Finding the Facts - Disciplinary and Harassment Investigation

 Disseminate the policy by providing a copy to every employee, directing them to read it, and encouraging them to seek explanations as to its meanings and requirements from a designated individual or office.  Provide mandatory periodic training of employees, supervisors, managers and officials, and maintain records of such training. Training of supervisors and managers should emphasize the need to be alert to possible harassment situations, and to report these promptly to designated staff, as well as the importance of strictly enforcing the policy. The Ninth Circuit has held that an employee who delayed in filing an internal harassment complaint until 19 days after the harassment occurred did not “unreasonably” fail to take advantage of the employer’s preventive or corrective opportunities. The delay was not unreasonable because the employee may have hoped the situation would resolve itself or may have been concerned about any adverse employment consequences. 220 The Ninth Circuit also found that an employer successfully established a Faragher-Ellerth defense to a Title VII harassment case where the employer took steps to immediately correct the employee’s work situation and the harassment stopped. The employer had offered to conduct an investigation, but the employee insisted on handling the situation himself. And the employee never told the employer the “gory” details of the alleged harassment. He just said that the accused’s behavior had gone too far, so the employer was never aware of the severity of the alleged misconduct. 221 The United States Supreme Court held in Crawford v. Metropolitan Government of Nashville and Davidson County that Title VII’s retaliation provision extends protection to an employee who speaks out about discrimination not on his or her own initiative, but in answering questions during an employer’s internal harassment investigation. 222 The Court found that this holding was consistent with Ellerth and Faragher because employers have a strong inducement to ferret out and put a stop to discriminatory activity in their operation. In Crawford , Metropolitan Government of Nashville and Davidson County, Tennessee (Metro) began investigating rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes. As part of the investigation, Metro asked Vicky Crawford whether she had witnessed inappropriate behavior on the part of Hughes. Crawford described several instances of sexually harassing behavior. Metro fired Crawford soon after finishing the investigation. Crawford sued Metro for retaliation under Title VII. The Court found that Crawford was covered by the “opposition clause” under Title VII, which provides that it is an unlawful employment practice for an employer to discriminate against any of its employees because he/she has opposed any practice that is an unlawful employment practice under Title VII. The Court held that a person can "oppose" by responding to someone else's question just as surely as by provoking the discussion.

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