response from the employer – a formal investigation was not started for some months after the issues were first raised, and the investigation itself apparently took almost an entire month. It is difficult to maintain that the issues were significant, or that the employer was appropriately concerned, when there is no urgency exhibited in responding to reports of misconduct.
- Moreover, it is important to take remedial action promptly as well, as it is hard to argue that the employee’s misconduct was so serious as to warrant termination if the employer tolerated the same conduct for an extended period.
- And finally, it is important to treat all complaints consistently, as “lopsided” investigations suggest that the employer is not taking some complaints seriously or has already prejudged the situation.
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