Finding the Facts - Disciplinary and Harassment Investigation

Swenson v. Potter, 75 an employee complained she was subjected to sexual harassment by a male coworker. During subsequent litigation, the employee claimed that the employer violated Title VII by failing to take appropriate corrective action in response to her complaint. However, the court noted that the employer separated the two employees by moving the complainant to a different position, and initiated an investigation. The court noted that while it is not proper to transfer a complainant to a less desirable location, an employer has broad discretion to choose how to minimize contact between the two employees. The court held that there was no evidence indicating that the position the complainant moved to was less desirable than the one she occupied at the time of her complaint.

Case Study

Whitehall v. County of San Bernardino 76 It is important to note that paid administrative leave could be deemed an adverse employment action. A California Court of Appeal allowed an employee to proceed with a whistleblower retaliation claim based on the theory that being placed on paid administrative leave constituted an adverse employment action. However, the court noted that each case turns on its own facts and did not find that paid administrative leave always constitutes an adverse employment action. As the court noted: “The impact of an employer’s action in a particular case must be evaluated in context. ...an adverse employment action must materially affect the terms, conditions, or privileges of employment to be actionable, the determination of whether a particular action or course of conduct rises to the level of actionable conduct should take into account the unique circumstances of the affected employee as well as the workplace context of the claims.” In Whitehall , two months of paid administrative leave pending an investigation was held to be an adverse action because there was little to investigate about Whitehall’s disclosure of accurate information to either the deputy county counsel who was handling the case or to the juvenile court.

Proceed very cautiously in moving a complainant or taking any employment action that could be perceived as adverse to the complainant. It may be more appropriate to temporarily transfer the alleged wrongdoer, and not the employee who complained. Asking the complainant for his or her input can also be helpful in achieving a mutually satisfactory interim solution and reducing the potential for on-going or compounding liability. Always document the complainant’s response.

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