Professional Investigations Help Lower The Risk Of Retaliation Claims

Written exclusively for My Community Workplace for Not-For-Profits Organizations

A California state court jury recently awarded $2,400,000 to two professors in their retaliation lawsuit against a small, Christian nursing school. They alleged their employer terminated them for investigating sexual harassment claims made against the school's founder.

The former dean received $654,000 in compensatory damages, and a former professor received $751,000 in compensatory damages. The jury also awarded each plaintiff $500,000 in punitive damages.

The plaintiffs accused the university and its founder of violating Title IX, which prohibits sex discrimination in schools receiving federal funding, and the California Fair Employment and Housing Act, which prohibits harassment and retaliation against protected individuals.

The plaintiffs alleged in their lawsuit that the founder created an "overly sexualized" and hostile work environment.

They further alleged that the founder serving as the school's Title IX coordinator created an impermissible conflict of interest because he was accused of unwanted touching and sexually inappropriate comments by students.

The plaintiffs' attorney said she focused on the retaliation aspect of the lawsuit rather than her clients' hostile work environment claims. According to the defendants' attorney, "Ultimately, the jury focused on the retaliatory aspect of the school's actions and found there was no harassment or hostile work environment on the part of the school or the individual defendant."

Attorneys for the university and its founder claimed the two professors were terminated because they were suspected of planning to start a competing school and failed to cooperate with the university's investigations into the matter. David Siegel "CA Jury Awards Fired Professors $2.4M, Including Punitive Damages, In Wrongful Termination Trial" blog.cvn.com (Oct. 05, 2021).

Commentary and Checklist

Supporting sexual harassment investigations in your nonprofit does more than reduce your harassment exposure - it also reduces your retaliation exposure.

To be effective at reducing the risk of retaliation, employers must investigate all reports of wrongdoing automatically, no matter who is accused of wrongdoing. Do not allow anyone in the organization to choose which reports are investigated and which are not.

Create an effective reporting system, including a third-party reporting mechanism employees can use to make reports. Train all employees on how and when to report.

State in your written policy that interfering with an investigation will lead to disciplinary action, including possible termination.

Here are some other steps nonprofits should take to prevent retaliation:

  • Include an anti-retaliation provision in your equal employment policy and other policies prohibiting wrongdoing.
  • Provide more than one channel for employees to report wrongdoing, including an outside party or mechanism if possible. Allow for anonymous reporting as long as the reporting mechanism makes it clear that fraudulent reports are not tolerated, and that adequate information is needed to investigate the report.
  • Provide training for managers on retaliation and the rights of employees who have made claims of wrongdoing.
  • Have trained investigators ready to immediately investigate all claims of harassment and retaliation.
  • Create an incident management team to oversee the management of incidents in your organization.
  • When unethical behavior is discovered and worthy of some form of discipline, make certain that your discipline is consistent with past disciplinary actions taken.
  • Make certain that any employee who makes a good faith report of wrongdoing is protected from retaliation for making the report.
  • Consider involving outside counsel when establishing an incident reporting system and making decisions regarding discipline.
  • Encourage managers and supervisors to consult with human resources before taking an adverse employment action against any employee.
  • Take all complaints of retaliation seriously and respond quickly.
  • Document carefully all efforts to prevent retaliation and discrimination, including all investigations undertaken.
  • Consistently discipline employees, including managers, who retaliate against employees.
  • Provide the same retaliation protection to witnesses of discrimination that you provide to those who experience or report discrimination.
  • Evaluate closely any decision that disciplines or terminates an employee who has made a legal claim, testified or witnessed wrongdoing, or is related to a complainant that has made claim.
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