Question: We recently closed an internal investigation into a harassment complaint made by a manager with a finding that no facts supported her harassment allegations against a coworker. Instead, the investigation revealed that the manager who complained has been deficient in performing her duties. Can we fire the manager for the performance issues uncovered in the investigation?
Answer: You can, but it’s risky. To avoid a retaliation claim, your inquiry into and evaluation of the manager’s performance should be kept separate from the investigation. You do not want to create a connection between the manager’s protected activity and your adverse employment action, which could form the basis for a retaliation claim. The manager engaged in a protected activity by reporting a possible violation of the company’s policy against harassment, which deserves a full and fair investigation. Rushing to a termination decision based only on information learned in the harassment investigation creates a risk that the manager will claim the “real” motivation for termination is to punish her for reporting harassment, especially if you don’t have any record of performance issues prior to the complaint.
Federal Court Allows Retaliation Claim to Proceed Over Biased Investigation
In a recent federal district court case, a former manager was allowed to proceed to trial on her claim of retaliation under Title VII of the Civil Rights Act based on disciplinary action taken against her after she complained of sexual harassment. The evidence showed that the investigator conducted only a cursory investigation into the manager’s allegations that two employees made sexual remarks about her, even though the lone witness interviewed corroborated the manager’s account. Upon learning of “additional concerns” about her management style, the investigator expanded the scope of the investigation to include the manager’s performance deficiencies. The manager was issued a final written warning for creating a “toxic” work environment and her most recent performance review was downgraded to “meets expectations.” Prior to her complaint of harassment, the manager had consistently received high marks in her performance reviews. The court ruled that a reasonable jury could conclude that the company unlawfully retaliated against the manager when the harassment investigation transformed into an investigation of her difficult management style. The court noted that the investigator seemed “more motivated” to look into allegations about the manager’s conduct than her harassment complaint and it looked like the employer “jumped on the opportunity” to formally discipline the manager based on the investigation findings. Now the case will go on to a jury to decide whether the employer conducted a biased dual investigation that was designed to punish the employee for reporting sexual harassment (Williams v. Safelite Group, Inc., D Md, Mar. 2026).
Best Practices for Defending Adverse Employment Decisions
Before taking any action against an employee that negatively affects their employment, especially if they have recently engaged in a protected activity, gather all relevant facts and confirm that your organization: (1) has a legitimate, lawful reason for the employment action; (2) is treating the employee fairly and consistently with how other employees are treated in similar situations; and (3) has the documentation to prove it. For more information, see our Legal Guide, Retaliation Claims: How to Avoid Them, and our previous reporting on taking legally defensible actions. For a step-by-step guide on conducting workplace investigations, see our Legal Guide, Conducting an Internal Investigation. Vigilant members, contact your Vigilant Law Group employment attorney for specific legal advice.
