February 5, 2023

Volume XIII, Number 36

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February 03, 2023

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Don’t Look the Other Way – Anti-Discrimination Investigations Part 1

When a Pennsylvania employer learns about a possible workplace harassment case, the best move is to take prompt, reasonable and effective corrective actions. This series of blog posts will provide recent caselaw or statutory examples of when your workplace, school, or municipality may have an obligation to investigate.

Anti-Discrimination Laws, such as Title VII of the Civil Rights Act of 1964, and their state equivalents, impose an affirmative duty to investigate and take prompt remedial action when complaints of harassment are raised. Employers risk liability if allegations are made, nothing is done, and further harm results. In Newman v. Point Park Univ, a recent Western District of Pennsylvania case, the court acknowledged that the Third Circuit appears to have “left an opening” for bringing a discrimination claim on the basis of an employer’s inadequate investigation but to do so the plaintiff must show that the allegedly deficient investigation “effected a material change in the terms or conditions of the plaintiff’s employment.” Id. at *10. In Newman, the Plaintiff alleged, inter alia, a failure to timely investigate her discrimination and harassment claims. She claimed that failure constituted an adverse action for the purpose of her statutory substantive discrimination claims.

If an employer engaged in a good-faith investigation, the employee should not be able to pursue a discrimination claim on the basis of an allegedly inadequate investigation. The court in Newman found that the Defendant hired an outside law firm to conduct the investigation, which included interviewing Plaintiff. Defendant assessed her complaint, and the investigation results, and informed Plaintiff that it could not substantiate her reports. The Court held that Plaintiff did not plausibly show that Defendant’s alleged failure to timely investigate Plaintiff’s discrimination and harassment claims constituted an adverse action for the purpose of her statutory substantive discrimination claims.  If Plaintiff is “displeased” with the result of a workplace investigation, that does not mean that the handling of the investigation, its timeliness or conclusion, created a “cognizable discrimination claim.” Id. at *10, citing McFalls v. BrightView Landscapes, LLC.

Liability, in many instances, can be avoided if the employer demonstrates that it accomplished an immediate and complete investigation followed by prompt and appropriate corrective action. So, employers, don’t look the other way. Give that employment issue the attention it deserves now, or you may be dealing with it in court later.

©2023 Strassburger McKenna Gutnick & GefskyNational Law Review, Volume XII, Number 333

About this Author

Gretchen E. Moore Litigation Attorney Strassburger McKenna

Gretchen E. Moore is a shareholder and Vice President at Strassburger McKenna Gutnick & Gefsky. She has been with the firm since 2004 and also serves as co-chair of the firm’s Litigation Practice Group. Ms. Moore’s practice focuses on commercial and civil litigation and municipal law with an emphasis on contracts, construction, fraud and breach of fiduciary duty.

Ms. Moore practices in state and federal courts, before administrative boards and in arbitration and mediation proceedings. She represents municipalities in land use, zoning,...