Charmaine McGuffey was a longtime veteran of the Hamilton County, Ohio, Sheriff’s Office (HCSO). She served on the transition team when Jim Neil was elected as Sheriff in 2012, and Neil subsequently promoted her to Major of Jail and Court Services.  She was the first woman to ever hold the rank of Major at the HCSO.

Sheriff Locks Up Harassment Claim

McGuffey seemed to perform well, with Neil describing her as his “favorite major” in her performance evaluation.  Even so, McGuffey felt that female officers in the department were not respected or treated properly, and she complained to Neil about two male subordinates in particular whom she felt were not collaborating with her effectively.  Neil reportedly responded that she just needed “to get along with these guys.”

In 2017, McGuffey’s administrative assistant filed a complaint against her for bullying and harsh language. Following an investigation that determined that McGuffey had created a hostile working environment, Neil offered McGuffey a demotion to a civilian post within the HCSO.  When she declined, Neil fired her, prompting McGuffey to sue in federal court for sex and sexual orientation discrimination.

Fair Investigation is the Key

The HCSO filed a motion for summary judgement (early dismissal) claiming that their actions were based on the investigation and its reasonable conclusions about McGuffey’s management.  The Court denied the motion, however, explaining that the “unusual nature” of the investigation meant that the jury should be allowed to decide whether the HCSO’s stated explanations for their actions were truthful of just pretext for illegally discriminatory motives.  The judge noted in particular:

• The seven previous investigations into alleged hostile work environment all involved heterosexual men, and none of those complaints were sustained;
• The previous seven investigations only focused on a specific event in the complaint while the investigation of McGuffey looked at her entire tenure as a major;
• The previous investigations only involved a few witnesses each; more than 30 people were interviewed in McGuffey’s case;
• The investigators failed to interview or disregarded all of the witnesses that McGuffey identified;
• The investigative report in the previous matters were five pages or fewer while the report on the complaint about McGuffey covered 108 pages.

The judge concluded “The obvious differences in the way these investigations were conducted raise genuine issues of material fact as to pretext.”  As a result, McGuffey’s claims will proceed to trial.

In an interesting twist, McGuffey is now the Democratic Party’s nominee for HCSO Sheriff in the November election, having trounced Neil in the primary last April.

Bottom Line

If an allegation regarding workplace conduct merits investigation, the process must be fair, impartial and thorough. The failure to conduct a proper investigation will very likely taint the results and influence a judge or jury to conclude that the complaints are justified.

In this case, it remains to be seen whether the employer will be able to explain away the differences that the judge observed between the McGuffey investigation and all of the others.  Even so, if more attention had been paid to insuring a fair and equal process, perhaps that effort would not be necessary now.

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A co-worker accused Albert Rinchuso, a pharmacist for the Brookshire Grocery Company, of looking at pornography on his work computer. During the company’s investigation, four female co-workers claimed that Rinchuso looked at pictures of naked women, gambled on his work computer and touched them offensively.

Employee Admits a Little Misconduct

Rinchuso admitted that he sometimes visited internet dating sites and sports pages at work but denied the allegations regarding pornography, gambling and touching co-workers.  Brookshire’s IT department could never confirm whether Rinchuso did in fact access pornography on his work computer.

Brookshire fired Rinchuso at the conclusion of their investigation, prompting him to sue claiming that his termination was motivated by his gender because:

→ The company relied on the interviews of female witnesses and declined to interview two male co-workers during the investigation;

→ The company’s had no video evidence of him touching his female co-workers or misusing his work computer; and

→ The company could not verify that he had viewed pornography at work.

It’s Not What You Do But Why You Did It

After the trial court dismissed the claim on summary judgement, Rinchuso appealed to the Eighth Circuit Court of Appeals, who affirmed the dismissal. The Court explained first that even if the three points noted above were true, they did not provide a “specific link” between the termination and gender-based motivation.  After all, Rinchuso admitted using the computers for personal reasons, which was in direct conflict with the company’s internet policies. Moreover, it seemed perfectly appropriate to the Court that an employer would elect not to interview men in a matter that involved only allegations of inappropriate touching of women.

As for the lack of conclusive evidence of touching or accessing pornography, the Court explained that the question is not whether Rinchuso actually engaged in the prohibited conduct but whether the company had a good faith belief that he did.  They found that Rinchuso’s admission that he violated certain policies, together with the consistent testimony of multiple co-workers, was sufficient to establish good faith and dispel the notion of an improper motivation. As such, Rinchuso could not have been victimized by unlawful discrimination.

