Investigation in Name Only?

One of the fundamental responsibilities of an employer is to provide their employees with a safe and respectful work environment This means that employers must protect employees from the inappropriate and unprofessional conduct of coworkers, customers, and other individuals who the employee encounters in their role with the employer.  Employers who receive complaints of discrimination, harassment, or other types of unfair treatment in the workplace have an obligation to take action to respond to the complaint and to remediate or stop the unlawful conduct.  The primary method of addressing an employee complaint regarding their treatment in the workplace is to conduct an investigation.  Four recent court cases have addressed the requirements of a workplace investigation and have identified the characteristics that make these investigations an effective means of both addressing the workplace conduct and providing the employer with a viable defense against claims from the employee. 

In EEOC v. SkyWest Airlines, Inc., No. 25-01491 (5^th Cir. 2026), the Fifth Circuit Court of Appeals, affirmed a jury verdict that awarded punitive and compensatory damages to a parts clerk who, after complaining about extreme sexual harassment by her coworkers, took an early retirement because the company failed to properly address her claims and correct or eliminate the unlawful behavior.  In reaching this decision, the court reviewed the investigation that was conducted by the employer and found it to be lacking.  The court noted that, while the employer conducted an investigation after the part clerks complained to human resources, the investigation was conducted in such a manner that the employer could not be absolved of responsibility for the conduct. In the court’s view, this lack of an effective investigation made the award of punitive damages appropriate.  Areas where the investigation fell short included:  not interviewing all witnesses and randomly selecting those witnesses to be interviewed; upon being told by a witness that there was a lot of sex talk in the workplace, failing to ask follow up questions or details regarding that talk; and a failure to obtain or ask for corroborating evidence related to the claim.  While warnings were issued to those who the subject of the complaint, no disciplinary action was taken against a supervisor who was directly involved in the harassment.  The investigator also failed to apprise the complainant regarding the conclusion of the investigation. 

In another Fifth Circuit case, Brenyah v. Columbia Hospital Corp. of Bay Area, No. 25-40200 (5^th Cir. 2026), the court reversed a lower court’s award of summary judgment on a nurse’s claim that she was subjected to a hostile work environment due to her race and national origin.  In that case, the employer argued that it had conducted an investigation into the nurse’s claims and had counseled nurses who made the comments that gave rise to the complaint.  The nurse, however, shared information with the court that negated the claim that the employer had properly investigated and addressed her complaint.  In reviewing the information provided regarding the investigation, the court found that – contrary to the testimony of the two investigators – no interview notes were produced in discovery, the investigators deviated from the normal practice of summarizing witness statements and having witnesses sign off on the summary, and witnesses who were identified as having corroborating evidence were not interviewed.  The court overturned the summary judgment decision, finding that the employer did not provide sufficient evidence to overcome the plaintiff’s claim that the investigation was not prompt, thorough, or designed to end the harassing conduct.

In addition to cases that provide guidance on how not to conduct a workplace investigation, the Fifth Circuit has also recognized positive investigation techniques that do support an employer’s attempt to address and remediate unlawful harassment.  For example, in Sotonwa v. Collins, No. 24-11043 (5^th Cir. 2025). the court affirmed a summary judgment motion in favor a Veterans Affairs medical center who demoted a physician in response to complaints by two employees that the physician sexually harassed them during their employment physicals.  In that case, the physician who was demoted challenged the employer’s decision, claiming that the decision was based on race, color, and national origin discrimination.   The employer did not make the decision to demote the physician lightly.  The employer after learning of the complaints conducted a thorough investigation using a four-member investigative board whose members had no personal relationship with the physician.  More than 20 employees were interviewed over the course of two months.  While the investigation resulted in a finding that the examinations complained of were inappropriate but did not rise to the level of harassment, the Board also found that the physician engaged in a pattern of abrasive, bullying leadership and recommended that he be required to complete sensitivity and other leadership training.  A new supervisor reviewed the Board’s report and recommendation, observed the physician’s conduct, and recommended that the physician be demoted.  The court upheld the employer’s decision to demote, finding that it was based on legitimate, nondiscriminatory business reasons as documented by the independent and comprehensive investigation conducted by the employer. 

Finally, in another court case decided by a federal district court, the court found that an investigation that was conducted in good faith but may have resulted in inaccurate conclusions did not warrant the overturning of the decision to terminate an employee who was the subject of sexual harassment complaints.  In Brauckmiller v. University of Texas San Antonio, Case No. SA-23-CA-01182-XR (W.D. Texas, June 2026), a senior manager was terminated after the college’s Equal Opportunity Services office investigated a complaint about the manager from a subordinate who alleged that the manager was sending her unwanted messages and comments on her personal cell phone and social media accounts.  The investigation  included meetings with the manager and the complainant and eight additional witnesses and evidence that was submitted by the employee and independently gathered by the investigator.  The investigation determined that the subordinate’s allegations were credible and that the senior manager had violated the college’s “Other Inappropriate Sexual Conduct” and recommended that the employee be terminated.  The senior manager challenged the validity of the investigation, alleging that it was biased, that evidence had been altered or concealed, and claiming that the human resources employees had conspired to villainize him.  The court rejected all of the claims of the senior manager, finding that the decision maker reasonably relied on the result of the investigation in deciding to terminate the employee.  The court noted that there was no evidence that the college relied on the report as a pretext for discrimination and that, even if the investigation report contained some inaccuracies, it was insufficient to overcome an employer’s right to fire an employee for any reason or no reason at all, as long as the reason wasn’t discriminatory. 

These decisions are an important reminder for employers of the need to conduct timely, thorough, and comprehensive investigations.  An improperly or poorly conducted investigation, rather than providing the employer with a valid justification for a negative employment decision, can be used by the employee is who subject to that decision to bolster their claim of discrimination or a claim that the employer failed to properly address their complaints.  While an investigation need not be perfect, it must be conducted in good faith, avoid the perception that the outcome is predetermined, and be properly documented.  myHRcounsel can assist you in planning your investigations, reviewing the results of an investigation, and in determining the appropriate outcomes based on the results of the investigation.  For more information on this issue, go to myHRcounsel’s HR Solutions Center, click on the Performance Management tab and review the forms and documents that we have provided on investigations.