What If My Employer Doesn’t Investigate My Sexual Harassment Complaint?Sexual Harassment
If you’re the victim of harassment, when you do the right thing and report it, your employer should start a good faith investigation into your allegations. Strictly speaking, there’s no law mandating that an investigation be done, but courts have interpreted antidiscrimination laws as requiring the employer to investigate if it wants to avoid liability. If a harassment complaint is made, management can’t just shrug its shoulders and look the other way if it expects a positive outcome to a lawsuit.
The U.S. Supreme Court has ruled that if an employee is illegally harassed by a superior, the employer could be held liable for damages. That liability arises when a tangible adverse employment action occurs, such as a firing, demotion, or failure to promote. If there is no such tangible action, the employer can avoid liability by proving that:
- it exercised reasonable care to prevent and promptly correct any harassment, and
- the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
Part of the employer’s efforts to correct harassment should include investigating harassment complaints. Before any complaint is made, the employer should have a system in place for a prompt, thorough, and impartial investigation. When management gets a complaint, it needs to decide whether a detailed fact-finding investigation is needed. If the alleged harasser admits to the harassment, that detailed investigation wouldn’t be necessary.
If an investigation is needed, though, it should start immediately. How much time and effort will be needed depends on the complexity of the allegations, the number of potential witnesses, and the evidence may be involved (such as e-mails, text messages, and security camera footage). Those conducting the investigation should objectively gather and consider the relevant facts. Ideally, the person conducting the investigation should be trained in the skills that are required for interviewing witnesses and evaluating credibility. The accused harasser should not have supervisory authority over the person doing the investigation and should not have any control over the investigation.
Actions may be needed before the conclusion of the investigation to make sure that the alleged harassment can’t continue. While the two people involved should be separated, care must be taken not to burden the alleged victim, because that may be construed as unlawful retaliation.
Car Dealership Employee Suffers Sexual Harassment
Emma Gyulakian worked for Lexus of Watertown in Massachusetts from 2003 to 2012, when she was fired. At the end of her tenure she was the dealership’s financial manager. Starting in June 2010, Emmanuel Ferreira, the finance director, was her immediate supervisor. Gyulakian was fired during a meeting with upper management, supposedly due to her deteriorating relationships with co-workers. At that meeting, she stated that Ferreira sexually harassed her and created a hostile and offensive work environment.
That day Gyulakian made the same report of harassment to the dealership’s human resource manager, Tammy Grady-Brown. Previously, she had also informed Tony Bruno, an assistant general sales manager and Ferreira’s direct supervisor, multiple times about numerous sexually offensive incidents over the prior 18 months.
After her termination, Gyulakian sued the dealership for discrimination under Massachusetts law. The jury decided in her favor, awarding her punitive damages of $500,000. Punitive damages are meant to punish a defendant for outrageous behavior in hopes of both deterring others from doing the same and discouraging the defendant from doing it again.
The defendant asked the trial judge to reverse the jury’s decision, and the judge agreed, reasoning that there was insufficient evidence to support the award and the defendant should not be held liable for punitive damages simply due to the acts of supervisory employees.
The plaintiff appealed the decision. The Massachusetts Supreme Judicial Court, the state’s highest court, reversed, stating that applicable state law and the facts shown at trial supported the jury’s award of punitive damages.
See No Evil, Hear No Evil, Speak No Evil
The appellate court found that punitive damages were justified in part because the defendant failed to remedy or correct the harassment after it was on notice, through complaints to Bruno and general knowledge in the workplace, that it was occurring. The court wrote that the failure to remedy alleged discrimination can arise when the employer purports to investigate the discrimination, but does so inadequately. The jury could reasonably have found that the investigation by general manager Vincent Liuzzi and Grady-Brown was “wholly insufficient.”
Liuzzi testified at trial that after hearing Gyulakian report Ferreira’s conduct, he “honestly didn’t believe [her].” Liuzzi told Gyulakian that there might be a job opportunity at another dealership, but he warned her that reporting the sexual harassment to Grady-Brown (which she later did) might jeopardize that opportunity. Liuzzi was responsible for conducting an adequate and impartial investigation into Gyulakian’s claims. He stated that he didn’t interview anyone other than Ferreira in the finance department because he didn’t want to undermine Ferreira. At trial, these other finance department employees gave testimony supporting Gyulakian’s allegations.
Liuzzi further testified that he concluded his investigation after one employee, who had worked with Ferreira for 20 years, told him that there had never been another allegation against Ferreira. When that employee testified at the trial, he stated that Liuzzi never asked him about Gyulakian’s specific allegations. Grady-Brown claimed that she had also investigated the harassment complaint. No notes of her interviews, nor those of Liuzzi’s, were produced at trial.
The court found several problems with the supposed investigation. First, no members of the finance department, who would have been most likely to witness the alleged conduct, were interviewed, purportedly because Liuzzi did not want to undermine Ferreira. Gyulakian herself was never contacted during the course of the investigation. Additionally, the investigation was carried out by a person who admitted to being biased against the complainant. That purported investigation revealed no corroboration of Gyulakian’s allegations, even though a former office manager had previously circulated a memorandum regarding Ferreira’s inappropriate behavior. Moreover, many of Gyulakian’s allegations were corroborated at trial by members of the dealership staff, none of whom were contacted during the internal investigation.
Summing It Up
If you’re the victim of workplace harassment, look to your employee handbook to find out to whom you should make a complaint. In response to your complaint, the following steps should occur:
- Management should conduct a fair, thorough, and unbiased investigation.
- Your employer should remedy workplace harassment once it’s on notice of the problem.
- The investigation should determine whether the allegations are true, and if so, what should be done about it.
- If there is not an adequate investigation, the employer risks a judgment against it, along with a possible award of punitive damages.
If you believe that you are being harassed at work and management isn’t taking steps to stop the harassment, contact our office. We can talk about what’s going on, what management has done about it, how the law may be applied in your case, and what your best options are for protecting your legal rights.