The California Supreme Court in Cotran v. Rollins Hudig Hall International, Inc. found that for an employer to have “good cause” to terminate an employee, the employer does not have to prove that allegations of misconduct are true, just that the employer fairly formed a reasonable belief that they were true. So an employer must show not just that it honestly believed the charges, but also that it was reasonable to believe them.
“We give operative meaning to the term “good cause” in the context of implied employment contracts by defining it … as fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.”
An “adequate investigation” is good, but an effective investigation is better. The EEOC published some guidelines on what they think are the elements of an effective investigative process for a sexual harassment claim.
First, figure out if you need an investigation. If the alleged perpetrator does not deny the accusation, then there is little need for an investigation. You can go right to corrective action.
The investigation needs be started and completed promptly.
- Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 715 (2d Cir. 1996) (employer’s response prompt where it began investigation on the day that complaint was made, conducted interviews within two days, and fired the harasser within ten days);
- Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994) (employer’s response to complaints inadequate despite eventual discharge of harasser where it did not seriously investigate or strongly reprimand supervisor until after plaintiff filed charge with state FEP agency), cert. denied, 513 U.S. 1082 (1995);
- Saxton v. AT&T, 10 F.3d 526, 535 (7th Cir 1993) (investigation prompt where it was begun one day after complaint and a detailed report was completed two weeks later);
- Nash v. Electrospace Systems, Inc. 9 F.3d 401, 404 (5th Cir. 1993) (prompt investigation completed within one week);
- Juarez v. Ameritech Mobile Communications, Inc., 957 F.2d 317, 319 (7th Cir. 1992) (adequate investigation completed within four days)
The investigator should not be subject to the supervisory authority of the accused. After all, its really hard to conduct an objective investigation of the person who determines your paychecks and promotion.
Follow the same note-taking procedure for all of your witnesses, including the Complainant and the accused employee.
Interview the Complainant first and get a complete story. This is your baseline of data to which others statements will be measured. Other interviews and documents will either confirm or dispute this data.
Then interview the alleged perpetrator and third parties who could reasonably be expected to have relevant information.
Do not reach a determination until all of the interviews are finalized and any credibility issues are resolved.
Even if the evidence is inconclusive and a determination cannot be made, preventive action should be made. There are always lessons to be learned from a bad situation or complaint.