Thorough internal investigation saves employer from discrimination claim

By: Jon Hyman

June 03, 2019

A bank fires two female employees for violating its vault-access policy. They claim sex discrimination, pointing their fingers squarely at three male employees who they say violated the same policy, but only received performance counseling.

Open and shut discrimination case? Not quite.

The two fired employees were caught on video violating the policy and admitted to their misdeeds. The three men who they say are comparable? Two denied it, and there was no video surveillance to prove otherwise. And the third admitted to the misconduct but claimed mitigation because a supervisor had bullied him into it.

In this case, the bank’s thorough investigation into all of the allegations saved it.

Fifth Third conducted an extensive internal investigation, which included employee interviews and review of two months of cash-vault security-video.… Fifth Third had an “honest belief” that the factual differences between the women and the two men who were not seen on video and did not admit to violating the dual-control policy and Dreyer, who did violate the policy under non-pretextual mitigating circumstances, justified their disciplinary decisions. Because there are no disputes of material fact as to Fifth Third’s “honest belief,” the district court’s grant of summary judgment was proper.

This case—McLaughlin v. Fifth Third Bank (6th Cir. 5/24/19)—is a great reminder of the importance of thoroughness when investigating internal complaints of discrimination. The “honest belief rule” is one of most effective shields available to employers in discrimination cases. It means that as long as the employer has an “honest belief” in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because, in reality, it is incorrect.

Still, if you want to be able to argue that your honest belief justifies your decision, you better be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence developed in a thorough investigation, is best. Courts are loath to second-guess employers’ business judgment, but will not hesitate if it appears an employer slacked in its investigatory responsibilities.

 

This post originally appeared on the Ohio Employer's Law Blog, and was written by Jon Hyman, Partner, Meyers, Roman, Friedberg & Lewis. Jon can be reached at via email at jhyman@meyersroman.com, via telephone at 216-831-0042, on LinkedIn, and on Twitter.