Workplace investigations in the #MeToo era

Looking for an interesting read to brainstorm workplace investigations in the #MeToo era? Here’s a recent article from SHRM that’s worth your time.

Source: “How to Investigate Sexual Harassment Allegations,” SHRM, by Dori Meinert (1/18/18).

Tenth Circuit restates summary judgment test with extensive discussion of multiple ADA and general employment law doctrines

The Tenth Circuit restated the test for granting summary judgment in favor of employers, and in doing so extensively discussed multiple doctrines frequently raised in such motions, including the honest belief doctrine, the adequacy of an employer’s investigation and the reasonableness of requested accommodations. With the regard to the last doctrine, the court noted that, as a matter of law, when workers advise their employers of a disability and request an accommodation after they have engaged in workplace misconduct, it is not a reasonable accommodation to ask that such misconduct be excused due to their disability. The court cited its 2004 precedent, Davila v. Quest Corp., Inc., for the proposition that “excusing workplace misconduct to provide a fresh start/second chance to an employee whose disability could be offered as an after-the-fact excuse is not a required accommodation under the ADA.” The Court concluded that “a denied request for retroactive leniency cannot support an accommodation claim.”

The case was DeWitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017).


Employer’s investigation held reasonable under FCRA by Tenth Circuit

The FCRA (Fair Credit Reporting Act) is the federal law that governs background checks. Employers of DOT-covered drivers must run and participate in a background checking program.

In this case, the company had reported the plaintiff for an “Unsatisfactory Safety Record” because, while driving for the company, a speed monitoring device had reported him as driving at least 4 miles over the speed limit in a 7-day period, for which the company had issued him a “Serious Warning.” With that entry on his record, when the driver later applied to another company, his application was rejected because of that report. Accordingly he requested, pursuant to his FCRA rights, that the company re-investigate the matter and clear his record. The company reviewed its records and refused to clear the entry. The driver sued and demanded a jury trial.

The Tenth Circuit joined the First, Seventh and Ninth Circuits in holding that a jury trial is not automatically required to determine the reasonableness of every re-investigation. The Tenth Circuit then held that an investigation could be reasonable if the company did no more than “rely on its own records.” The company was not required to go back and review the original speed monitoring device’s logs. “(T)he scope of a reasonable investigation turns on the information about the dispute that the furnisher has received.”

(A)n investigation does not have to be exhaustive to be reasonable; (the company) may balance the costs and benefits of engaging in additional procedures.

The case was Maiteki v. Marten Transport Ltd., 828 F. 3d 1272 (10th Cir. 2016).