Could a shoddy investigation into a complaint of discrimination lead to a viable lawsuit by . . . the accused?


I’m generally skeptical when I read about lawsuits that individuals accused of discrimination bring against their former employers.

Last night, I read about a doctor who was terminated from his position after his former employer received an anonymous complaint allegedly accusing him of sex discrimination. The doctor (plaintiff) claimed that the defendants investigated the claim inadequately, inconsistent with a seemingly robust written investigation policy.

If true, a poor investigation probably isn’t actionable in court. However, the plaintiff alleged that his sex (male) motivated the inadequate response and his termination of employment without any sort of due process.

Theoretically, a termination under these circumstances could support a claim of discrimination, that is, if the plaintiff could demonstrate that his termination occurred under circumstances giving rise to an inference of discrimination.

That sounds a bit circular. So, I’ll provide an example.

There’s a case in which a plaintiff was terminated from a university after it received a letter from a female student accusing the plaintiff of sexual harassment. In that case, the court concluded that the accused-plaintiff had presented evidence that the university engaged in a clearly irregular investigative or adjudicative process amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex.

In other words, this decision was very fact-specific, the facts of which occurred against a general background of debate and criticism concerning the handling of allegations of sexual harassment and misconduct by American universities.

In the Second Circuit decision I read last night adjudicating the doctor’s claim, the court noted that his circumstances were “not analogous” to those of the other university case. Even if it could apply outside of the educational context, the plaintiff here provided no evidence suggesting that the defendants were under “criticism for reacting inadequately to allegations of sexual misconduct by members of one sex.”

The plaintiff could not “point to evidence closely tied to the adverse employment action that could reasonably be interpreted as indicating that discrimination drove the decision.” For example, had he produced evidence showing that his supervisor made “an invidious comment about the propensity of men to harass sexually their female colleagues,”  that would tend to show bias. But, he had no such evidence.

Instead, the plaintiff emphasized that the investigation was “clearly irregular.” But an investigation alone, even a bad one or none at all, isn’t enough by itself to infer bias.

For this plaintiff — or any accused — to succeed, they would have to present evidence that the employer felt pressure concerning their treatment of discrimination complaints or some other evidence from which a court could infer that the termination was motivated by unlawful bias.

“Doing What’s Right – Not Just What’s Legal”
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