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How Not to Investigate a Harassment Complaint – Disotell v. Kraft
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A few years earlier, Disotell had previously had a sexual encounter with two other employees, (one of them the ex-wife of his supervisor) and in 2003 spoke of it to a friend at a bar, who proceeded to share this with co-workers. This led to an investigation after which Disotell was disciplined. He was transferred to the night shift, after which he started being harassed by four other employees, who subjected him to lewd comments about his sex life and his sexual orientation. These comments persisted for the better part of two and a half years. Disotell stated that Bougie himself witnessed some of this harassment, and, far from intervening, seemed to be amused by it.
Bougie did eventually tell the employees to lay off Disotell, even though he claimed he had no idea of what the employees had been saying to Disotell. This had the effect of stopping the comments for a few months, roughly December 2005 to February 2006, but the comments resumed from that point until Disotell left the workplace in May 2006.
Kraft launched an investigation after Disotell went off, but it was perfunctory. The in-house investigation spoke only to Mr. Bougie and three other supervisors. Bougie claimed that Disotell approached him about being harassed on only one occasion, about a month before he went on leave, a claim that the judge in the case would not find believable. Incredibly, the investigation did not speak to any of the four employees alleged to have been harassing Disotell, nor anyone else on Disotell’s shift.
Evidence also showed that Bougie spoke with people in HR and succeeded in persuading them that Disotell was exaggerating what happened because of depression and family matters. Bougie described what happened as a case of four employees simply “picking on” Disotell. He told the in-house investigation that Disotell approached him only once about being “picked on” and that he told the perpetrators to stop, which they did. Based on this, the in-house investigator concluded that what happened to Disotell did not amount to harassment. HR, relying on Bougie’s amateur diagnosis of Disotell, chose not to investigate further, and refused Disotell’s lawyer’s request for a meeting to discuss a termination package for Disotell, who the lawyer indicated had suffered a breakdown and would not be able to return to work. Disotell went on to sue Kraft for constructive dismissal.
Without any input whatsoever from the respondents in a harassment complaint, an investigation is by definition incomplete. Thus it would be impossible to rely on the findings of such an investigation in court. Not surprisingly, the judge found that Kraft did not undertake a serious investigation into Disotell’s complaint, and that Disotell had been constructively dismissed because of Kraft’s failure to follow its own harassment policy.
Kraft’s harassment policy required supervisors to ensure a workplace free from harassment. It also required supervisors to report incidents of harassment to HR, to respond appropriately to complaints and to be pro-active in preventing harassment. It explicitly prohibited unwelcome and lewd comments.
The court in this case cited precedent that “an employer owes a duty to see that the work atmosphere is conducive to the well-being of its employees.” The judge went on to find that when the employer fails to prevent harassment of its workers, it has breached this duty, and that such a breach can amount to constructive dismissal, as happened in Disotell’s case.
The court awarded Disotell 12 months pay in damages in lieu of reasonable notice, amounting to $51,141, minus $17,106 in mitigation income, resulting in $34,034 for Disotell.
The judge’s comments on the dangers of slipshod in-house investigations are worth remembering: “The H.R. investigation, in my opinion, demonstrated the inherent difficulty of in-house investigations between employees of long-standing relationships, especially when there are conflicting reports between supervisory and first level employees. Kraft has clearly invested much time and effort in creating and dissemination of a zero tolerance Harassment Policy. That policy however is only as effective as the individuals who administer it.”
Bottom line: having a robust harassment policy is only the first step for employers. Such a policy does little good if it is ignored. All employees, and especially those whose job it is to put such policies into effect, need to be trained in the steps to be taken whenever there is an incident of alleged harassment in the workplace. When supervisory staff do not buy into the policy, as in the case of Mr. Bougie, the consequences for the employer can be costly.
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