We previously discussed steps employers can take to avoid liability for harassment and create a workplace free of harassing behavior. At the top of the list: properly (and promptly) investigating complaints of harassment. When an employer conducts a reasonable, unbiased investigation into a harassment complaint and takes proper action based on the results of the investigation, it may be able to raise a defense to liability if the situation leads to a harassment lawsuit. A recent decision from the Massachusetts Commission Against Discrimination (“MCAD”) should serve as a lesson for employers that do not take their investigation obligations seriously.
In Osorio v. Standard Physical Therapy, a former employee was awarded $50,000 in damages for emotional distress caused by her supervisor’s workplace harassment. She was also awarded a few thousand in lost wages, and she could even be awarded her attorney’s fees. While the allegations of harassment were severe and included claims of inappropriate touching and extremely vulgar comments, part of the rationale for the award by MCAD was the “flawed” investigation conducted by the employer. Specifically, the Hearing Officer stated:
Rather than arrange for a neutral individual to conduct an investigation into Complainant’s charges, Respondent Tambi states that he conducted his own inquiry into the allegations against his business partner, Vincent Bulega. Tambi claims to have interviewed all employees in the office but there is no record of such interviews ever taking place. No employees corroborated Tambi’s claim that he conducted such an inquiry.
The MCAD Hearing Officer had some well-founded concerns over the employer’s investigation tactics. First, this certainly seems like a case where the employer should have used a neutral third party to conduct the investigation, rather than having the accused’s co-worker and business partner conduct the investigation. Second, it appears that the investigator did not keep any notes or otherwise document the results of his investigation. This suggests he did not take the matter seriously or, worse yet, did not really conduct an investigation at all. The fact that not a single employee corroborated the investigator’s claim that he conducted an investigation also did not sit well with the Hearing Officer. To make things worse, the MCAD concluded that both the alleged harasser and the person who “failed to arrange for a good faith investigation” were liable for the damages in their individual capacities.
Next Thursday, June 14, my colleague Erica Flores and I will be hosting a no-cost Sexual Harassment Legal Update Roundtable. More information, including registration details, can be found here: https://www.skoler-abbott.com/event/sexual-harassment-legal-update/
Erica and I will be discussing this case and many others that have made the harassment headlines. Limited seats are available, so register today if you want to attend this free event.