You’re an HR manager. An employee comes to you with a complaint that her supervisor (a company VP) has created a racially and sexually hostile work environment. You know that the VP was accused of sexual harassment a year earlier, because you authored the letter to the VP warning that any reoccurrence would result in further disciplinary action. You now must choose one of two options: 1) investigate the complaint in accordance with the company’s HR policies and, if confirmed, take prompt remedial action; or 2) ignore the company’s HR policies and apply your “instinct and intuition” to decide what discipline is warranted.

Regrettably, in Volland v Mobile Mini,Inc., the employer’s HR manager chose # 2 - she conducted an investigation, but did not impose any discipline on the VP. The HR manager’s explanation was that she followed her “instinct and intuition” and concluded that further disciplinary action was not warranted. This led the Court to conclude that the employer’s HR policies were not enforced and that the employer could not rely on one of few silver bullet defenses available to employers – the Faragher defense. The Faragher defense insulates an employer from liability for sex harassment claims if the employer has a “proven, effective mechanism for reporting and resolving sex harassment complaints”, and proves it investigated the employee’s complaint and took prompt remedial action against the harasser.

A jury will now determine if calling an Asian-American female account manager a “china-doll”and “hot little Asian”, and suggesting that she “use her body to market” and“flaunt her goods to get in the door,” created a hostile work environment. Had the HR manager chosen door #1, she would have:

  1. Conducted an immediate, serious and well documented investigation;
  2. Determined what discipline was warranted in light of the results of the investigation and in light of any previous complaints and disciplinary action;
  3. Implemented the discipline; and
  4. Advised the complaining employee of the results of the investigation, that disciplinary action has been taken, and to advise HR of any future conduct the employee reasonably believes to be retaliatory.

Instincts are great for poker and Battleship – not for decision making. Choose wisely.