Monday, September 22, 2008

Beware of Employer Delays

If you were forced to file an internal complaint against a coworker or supervisor alleging race-based discrimination, harassment, retaliation, etc., you probably learned a thing or two about how an employer (read: The Human Resources Department) can drag out an internal investigation.

Instead of engaging in a prompt and serious investigation of the facts, many an HR team will pursue a strategy of delay and then deny. They will prolong any investigation, hoping the employee will just let the issue die. Or, perhaps they will use the delay to retaliate against the employee, with the hopes of forcing them to resign (constructive termination) before the investigation is complete. Sometimes, the delay is used to give the false assurance that the investigation is being conducted thoroughly — leaving no stone unturned. The reality is that the company may be just using that time to come up with a counter defense to all of an employee’s arguments and evidence that validate illegal mistreatment in the workplace.

After all the hemming and hawing, these delayed investigations sometimes end up with the internal investigating team telling the complaining employee that they couldn’t find any evidence of wrongdoing on anyone’s part. Or, if HR acknowledges wrongdoing, HR may downplay the impact of any offending and illegal actions that the victim was subjected to. This may be followed by the employer promising the complaining employee that the offending employee or supervisor will be “dealt with.” In other words, the complaining employee may be promised that corrective steps will be taken to rectify the race-based harassment, etc.

But, what happens, when an employee is promised that misconduct will be rectified, but the employer does nothing to correct the behavior of the offending employee? And, is there something else afoot, when it comes to these delays in internal investigations?

When it comes to filing a complaint with an external agency (e.g., The Office of Human Rights or the EEOC), employees only have a certain number of days—after a race-based incident—to file a complaint. For instance, an employee may have 90 or 180 days to file a complaint with an outside agency.

So, the reality is that some companies will try to delay any internal investigation with the hopes of causing an employee to miss deadlines with outside investigatory agencies. If an employee files a complaint and it is accepted based on the fraudulent delay of the employer, the employer may try to argue that the complainant missed the deadline and, therefore, the entire investigation/complaint should be dismissed on that basis.

However, according to legal decisions an employer can’t engage in acts or omissions that serve to lull a complaining employee into foregoing a prompt attempt to vindicate his/her rights. Specifically:

“If an employer actively misleads an employee into missing the deadline for filing a charge by dragging out its investigation and assuring the employee that the harassment will be rectified, then the employer will be “equitably estopped” from challenging the delay.” (Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363 (D.C. Cir. 1998)


“An employer’s affirmatively misleading statements that a grievance will be resolved in the employee’s favor can establish an equitable estoppel.” (Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1531 (11th Cir. 1992)

So, if your employer has engaged in behavior that caused you to miss a complaint filing deadline with an outside agency, you can argue that you missed the deadline because you were misled and delayed by the intentionally manipulative actions of your employer. If the employer tries to get the complaint thrown out, based on the missed deadline, there is legal precedent for overruling that argument.


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