Academic journal article Southern Law Journal

Critical Timing Issues with Respect to Workplace Investigations: What Would the U.S. Supreme Court Say?

Academic journal article Southern Law Journal

Critical Timing Issues with Respect to Workplace Investigations: What Would the U.S. Supreme Court Say?

Article excerpt


Many court decisions have addressed issues surrounding discriminatory harassment in the workplace. These decisions have given employers broad commands, but very few specific guidelines for meeting their court-derived obligations. While courts generate sweeping standards for employers, such as telling them to investigate such claims promptly and to conduct timely investigations, overall, they appear reluctant to offer definite rules for compliance with their edicts. This lack of certainty leaves even the best intentioned employer wondering how to meet its obligations under the law while leaving legal practitioners to argue and brief similar issues time after time, rolling the dice to see if they can win on summary judgment based on a given set of facts. This article looks at the cases which have addressed timing issues with respect to work place investigations and those which have outlined when the duty to investigate arises in order to pull from the body of case law a set of best practices for employers and suggestions for practical, clear legal rules for jurists to adopt.


Courts generally state that the obligation to investigate arises when the employer receives notice of alleged employee misconduct.* 1 Jurists acknowledge two types of notice to employers of workplace discriminatory harassment: 1) actual notice; and 2) constructive notice.2 Simply put, actual notice occurs when an employee makes the employer aware of the misconduct. However, attempts to apply the rule generate many questions. For example, which employees within the organization constitute the employer? Does the complaint need to be made during the working day and on company property? Must the employer investigate allegations of prior conduct which, according to the complainant, have already ceased because either the complainant or the alleged harasser has permanently left the workplace? Should the employer investigate in cases where the complainant reports harassment, but affirmatively requests the employer not to investigate?

Developing rules with respect to constructive knowledge cases is even more challenging. In a hostile environment harassment case arising between co-workers, courts require employers to remedy any harassment of which they know or should have known 2 Employers conduct investigations in order to determine if a remedy is needed and if so, what sort of remedy would stop future harassment while making the victim whole.3 4 Thus, the question arises, in the absence of an actual complaint, when do the courts deem that employers should have known about the harassment and, therefore, should have started an investigation? When is harassment within an organization considered so pervasive as to have put the company on notice of the misconduct? Does the employer have the obligation to investigate rumors? Do rumors have to reach the ears of a member of higher management, or is it enough that several employees have been discussing the rumor for some time?

A. Case Guidance - Actual Knowledge

1. Who Within the Organization Constitutes the Employer?

The identity of the persons within the organization who can receive complaints that then put the employer on notice of alleged harassment and trigger the duty to investigate is an important question to determine. Courts generally state that complaints to higher management constitute actual knowledge.5 So, who is "higher management?" Is it anyone with the title of supervisor? Does it have to be someone with the ability to hire, fire, transfer, or discipline or just someone who can direct the work activities of another? Can it be someone with the apparent authority of a supervisor? Can we look to the company policy to decide or have the courts set an objective set of criteria to follow? Unfortunately, the courts do not appear to provide uniform answers to these questions. The following synopsis outlines the various approaches by different jurisdictions showing that there is no current agreement among the courts as to a workable rule. …

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