Sexual Harassment Investigations: How Good Is Good Enough?

When an employee reports an allegation of sexual harassment, that triggers a duty on the part of their employer to conduct a prompt and thorough investigation.

But how prompt is prompt enough – and how thorough does the employer have to be?

A new federal appeals court ruling backed an employer. It rejected an employee’s assertion that the employer didn’t do enough.

She was a senior manager

Emily Forsythe worked as a senior manager at Wayfair.

In August of 2019, she sent an email to a man who used to be her supervisor but had moved on within the organization.

In the email, Forsythe accused a co-worker of sexual harassment.

She said he touched her legs and shirt. She also said he talked about online dating. And he asked her about her dinner plans.

He also sometimes sent her “aggressive, critical emails,” she added.

The former boss sat on the email about the alleged sexual harassment for four or five days. Then he sent it to Wayfair’s HR department.

An HR employee investigated. He asked Forsythe if there were any direct witnesses, and she said there were not.

Sexual harassment is alleged

He also talked to another employee about the relationship between Forsythe and the alleged harasser. That person did not substantiate Forsythe’s allegations of sexual harassment.

At about the same time that she sent her email, Forsythe told a friend outside the organization what was going on. She did not volunteer that information in connection with Wayfair’s investigation, and Wayfair didn’t specifically ask her if there was anyone outside the company who could back her story.

In the end, the HR investigator told Forsythe that he was unable to substantiate her allegations. That happened about a month after Forsythe sent her email.

Forsythe said her direct supervisor then threatened to remove her from his team. In an email to HR, she accused the supervisor of retaliating against her. But the same person in HR again told her he was not able to substantiate her allegation.

Forsythe eventually resigned. She later sued Wayfair, alleging sexual harassment and retaliation under Title VII and Massachusetts law.

A lower court ruled against her, and she filed an appeal.

Employee appeals

On appeal, Forsythe insisted that Wayfair did not conduct an adequate investigation.

She said Wayfair dropped the ball by relying solely on the accused harasser’s denials to reach its conclusion that her allegations were not proven.

And she added that if HR had only asked her, she would have given Wayfair the name of her friend, who did not work there but could corroborate her allegations.

But the appeals court was not swayed.

Wayfair followed up on every lead Forsythe provided, the court said. And no meaningful lead emerged that Wayfair did not pursue, it added.

Moreover, there was nothing to indicate Wayfair would not have followed up on any other meaningful information Forsythe provided, the court said.

Forsythe asked for too much when she faulted Wayfair for not asking her if anyone outside of the organization could corroborate her story, the appeals court said. And there was nothing to show Wayfair prevented or discouraged her from volunteering that information, it added.

It may have been more prudent for Wayfair to ask that question, the court observed. But it wasn’t legally required to do so, it ruled. Wayfair’s investigation was good enough to avoid liability, it decided.

The appeals court affirmed the ruling in favor of Wayfair.

Lesson: If an employee alleges sexual harassment, conduct a prompt and thorough investigation.

Best practice: Ask the employee for all sources of information that could help their case, regardless of whether those sources are inside or outside the organization.

Forsythe v. Wayfair Inc., No. 21-1095, 2022 WL 592888 (1st Cir. 2/28/22).