Thursday, March 10, 2011

What has the Supreme Court Done to Employer Investigations?

A few recent Supreme Court cases present major concerns for employers conducting internal investigations. This post will highlight a few of them.

The Defenseless Cat
In Staub v. Proctor Hospital, the Court held that an employer may be liable where "a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action." What does this have to do with investigations? Well, the Court also expressly held that an independent Investigation by the ultimate decisionmaker does not shield an employer from liability. Does this mean the investigation is worthless? Absolutely not, but it’s not the magic bullet that employers had hoped.

Intraoffice Relationships and Relatives
When employers are preparing to terminate an employee, and conducting an internal investigation, should they look at the employee’s relationships with co-workers? Or search for co-worker relatives? Under Thompson v. North American Stainless, an employee’s relation to an employee who engaged in activity protected by Title VII may create retaliation liability for the employer. It’s a tough call for employers… if they investigate the relationships, they may discover a potential retaliation claim and avert disaster by holding off on an adverse employment action. If, however, the employer intends to carry out the action anyway then it might be better that they don’t know about any relationships (tough to prove 3rd party retaliatory intent when you don’t even know about the employee’s relationship with a 3rd party).

Every Question Creates Potential Retaliation Plaintiffs
Every question you ask during a discrimination investigation could lead to a retaliation claim down the road. Why? In 2009, in Crawford v. Nashville, the Supreme Court held (per the syllabus):
[Title VII’s] antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.
So the investigation itself may create employees who are protected.

Those are just a few Supreme Court opinions affecting employer investigations in the past few years (some, in the past couple of months). Investigations necessarily require a knowledge of the latest legal developments to avoid these pitfalls.

Image: 2010 Supreme Court, public domain as work of U.S. Government.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.