An employer recently learned the hard way that a proper response to an employee’s complaint of harassment involves more than simply investigating it.
I’ll explain.
Last night, I read a recent decision from a Pennsylvania federal judge. The plaintiff, an Asian American, testified at his deposition that his supervisor often cornered him when they were alone and insulted him by saying, “Your kind of people are always causing problems,” “Your kind of people are the reason we have to wear these masks,” “I own your ass,” and “Your ass is grass, and I’m the lawnmower.” Other times, the supervisor unfairly accused him of taking too long to do a job, not finishing jobs, trying to sabotage a work van, and repeatedly threatened to fire him.
The plaintiff complained to Human Resources, and HR did investigate, speaking with the plaintiff, the supervisor, and a few others. During the investigation, HR corroborated the plaintiff’s testimony regarding his supervisor’s targeting, demeaning, and insulting treatment. Yet, despite this and other facts discerned in the investigation that made it appear that the plaintiff’s complaint had merit, neither HR nor anyone else took any action on the plaintiff’s complaint beyond this investigation.
A few months later, the plaintiff filed a second complaint with HR, claiming that his supervisor had attempted to retaliate against him for filing the first complaint. This time, HR didn’t investigate at all. Instead, HR didn’t think the second complaint warranted an investigation because the defendant’s policies forbade retaliation, and HR would do its best to ensure no retaliation.
Within about a week, the defendant terminated the plaintiff.
The plaintiff claimed that the defendant had subjected him to a hostile work environment and ultimately terminated him in retaliation for filing complaints of racial discrimination.
To prevail on a hostile work environment claim, an employer must often show that after it became aware of the discrimination/harassment, it took prompt and appropriate corrective action. Here, the defendant investigated (once) but never disciplined or even counseled the alleged harasser.
On the retaliation claim, the defendant argued that it fired the plaintiff because of a profanity-laced tirade he directed at another manager shortly after complaining to HR for the second time. No one would dispute that the defendant had the right to do this. However, the plaintiff denied everything. And, at summary judgment, a judge must view the evidence in light of the non-moving party. Since the defendant moved for summary judgment and the court can’t judge credibility, it had to decide all disputed facts in favor of the plaintiff. That, plus the one-week gap between the plaintiff’s second HR complaint and his termination, creates a strong inference of retaliation and defeats summary judgment.