What are the accused’s rights in an investigation?

Recently an employee who quit filed a harassment claim stating I used abusive language towards him and made him feel uncomfortable and forced to quit his job. I was never notified about the claim. I found out over a 1 month time period due to employees/non employees stating they were being questioned. I told my supervisor several times that the employees were gossiping/were non compliant/making remarks about me. When I was finally contacted by an investigator, I stated the incident did not occur. I asked the investigator about the long wait, and was told “the claim was dropped off to her when she was gone and had other terminable issues to take care of first.” Now, two 2 weeks later, my HR rep wants to meet with me. What rights do I have for this improper investigation, the retaliation against me from my employees, and the hostile work environment the company created for not conducting the investigation properly?

Posted  01-12-2011

Ann Kiernan replies:

From what you have written, this certainly sounds like a poor investigation! It was not prompt, it was not kept confidential, and it may not have been fair. But case law about the accused’s rights in an investigation is very sparse.

In a 2009 federal appeals case from New York, Carl Sassaman was accused of sexual harassment. After an investigation, his supervisor told him that he would be terminated unless he chose to resign, saying: “I really don’t have any choice.

[The complainant] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.”

The Second Circuit Court of Appeals ruled that a reasonable jury could construe the supervisor’s pointing to the propensity of men to sexually harass women as an invidious sex stereotype, and, therefore, that Mr. Sassaman could claim that his forced resignation was sex discrimination. The appellate court rejected the employer’s argument that the supervisor’s fear of a lawsuit justified his decision to pressure Mr. Sassaman to resign. However, the court explained that it was not holding that an arguably insufficient investigation of a complaint of sexual harassment leading to an adverse employment action against the accused is, standing alone, sufficient to support an inference of discriminatory intent. Sassaman v. Gamache, 566 F.3d 367 (2d Cir. 2009)

I suggest that you contact a local employment law attorney to get specific advice about your situation.

Good luck.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:41+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.