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What NOT to do when accused of discrimination by a subordinate

January 28th, 2013  |  Lorene Park

If you are a manager, and an employee has accused you of discrimination, here are a couple of suggestions.

  • Do not fail to cooperate with an investigator ― if there are legitimate reasons for having disciplined a subordinate who accused you of discrimination, spill it. In McGrory v Applied Signal Technology, Inc, the manager declined to identify workers who had complained about the subordinate, citing privacy reasons. But, it is hard to imagine an outside investigator, who is an attorney, will spill the beans.
  • Do not tell the investigator off color jokes in excruciating detail. You would think that would go without saying. Sure, you should cooperate and admit your missteps, but it really is not in your best interest to elaborate by telling your favorite dirty jokes.

One manager in California did both and, as a result, gave his employer a legitimate nondiscriminatory reason to fire him. Here is the tale of McGrory, try to learn from his story.

Investigation of employee. The department manager, who reported directly to the chief financial officer (CFO), had a dozen subordinates, including a female who lodged a complaint against him with HR. He had previously given her a warning for poor performance after her coworkers complained. She soon accused him of harassing her and discriminating against her based on her gender and sexual orientation. She had recently announced her marriage despite Proposition 8. She also reported that he told off-color jokes insensitive to other cultures. The employer investigated using an outside female attorney whom the employee (and a male subordinate) found biased and confrontational.

The attorney’s report partially exonerated the employee, finding the subordinate did have performance issues, but also substantiated the claim that he regularly made sexist and racist jokes. Further, the report indicated that the employee and a male subordinate were uncooperative and untruthful in the investigation. As a result, the employer fired the employee and disciplined the male subordinate. The employee filed suit, alleging termination in violation of the public policy against gender discrimination. He also asserted a defamation claim based on the HR vice president’s statements to other employees that he had been fired for not cooperating with the investigation. The trial court granted summary judgment for the employer, finding it had legitimate reasons for the termination and the employee failed to show pretext. The court also found that the alleged defamatory statements were privileged.

Legitimate firing. Affirming, the California Court of Appeals found no evidence warranting a reasonable inference that the employee was fired because he was male. The report on his female subordinate’s allegations found that he did not discriminate, but that he violated the employer’s policies on sexual harassment and ethics. Several witnesses reported that he regularly made racist or sexual comments or jokes. Not only did he admit it to the investigator, he told her a couple of the jokes, one of which made vulgar references to a woman’s breasts and a man’s penis.

As to other facts, however, he was not forthcoming. Citing privacy concerns, he refused to disclose his rankings of subordinates or who had complained about the subordinate whose allegations started the investigation. The investigator concluded that firing the employee was justified and recommended that a male subordinate, who was also evasive, receive a warning.

The employee claimed the investigation was a “proceeding” under the Fair Employment and Housing Act and his participation was a protected activity for which he could not legitimately be fired. The appeals court disagreed, reasoning that being uncooperative or deceptive in an internal investigation of a discrimination claim is not protected under state or federal law. Thus, the employer had a legitimate reason for the termination. The employee’s violation of policies on sexual harassment and ethics, as well as the employer’s concern over legal liability, were also legitimate nondiscriminatory reasons for his termination.

No pretext. Rejecting the employee’s attempts to show these reasons were pretextual, the court found that the CFO’s only giving the employee one of the reasons (misconduct in the investigation) for his termination did not show the employer gave conflicting reasons and did not undermine the other two reasons (violation of policies; legal liability concerns). Moreover, there was no evidence that the investigation was biased against men; indeed, the record evidence was to the contrary. In addition, there was no disparate discipline here because the other two men whom the investigator found to have told inappropriate jokes, one of whom received a written warning for misrepresentations in the investigation, were subordinate to the employee. Thus, they were not similarly situated and they engaged in different conduct. Because the employee failed to show that the employer’s reasons for firing him were pretext for discrimination, summary judgment was appropriate.

Defamation. The employee alleged that he was slandered when the HR vice president told a coworker that the employee was fired for being uncooperative in the investigation, despite receiving warnings. Rejecting this claim, the court found that the employer’s statements to a worker concerning the reason for the termination were conditionally privileged. Although the common interest privilege is not well-defined, it applies when an employer makes statements in good faith so appropriate action can be taken against the employee; the danger of future breaches is minimized; and workers do not develop misconceptions affecting their employment. Significantly, there was no evidence the HR vice president believed the employee was cooperative when he said otherwise. It was undisputed the investigator reported that the employee did not cooperate and there was no evidence that a reasonable person could not have believed the investigator’s report. Thus, the comments were conditionally privileged.

The moral of the story for managers? Cooperate in an internal investigation and be willing to justify your decisions (i.e., if there is evidence supporting your discipline of a subordinate, cough it up). Oh, and if you were clueless enough to tell racist and sexist jokes in the workplace, own up to it (beg forgiveness and promise to stop), but there really is no need to repeat your favorites in excruciating detail.

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