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Consistently Applied Internal Investigation Procedures Defeat Race and National Origin Claims
May 9, 2013

The Seventh Circuit recently provided guidance as to what constitutes a legally-sufficient internal investigation procedure. In affirming the lower court’s dismissal of a race and national origin discrimination claim brought by a college teacher, the Seventh Circuit emphasized the importance of consistent, even-handed application of the internal investigation process.

College Teacher Investigated for Anti-Semitic Remarks

In Smiley v. Columbia College Chicago, the Seventh Circuit reviewed a race and national origin complaint filed by Suriya Smiley, a part-time instructor at Columbia College Chicago (“Columbia College”). Columbia College informed Smiley that she could no longer teach on its behalf after it investigated a complaint against Smiley which alleged that she made derogatory, anti-Semitic remarks to a student.

Columbia College received a written complaint from a student after Smiley subjected him to remarks regarding his Jewish background, repeatedly teasing him regarding his appearance and heritage. Smiley also showed the student explicit pictures of herself and made unprofessional remarks that ranged from flirtatious to demeaning.

After reviewing the complaint, the department chair forwarded it to the Assistant Director for Student Development. The Assistant Director interviewed the student and drafted a memorandum documenting the meeting. The Assistant Director then interviewed Smiley, documenting this interview as well. During the interview, Smiley admitted that she “goofs around with [her class]” and that she “teased” a student.

The Assistant Director prepared a summary of her investigation and concluded that Smiley violated the college’s Anti-Discrimination and Harassment Policy (“the Policy”). The Assistant Director forwarded this information to the Vice President for Academic Affairs, who historically determined the consequences for faculty members who violated the Policy.

The Vice President met with Smiley, her union representative, and the department chair. After the meeting, the Vice President prepared a summary finding that Smiley noted her own Arabic background to her class, but denied making comments about Jewish people in class, and that Smiley was aware that she had embarrassed the student on certain occasions. The Vice President sent a letter to Smiley advising her that she was in violation of the Policy and that she would no longer be asked to teach at Columbia College. In response, Smiley sued Columbia College, claiming race and national origin discrimination under Title VII of the Civil Rights Act.

Clarity and Consistency Are the Keys

In Smiley, the Seventh Circuit harkened to a primary touchstone of human resources—neutral policies must be applied in an evenhanded manner. This is especially crucial when performing an internal investigation.

Smiley claimed that other instructors accused of violating the Policy received more favorable treatment. However, the court found that Columbia College consistently followed its procedures when investigating student/teacher complaints. In several recent internal investigations, Columbia College: (1) reviewed a written complaint; (2) interviewed the complainant; (3) interviewed the alleged harasser;(4) interviewed any relevant witnesses; (5) created a written summary; and (6) issued a decision based on the findings of the Vice President.

Columbia College also followed this procedure with respect to Smiley. After the college received the student’s written complaint, at least four College employees interviewed the student. Both the Assistant Director and the Vice President interviewed Smiley on separate occasions. After reviewing the interviews, the Vice President informed Smiley that she had violated the Policy and would no longer be permitted to teach on behalf of the College. Columbia College based its decision on Smiley’s admission that she “goofed around with her students, teased her students, and acknowledged that [the student] was upset by one of her comments and bolted out of class.”

Smiley argued that the College should have interviewed other students in her class. However, Smiley could not identify any witnesses to provide any relevant information. Moreover, the Policy did not require interviews of any witnesses aside from the complainant and alleged harasser. Rather, the Policy only required an interview with the student and the faculty member to determine whether the Policy had been violated.

After a review of the procedures followed in five other internal investigations, the court found that the investigations did not suggest that the other instructors were treated more favorably, but rather were treated consistently. Thus, the Seventh Circuit affirmed the lower court’s award of summary judgment to Columbia College.

The Takeaway

Employers should have clear, written internal investigation procedures that are available to all employees, preferably in an employee handbook. These procedures should be followed in every incident, and every step should be clearly documented. Ideally, an internal investigation should include the following steps:

  • Obtain a statement of the allegations reduced to writing and acknowledged by the complainant;
  • Interview the complaining party;
  • Interview the alleged harasser;
  • Review the terms of any anti-discrimination and harassment policy with the alleged harasser;
  • Permit the alleged harasser to provide a written statement;
  • Identify and interview any relevant witnesses;
  • Consider whether it is necessary to re-interview either the complainant or alleged harasser;
  • Draft a written summary;
  • Provide a summary to the decision maker for review;
  • Determine whether a violation of the policy has occurred;
  • If a violation has occurred, determine what consequence or response will effectively prevent reoccurrence.

Although this procedure may seem rather lengthy, it represents a “best practice wish list”. Employers should use this list solely as a place to start when designing the internal investigation procedure that will best fit the uniqueness of their workplace. If you have any questions regarding this article, please contact your Davis & Kuelthau attorney.

 

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