Bottom Line

The ultimate issue in any discrimination case is not what the employer did but rather, what their motivation was for doing it.  Under both federal and state law, employment action is not wrongful unless it was motivated by the employee’s race, gender, age or other protected classification.  Often, that motivation can be inferred from the employer’s deviation from policy, proof that non-protected class employees were treated more favorably or even the mere absence of a cogent explanation for the action.

However, as this case showed, when the employer can demonstrate that they acted in good faith, there is no legitimate basis for suspecting a discriminatory motive.  Without the wrongful motive, the employer’s actions cannot be deemed unlawful even if their evidence was a bit insubstantial or their conclusions about the employee’s behavior proved to be erroneous.

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EEOC says that in light of the increasing number of harassment charges they are receiving (over 27,000 in fiscal year 2015), the time is right for comprehensive directives.

What the Guidance Says

Although there is nothing new or surprising in the Guidance, it nevertheless provides a good compendium of the practices that EEOC will be looking for to determine whether an employer maintains an effective harassment prevention program.

In addition, it offers an overview of the vast landscape of behaviors that might contribute to a harassment claim, and includes a number of less frequent but still troubling issues such as harassment based on the perception that someone is within a protected class, harassment by independent contractors, customers and other third parties, and harassment instigated via social media on employees’ personal sites.

The Guidance ends with EEOC’s list of “promising practices” designed to implement their five core principles of harassment prevention, namely:

• Committed and engaged leadership;
• Consistent and demonstrated accountability;
• Strong and comprehensive harassment policies;
• Trusted and accessible complaint procedures; and
• Regular, interactive training tailored to the audience and the organization.

Harassment policies and complaint procedures are particular points of emphasis in the Guidance.

Effective Harassment Policies

EEOC outlines the features of an effective harassment policy, which include:

–  An unequivocal statement that harassment based on any legally protected characteristic is prohibited and will not be tolerated;

–  An easy-to-understand description of prohibited conduct, including examples;

–  A description of the organization’s harassment complaint system, including multiple (if possible), easily-accessible reporting avenues;

–  A statement that employees are encouraged to report conduct that they believe constitutes unlawful harassment (or that, if left unchecked, may rise to the level of unlawful harassment), even if they are not sure that the conduct violates the policy;

–  A statement that the employer will provide a prompt, impartial, and thorough investigation;

–  A statement that the identity of individuals who report harassment, alleged victims, witnesses, and alleged harassers will be kept confidential to the extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;

–  A statement that employees are encouraged to respond to questions or to otherwise participate in investigations into alleged harassment;

–  A statement that information obtained during an investigation will be kept confidential to the extent possible, consistent with a thorough and impartial investigation and with relevant legal requirements;

–  An assurance that the organization will take immediate and proportionate corrective action if it determines that harassment has occurred; and

–  An unequivocal statement that retaliation is prohibited and will not be tolerated, and an assurance that alleged victims, individuals who in good faith report harassment or participate in investigations, and other relevant individuals will be protected from retaliation.

Such policies must be written and communicated in a clear, easy-to-understand style and format; translated into all languages commonly used by employees; Provided to employees upon hire and during harassment trainings, posted centrally and periodically reviewed and updated as needed,

Harassment Complaint System

An effective harassment complaint system, in the EEOC’s view, is one that:

• Is fully resourced, enabling the organization to respond promptly, thoroughly, and effectively to complaints;
• Is translated into all languages commonly used by employees;
• Provides multiple avenues of complaint;
• Provides prompt, thorough, and neutral investigations;
• Protects the privacy of alleged victims, individuals who report harassment, witnesses, alleged harassers, and other relevant individuals to the greatest extent possible;
• Includes processes to determine whether alleged victims, individuals who report harassment, witnesses and other relevant individuals are subjected to retaliation, and imposes sanctions on individuals responsible for retaliation;
• Includes processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment; and
• Includes processes to convey the resolution of the complaint to the complainant and the alleged harasser.

Bottom Line

At 75 pages, the Guidance is a bit imposing but it is full of very useful information on proactive harassment prevention, proper enforcement and effective training.  Once public comment is taken and the final version is issued, every employer is well-advised to go through the Guidance and see where their policies and procedures could be tuned up.

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