Thursday, March 31, 2011

The punishment fits the crime – appropriate corrective action in harassment investigations

An employer has an absolute obligation to investigate a complaint of harassment, and, where founded, take appropriate corrective action to stop the harassment from continuing. Next week, we’ll look at the implications of when an employer fails at the former. Today, though, we’ll look at a case that helps define scope of the latter.

In Wilson v. Moulison North Corp. (1st Cir. 3/21/11), the plaintiff alleged that his employer failed to take appropriate corrective action in response to his complaint that coworkers created a workplace permeated by heinous racially discriminatory taunts. The plaintiff argued that the employer’s verbal reprimand and warning that future harassment would result in termination was too mild a sanction, and that the company should have immediately terminated them instead.

The court refused to armchair-quarterback the employer’s business judgment:

In most situations—and this case is no exception—the imposition of employee discipline is not a rote exercise, and an employer must be accorded some flexibility in selecting sanctions for particular instances of employee misconduct.... The short of it is that, given the totality of the circumstances, the punishment seems to have fit the crime....

We appreciate the sincerity of the plaintiff's outrage, but the discipline imposed need not be such as will satisfy the complainant.... The plaintiff’s argument that the sanction must have been inadequate because it was ineffective to stop the harassment is nothing more than a post hoc rationalization.... Barring exceptional circumstances (not present here), a reasoned application of progressive discipline will ordinarily constitute an appropriate response to most instances of employee misconduct.

The key takeaway here is the progressiveness of progressive discipline. When might a similar warning not suffice, and a court require more severe corrective action?

  • If the perpetrators are repeat offenders.
  • If discrimination is a long-standing problem for the employer.
  • If the employer has a history of inconsistent discipline.

Absent these “exceptional circumstances,” do not always jump to the conclusion that a harassment investigation must end in termination. Instead, make the punishment fit the crime.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or