• Employers Should Consider Independent Investigation To Avoid Getting Burned
  • October 5, 2016 | Authors: Meredith Merry Campbell; Joy C. Einstein; Gregory D. Grant
  • Law Firm: Shulman, Rogers, Gandal, Pordy & Ecker, P.A. - Potomac Office
  • When an employee alleges he or she has been discriminated against-what do you do? The best practice is to conduct an investigation. But, as is true with much in life, short-cutting the investigation can backfire.

    Consider, for example, a recent federal case in which an employee claims she was harassed by text by a co-worker. She complains, and the company did the right thing and “investigated.” But the company took a short cut and spoke only to the alleged bad-actor. The alleged bad-actor manipulated the text messages to make it seem like the female employee invited the inappropriate texts from him because of a consensual relationship. The company took the manipulating co-worker at his word, without even asking the female for her side of the story, and fired the female employee for sending inappropriate texts. Not surprisingly, the Court rejected this approach, effectively concluding that because the employer relied on the tainted employee’s statement without conducting a fair investigation, the employer unlawfully fired the female.

    The case adopted the “cat’s paw” theory, which holds an employer liable if it relies on a biased manager’s evidence or observations when disciplining an employee. The new case takes this theory one step further, holding that even if the biased evidence comes from a co-worker (rather than a manager), the employer can be held liable.

    The “cat’s paw” theory is based on a fable where a monkey convinced a cat to reach into a hot fire and pull out chestnuts. Unbeknownst to the cat, which continues to burn its paws reaching into the fire, the monkey is eating the chestnuts and leaving none for the cat.

    What’s the takeaway? Don’t take a short cut with your investigations. The investigation must be fair and thorough. And consider hiring an outside vendor or lawyer to conduct the investigation - this will go a long way towards demonstrating the independence of the investigation. If employers are not careful, like the cat, they will get burned.