This post is from my LinkedIn group—Charles Krugel’s Labor & Employment Law & Human Resources Practices Group. Occasionally, I’ll post discussions from my group if they pose interesting discussion topics.

Shaun Reid of the New York City management side labor & employment law firm Reid Kelly, posted an article from his firm’s website about a federal appellate case in which a company HR director was fired for their recommendations subsequent to an internal sexual harassment investigation. “The 2nd Circuit ruled that the director isn’t protected by the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, unless the investigation was in response to an EEOC complaint.” According to Shaun:

The case is called Townsend v. Benjamin Enters. Inc., 2d Cir., No. CV-09-197. The Second Circuit covers New York, Connecticut, and Vermont.   This decision is consistent with the holdings of the 7th, 9th, and 11th Circuit Courts of Appeals. See Hatmaker v. Memorial Med. Ctr., 619 F.3d 741, 746-47 (7th Cir. 2010); EEOC v. Total Sys. Servs,221 F.3d 1171, 1174 (11th Cir. 2000); Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990).

Although I disagree with the court’s finding here, my advice for companies is that it’s not wise to fire your investigator because you personally don’t like the outcome of their investigation. If you’re going to fire you investigator do it for objective reasons that have no connection to personal biases held by company officers/executives.

Below is the actual LinkedIn group discussion.

 Shaun Reid

HR Directors Thrown Under the Bus by Yet Another Federal Appeals Court; reidkellypc.com

8 comments

 Charles Krugel • Great analysis Shaun. Unfortunate & wrong decision by the 2nd Circuit.

  Dana Pearl • So, if employers can fire HR Directors for pursuing an investigation into an internal complaint, how will they meet the “prompt and remedial” element of a claim, and meet the burden of an affirmative defense per Farragher and Ellerth?

 Shaun Reid • Great question! Based on what happened in this case, they may hire an outside consultant to conduct an “independent” investigation and try to shape the result of the investigation. Clearly some are willing to fire the HR Director and take their chances with a sham investigation.

 Dana Pearl • I’ve actually been asked to come in to investigate in these situations, specifically because it’s nearly impossible for the HR person to investigate the boss, for so many reasons! The question becomes, how serious is the employer about learning the truth? The case you mention involves a husband/wife business. That’s quite different from the situation involving non-related high-level employees in a corporation.

Plus, my reading of the case description is that the HR Director wasn’t fired for conducting the investigation, but for discussing it with someone who wasn’t authorized to be a part of the investigation. Did I miss something?

 Shaun Reid • That is the story the employer went with, though the alleged breach of confidentiality was her talking to the HR consultant that the employer hired to train her on HR issues. The HR Director said the consultant was her mentor. Judge Lohier did not seem to buy the employer’s version of events when he said in his concurring opinion that the HR Director was fired whilst conducting a competent investigation.

 Charles Krugel • It’s a strange decision. This is the 2nd circuit. It covers liberal states.

One would think that liberal states & jurisdictions wouldn’t adopt this sort of position. However, as pointed out in Shaun’s article, the same precedent was followed by the 7th, 9th and 11th circuits. These cover more liberal & moderate states; i.e., they’re hardly overwhelmingly conservative jurisdictions.

I wouldn’t advise that the employer fire the investigator/director even though those circuits might support it.

 Dana Pearl • Most of the Plaintiff’s attorneys I know think that the 7th circuit is conservative.

I agree with Charles that firing an investigator who is doing what should be done is pretty stupid. Even if the employer might win in court, due to this strange decision, it’s going to cost them a lot of time and money. And why would anyone want to work for a company with a reputation for firing the HR professional responsible for investigating internal complaints? In this information-age, applicants would be able to find out if the positions for which they’re applying are with companies that allow harassment/discrimination!