Employer's Will Often Attempt to Create 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)
Also…
“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.
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)
Also…
“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.
posted by S. Mary Wills at 9:00 AM
5 Comments:
My former employer was extremely manipulative and if you are not mentally prepared as you could not possibly be it will be a tormenting experience that will leave you cold and depressed!
The Human Resources department that I dealt with were deceptove manipulators who would try to turn your complaint into a social issue: LI never thought such and such was discriminatory but just that your dept was dysfunctional." This sta(ement is clear cut manipulation. They stalled - lied and conspired! That is how they dealt with complaints.
All they wanted to do is find out if you had any corroborators or witnesses so that they could bribe them or threaten them. Every action was a part of their plot - to get rid of you.
If an employer is willing to take all of these measures believe it or not, sometimes employers and coworkers become desparate and very angry after they find themselves violating the law and now after years of getting away with discrimination and retaliation to suddenly find after your allegations now have caused them to lose their livlihood and reputation they will beserk and go after you for blood. First they may try to to blackball you or try to set you up for false allegations with willing culprits who feel for their loss of an affluent position, prestige and money or for the right price.Birds of a feather flock together so every person hanging around them does not believe they should suffer any repercussions for treating blacks bad. The perfect thing would be to set you up for some false accusations and if they are willing to do anything to get their jobs back they will not care about you
Its all about the Benjamins and their lives. If necessary do like I had to do shoot a message to your friendly law enforcement or attorney. Let them know your concerns. It always looks good when you have previously complained about strange occurences, possible setups in your life like all of a sudden being given the keys to the office, shown how to handle office procedures in a quick way without training, given careless instructions in the handling of checks, telling you to touch draws in offices to place checks without a secure lockbox, told its not necessary to stamp checks on the reverse side immediately"for deposit only" payable to the company and you see personal information not being handled with care or shredded and security issues are lacking.
I tried to make these concerns known and constantly sent myself emails to my cell documenting every tidbit.
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I cannot stress this enough for anyone that is African-American in the work-place and you have excercized your legal rights to a "decision-maker" via correspondence and in person verbally. To make a long story short....I had reported, at the time, what a white supervisor in transition said in a company meeting :ie "He wanted to get rid of all the "urban kids he rides the bus with or works with b/c he didnt like what we said or or how we acted coming to and from the establishment." HR's investigation consisted of asking the person in question if the allegation was true. Subsequently, I was told that he remembered the conversation but there was some "misinterpretation" of what he said, and you know how it is when someone overhears a conversation their word or intentions arent always correctly interpeted. I had enough forsight not to throw a hissy and try to relieve this situation according to their implied policy. I asked them due to my dissatisfaction advisements from prior complaints and from the subsequent discrimination to allow me to use my earned time to pursure legitimate job opportunities using my "EARNED TIME" if I gave the appropriate notice so that I didnt interfere with their business needs. Obviously that verbal agreement didnt work the Employer purposfully wait-listed ALL of my requests and attributed it to a system error (electronic calendar which is controlled by my supervisor) Ultimately, when I questioned the validity and reported that they were not upholding their end of the bargan, I began to reassert my position that they didnt conduct a full and objective investigation and just belew me off and in addition to, didnt question the witnesses (3)regarding this situation that I was going file a report with the local EEOC and submit any corresponding evidence. After conducting a 2nd "investigation" it was found that I did have a legitimate complaint (in writing) and I was instructed to keep the entire issue "confidential." Two weeks later my sup wanted to meet with me regarding a "customer complaint" Upon entering the meeting my sup says, "We need to talk about your attitude." Upon hearing this I immediately questioned him "What do you mean we need to talk about my attitude?" We go back and forth for approximately 2-3 minutes, fed up I ask for a 3rd party to be involved. My supervisor disappeards for 2 hours no one questions me no one speaks to me, period. After the 2 hour time frame I get the "I need to speak to you down stairs routine." I am subsequently told that we're having your exit meeting b/c I was guilty of insubordination. Alas what doesnt come out in the wash comes out in the rinse, at my UI hearing it was a whole different tune. Their reason for terminating my employment was that the real reason for the meeting was to discuss a "comment" made weeks prior to the incident, that I refused to discuss the actual topic of the meeting and during that meeting I became insubordinate b/c I allegedly sat on the table and never took my seat and when the meeting wasnt going anywhere, my sup wanted to enlisted the help of another supervisor I blocked his path that got in his face, grit my teeth and kinda just grunted and said "that he is not man enough to hit me."
After filing my complaint I asked for my employee record and low-and-behold there is a e-mail from the supervisor to the decision maker indicating an entirely different.
Anyway its been about a year and some change and I visit this web page and alot of what the author speaks about...I read it and It makes me feel better tghat I aint the only one who can see through the bs. Discrimination exists......they might not say N----A you just gota read inbetween the lines. Your angry, you are loud, you have a bad attitude, can I touch your hair.
Be wary people, just like boxing keep your hands up at all times and dont be afraid to stand up to the closet racists.
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