Refusing Participation in a Workplace Investigation Has Consequences

 

After a California company terminated a manager for being untruthful and uncooperative during a workplace investigation, the manager sued for wrongful discharge and retaliation. McGrory v. Applied Signal Tech. Inc. (Cal Ct. App. 2013).

“Off-color” joke telling was part of the initial complaint against the manager. The company retained an attorney to conduct an impartial investigation. Investigation findings cleared the manager of alleged gender bias for giving the complainant a performance improvement plan, but the investigation did determine that the manager regularly made sex- and race-based jokes at work, and that he was uncooperative and untruthful during the investigation process. For that, and concern for future liability stemming from potential claims by other employees, the manager was terminated.

The court determined that the manager’s evasiveness and failure to cooperate in the investigation was not protected. The court said, “[W]hile refusing to participate in or cooperate with an employer’s discriminatory action may be a protected activity when it amounts to opposition to a forbidden practice, refusing to participate in or cooperate with an investigation into a discrimination claim is not participation or assistance and is not a protected activity” under Title VII of the 1964 Civil Rights Act.

“The participation mandate question in workplace investigations is analogous to at-will employment. Employers should maintain the expectation as a fundamental right, but avoid justifying disciplinary action or termination on it exclusively.” says Mark Flynn, director of MSEC’s Workplace Investigation Service. Contact investigations@msec.org for more information.