Inconsistency Does It Again

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 30, 2018

When it comes to compliance with Fair Employment Practices statutes and regulations, employers generally are not required to treat everyone the same. Rather, they’re required to have business reasons that explain the difference in treatment and to apply those reasons consistently. In the recent case of Donley v. Stryker Sales Corporation, the employer’s inconsistent explanations regarding its actions were enough for the court to conclude that a jury should decide whether or not an employee was terminated wrongfully. (7th Cir. Oct. 15, 2018).

The employee filed an internal sexual harassment complaint against her manager. After an investigation, the company terminated the manager. Then, the company started to investigate alleged misconduct by the employee who complained of the harassment. This alleged misconduct occurred six weeks earlier. What was the nature of the misconduct? The employee took pictures of a vendor’s intoxicated chief executive officer and showed those pictures to other employees. The company terminated the employee for doing so. Note that the sequence was the employee took pictures of the vendor’s intoxicated CEO, the employee reported harassment by her manager, the manager was investigated and terminated, and the company investigated and terminated the employee for the pictures she took six weeks earlier.

During the course of this litigation, the Human Resources Director and the employee’s supervisor each gave a different version of when they first became aware that the employee took pictures of the intoxicated CEO. The court concluded that those inconsistencies in conjunction with the delay in the employer’s investigation of the alleged misconduct were enough for a jury to determine that the employee was retaliated against for reporting sexual harassment.

There are three important lessons learned from this case:

1. Remember the timing of an adverse action is the most critical factor in a first impression of whether the adverse action may be retaliatory. In this particular situation, the investigation and termination of the individual occurred within days after she reported the sexual harassment.

2. A delay investigating misconduct, whether it involves harassment or other inappropriate or offensive behavior, may be perceived as evidence that an employer really did not take the matter seriously.

3. Before terminating an employee, establish the consistent explanation for the termination. What will the employer tell the employee as the reasons for termination? How will the employer respond to unemployment compensation inquiries? How would the employer respond to a discrimination charge or lawsuit? Establish the business reasons and the timing of those reasons in a manner that shows consistency among the key decision-makers involved, which in this situation were the employee’s supervisor and the HR Director.