"This & That" Tuesday: Harassment Investigation, Retaliation, Racial harassment
October 14, 2014
Here is the latest issue of “This & That” Tuesday. I hope you find it to be informative and useful.
You can always check out my website for upcoming speaking engagements that are guaranteed to be of value to business owners or for a list of topics that I can speak on at Chambers, Clubs, Business Associations, etc. More details about the events, topics and Human Resources 4U, in general, can be found on my website.
October 14, Culver City, What the New Paid Sick Leave Law Will Mean to You, Click here for more information
October 20, Mt. Sac (Walnut), Cal-OSHA & IIPP Basics, Click here for more information.
November 8, Pasadena City College, Hiring Talent for Improved Performance, Click here for more information
November 15, Mt. Sac (Walnut), How to Create and Conduct a Formal Discipline Discussion, Click here for more information
November 15, Mt. Sac (Walnut), How to Build a Salary Structure & Merit Pay System, Click here for more information
Why Interviewing the Complainant and Alleged Wrongdoer Simultaneously Is a Bad Idea
In Mendoza v. Western Medical Center Santa Ana, Mendoza received a jury award of $238k. This case serves as a reminder of the importance of conducting a good faith investigation.
Mendoza was employed as a nurse for over 20+ years. By everyone’s account including the Company’s account, he was an excellent employee. In 2010, Erdmann was Mendoza’s supervisor. Both men are gay. Mendoza filed a complaint alleging that Erdmann sexually harassed him on multiple occasions. The allegations included inappropriate, sexually lewd, crude comments, physical contact (blowing in his ear) and that Erdmann had exposed himself.
Erdmann contended that Mendoza was flirtatious and consented to the conduct. At the end of the investigation both men were fired. Mendoza then sued for retaliation.
This case can serve as a reminder of how a poorly done one can cost you.
- Instead of having an experienced employee relations professional or an outside investigator conduct the investigation, Mendoza and Erdmann’s supervisor conducted the investigation (a regular supervisor with no investigation training or skills).
- Both parties were interviewed at the same time. Never interview the complainant and alleged wrongdoer (or anyone else) at the same time. Erdmann was Mendoza’s supervisor. The goal of an investigation is to figure out what happened, not to shame, embarrass and intimidate the complainant. Also, Erdmann was entitled to answer questions and give his version of the facts without anyone present.
- The company only interviewed the complainant and alleged wrongdoer and no other witnesses. Are there times when the only witnesses are the complainant and alleged wrongdoer? Many times these cases come down to the credibility of each person. In these cases, as the court highlighted, interview witnesses who can attest to the credibility, or lack thereof, of the complainant and alleged wrongdoer.
- Doing an investigation just to say you did, as opposed to trying to figure out what happened will always end in a bad result for you. The court stated, “The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint.”
At the end of the day, a good faith investigation means an employer must show it honestly believed that the employee engaged in misconduct based upon substantial evidence obtained through an adequate investigation.
Wal-Mart Pays $87,500 to Settle EEOC Suit for Unlawful Retaliation
Wal-Mart Associates, Inc., will pay $87,500 and furnish other relief to settle a lawsuit for retaliation filed by the EEOC. The EEOC's lawsuit charged that Walmart Store #835 in Northeast Albuquerque refused to hire Ramona Bradford's adult son and daughter for entry-level positions because Ms. Bradford had filed a sex discrimination charge against Wal-Mart with the EEOC.
Retaliation against an employee because of her opposition to discrimination and/or participation in protected activity, such as filing a discrimination charge, violates Title VII of the Civil Rights Act of 1964. The EEOC also alleged that Ramona Bradford was a victim of retaliation because her two adult children were being denied employment because of her complaints about discrimination and her charge filing.
In addition to monetary relief for the Bradfords, the consent decree settling the suit provides for other important relief, including an injunction prohibiting retaliatory practices; training for managerial employees on retaliation; and the posting of a notice advising employees of their rights under Title VII.
MMR Constructors Settles EEOC Racial Harassment Lawsuit
MMR Constructors, Inc., a worldwide labor contractor, has agreed to pay $50,000 and provide other relief to settle a racial harassment lawsuit filed by the EEOC. The EEOC had charged that a black employee, who worked as a technician for MMR at the Ash Grove Cement Plant in Foreman, Ark., was subjected to racially offensive language, graffiti and death threats by white employees.
According to the EEOC's suit, two white co-workers came to the black employee's home in the middle of the night and threatened to kill him if he made any more racial harassment complaints against other co-workers or with regard to the racial graffiti. The black employee reported the incident, but MMR refused to take appropriate action against the harassers because the incident occurred away from the worksite.
Besides the monetary relief, the 18-month consent decree agreed upon by the parties and approved by the court requires MMR to provide training on racial discrimination, the proper handling of complaints of racial discrimination and anti-retaliation training for all of its management employees in Baton Rouge, La., and Arkansas. MMR must also report any complaints of racial discrimination and racial harassment received from any location in Baton Rouge, La., or Arkansas.
Top emerging voluntary benefits:
- Critical illness insurance
- Identity theft insurance
- Financial counseling
- Pet insurance
- Long term care insurance
How businesses are cutting their health benefit related costs:
- 28% increased employee’s co-payments
- 28% increased employee’s share of premium
- 22% eliminated or reduced some benefits
- 9% eliminated contributions for family coverage
"Great minds discuss ideas, average minds discuss events, small minds discuss people.”