An Employer’s Failure to Investigate a Discrimination Complaint in a Reasonable Manner Can Constitute Discrimination

A 2016 decision by United States Court of Appeals, Second Circuit, demonstrated that an employer’s negligence in investigating a complaint of discrimination can result in a finding of discrimination in certain circumstances. See Vasquez v. Empress Ambulance Serv., Inc., 835 F3d 267 [2d Cir 2016]. Commenting on the holding in the Vasquez case, the Second Circuit recently reiterated that,

“we have held that if an employee ‘manipulates an employer into acting as a mere conduit for his retaliatory [or discriminatory] intent,’ the employee’s intent can be imputed to the employer under a ‘negligence’ (i.e., a ‘knew or should have known’) standard.” See Naumovski v Norris, 934 F3d 200, 220 [2d Cir 2019].

An example may illustrate how this could play out in a workplace:

A long-time administrative assistant, Ms. Smith, states to her building principal that Ms. Keita, a recently hired co-worker, is frequently arriving at work late. Ms. Smith notes that the school’s business administrator, Ms. Peterson, is also aware that Ms. Keita has been arriving late. The principal speaks to Ms. Peterson and Ms. Peterson confirms that she has heard that Ms. Keita has been getting to work late with some frequency since being hired three months ago. The principal reports her discussions with Ms. Smith and Ms. Peterson to the school district’s superintendent. The superintendent, who has no patience for employees who do not arrive at work on time, decides to recommend that the board of education approve the termination of Ms. Keita’s probationary employment.

Following her termination, Ms. Keita, who is Muslim, files a discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) claiming religious discrimination. During the course of the EEOC investigation, access card swipe records obtained by the EEOC reveal that Ms. Keita was only late to work on two occasions. Further, internal emails between Ms. Smith and the business administrator include multiple references by Ms. Smith to Ms. Keita arriving late on several other days, yet the swipe card records confirm she had arrived on time every other day. Some of the emails indicate that Ms. Smith may have sincerely, but incorrectly, concluded that Ms. Keita was late on certain days when she had arrived on time. Emails between Ms. Smith and co-workers also reveal that Ms. Smith was adamantly opposed to a parental request that the school district consider making certain Muslim holy days school holidays, and included Ms. Smith writing that Islam is not really an “American religion” in her opinion.

If the EEOC or a court concluded, as they well might, that Ms. Smith’s false and/or mistaken complaints against Ms. Keita were motivated by discriminatory intentions, the negligent investigation by the school district could be sufficient to support a discrimination finding against it. The school district’s negligence would, arguably, consist of its failure to check the swipe card records prior to concluding that Ms. Keita was often arriving late and then terminating her probationary employment. Had the swipe card records been checked, the principal or superintendent would have discovered that there was reason to be skeptical of the seemingly consistent information being provided by Ms. Smith and the business administrator. This would have meant that Ms. Keita would likely not have been terminated for perceived tardiness, i.e., she would not have been terminated as a result of a co-worker’s discriminatory attitudes combined with the school district’s negligence in the handling of what seemed to be a relatively routine personnel matter.

Regardless of whether it is based on disability, religion, race or some other protected status, employees may harbor explicit or implicit biases that can shape how they interpret what happens in the workplace. When handling personnel matters, and particularly prior to taking an adverse employment action (termination, suspension, demotion, etc.,), it is important to consider whether information being relied upon has been verified in a reasonable manner. This means not simply crediting co-workers’ accounts about a given situation or accepting “evidence” provided by a co-worker at face value. In the Vasquez case noted above, a co-worker presented manufactured text messages including photographs leading to the termination of another employee. The employer failed to discover that these were fake because its investigation was inadequate, ultimately resulting in a finding of a Title VII violation.

The failure to conduct an investigation in a reasonable manner means that discriminatory attitudes, of which the supervisor may be totally unaware, will be imputed to the employer, so as to support a discrimination or retaliation claim. As such, where there is other available evidence (swipe cards, video footage, text messages, emails, or additional witnesses) that could verify or refute a given version of events, that evidence should be reviewed prior to reaching a final conclusion.

As we noted in our December 2019 edition of School Law Matters, effective October 11, 2019, the New York State Human Rights Law (“NYSHRL”) was amended to make it easier for employees to prevail in cases involving alleged employment discrimination. We anticipate that this will result in an increased number of such claims being filed against school districts and other employers. As such, promptly and effectively investigating personnel matters, especially those involving any hint of an allegation of discriminatory animus, is more important than ever to protect your school district from liability.

If you have questions regarding the foregoing, please contact Charles E. Symons at cesymons@ferrarafirm.com or at one of the telephone numbers listed below.