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Does Smoke Always Equal Fire In Harassment Cases?

Does Smoke Always Equal Fire In Harassment Cases?

Investigate-then-act approach a wise decision for investigators.

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Consider the following, taken from Briggs v. University of Detroit-Mercy (E.D. Mich. 5/27/14), and then let’s talk. 

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Plaintiff Carlos Briggs, former assistant coach of the University of Detroit Mercy (UDM) men’s basketball team, complains that his former boss’s boss, UDM’s athletic director (Defendant Keri Gaither), accompanied the team on road trips to engage in a sexual relationship with one of Plaintiff’s fellow assistant coaches, and that consequently, Gaither granted preferential treatment to her paramour to Plaintiff’s detriment. She later admitted the relationship with the other assistant coach, and both were fired. Plaintiff alleges that the relationship created an openly sexually-charged atmosphere … thus creating a distasteful work environment.

Plaintiff[’s] complaint suggests that his repeated exposure to such salacious and offensive conduct just must give rise to some type of Title VII discrimination charge—Plaintiff argues what amounts to “where there’s smoke there’s fire.” That argument turns out to be a fallacious one, however: affirming the consequent. Fire can indeed cause smoke, but sometimes there is nothing more than smoke, or it is from a different source. Here, the relationship between Gaither and Plaintiff’s co-assistant coach, Derek Thomas, may well have given rise to an unprofessional and unpleasant environment, but it does not give rise to a recognized cause of action.

What should you do in your workplace upon the receipt of a harassment complaint? Should you:

  1. Take solace in the Briggs decision and fall back on a smoke-and-fire defense?
  2. Presume that smoke always equals fire and act according? Or,
  3. Adopt a middle ground investigate-then-act approach?
If you chose number 3, you chose wisely. Here is what you should do.
  1. Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
  2. Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
  3. Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
  4. Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
  5. Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.
Jon Hyman
Jon Hyman

Partner, Meyers, Roman, Friedberg & Lewis

Jon Hyman, a partner at Cleveland’s Meyers, Roman, Friedberg & Lewis, provides proactive solutions to businesses’ workplace problems. He authors the nationally recognized and multiple award winning Ohio Employer’s Law Blog, in addition to two books, Think Before You Click and The Employer Bill of Rights. Jon is an in-demand speaker, having lectured around the county on social media and other workplace legal issues. Jon offers his insight as a member of Workforce Magazine’s editorial advisory board and the Ohio Chamber of Commerce’s Employment Law Committee. Most recently, John Stossel featured Jon on an episode of his Fox Business television show. Finally, Jon appeared on a November 1999 episode of Who Wants To Be A Millionaire, but sadly lacked the fastest fingers.

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