|July 6, 2009|
Schiff Hardin Labor and Employment Alert
Most employers are aware of the importance of conducting a prompt investigation and taking effective remedial action in response to a sexual harassment complaint. Indeed, in many cases, such measures are the only defense available to employers in a sexual harassment lawsuit. But what happens when an employer, eager to avoid a sexual harassment lawsuit from the complaining employee, acts too hastily in punishing the alleged harasser? A recent case issued by the Second Circuit U.S. Court of Appeals offers a cautionary tale to employers undertaking investigations of harassment complaints. In Sassaman v. Gamache (No. 07-2721-cv, May 22, 2009), the court allowed Carl Sassaman, an election official for Dutchess County, New York, to proceed with his claim of constructive discharge based on improper "sex stereotyping" following the county's allegedly improper investigation of a female co-worker's sexual harassment complaint.
Carl Sassaman worked for Dutchess County as an elections specialist. He and a co-worker, Michelle Brant, enjoyed a casual, friendly working relationship which allegedly soured when, according to Brant, Sassaman began "harassing and stalking" her; she submitted a written complaint to her supervisor, David Gamache (who was also Sassaman's supervisor). Rather than conducting an investigation himself or referring it internally for investigation, Gamache referred the complaint to local authorities. Officers interviewed Brant and Sassaman. Sassaman denied the alleged conduct, which included phoning Brant at home, sending her notes and gaining access to her email on her work computer. The sheriff's office determined that there was insufficient evidence to support any criminal charges.
During the same time period, Gamache met briefly with Sassaman twice and then had several meetings with a lawyer that Sassaman retained. Thereafter, Gamache told Sassaman to resign or else he would be terminated. According to Sassaman, during that conversation, Gamache said that he did not have a choice, expressed fear of being sued because Brant "knows alot of attorneys," and surmised verbally to Sassaman that Sassaman probably did what Brant claimed he did "because you're a male and nobody would believe you anyway." A week later, Sassaman resigned.
Sassaman filed suit in the U.S. District Court for the Southern District of New York. He alleged that he was constructively discharged by the county and Gamache individually in violation of Title VII based on sex. The district court granted summary judgment for the defendants, and Sassaman appealed. The Second Circuit ruled that Sassaman succeeded in stating a prima facie case of sex discrimination because he was able to show that he belonged to a protected class, he was qualified for the job he held, he experienced an adverse employment action, and the adverse employment action "occurred under circumstances giving rise to an inference of discriminatory intent." Specifically, the court stated that Gamache's comment, "you probably did what [Brant] said you did because you're male," if made, could be construed as invidious sex stereotyping by a reasonable jury, noting that "Gamache appears to have defended his decision to credit Brant's allegations of sexual harassment by pointing to the propensity of men, as a group, to sexually harass women."
The court also found that the county's failure to independently investigate the allegations of sexual harassment could be construed as further evidence of discriminatory intent. Rather, Gamache turned Brant's complaint over to local authorities but no internal investigation was conducted by the county or Gamache. According to the court, while an insufficient investigation does not, on its own, create an inference of discriminatory intent, such evidence in conjunction with other evidence, as there was here, could support such an inference.
Finally, the county claimed that its actions were justified because it feared that a lawsuit would be brought by Brant if Sassaman were not terminated. While the court was sympathetic to the plight employers may face in such circumstances, the court rejected the county's argument, holding that an employer's fear of lawsuits is not justification to rely on impermissible sex stereotyping to resolve allegations of sexual harassment.
This ruling serves as a potent reminder of the balance of interests that must be observed by employers addressing complaints of sexual harassment or other kinds of harassment or discrimination. A thorough, unbiased, independent investigation is critical to the success of defending a claim brought by either the accuser or the accused. Investigations are best left to experienced personnel trained in investigation process and technique, and not front line supervisors who may not be aware of the importance of the process. As highlighted in this case, it is ill-advised to add personal commentary on the legitimacy of either the allegations asserted by the complaining party or any responses made in the interview.
For questions, advice or training on conducting investigations, please contact any attorney in Schiff Hardin's Labor and Employment group.
RECENT LABOR AND EMPLOYMENT PUBLICATIONS
"Major Victory For Employers: Supreme Court Rules that an Employee's Burden of Proof in a Discrimination Claim is Tougher under the ADEA than under Title VII," Labor and Employment Update (June 23, 2009)