Indeed the remarks of current Los Angeles Clippers basketball team owner Donald Sterling sent our nation into a tail spin this week, reminding us that racism still is alive and well and that we have a lot of work to do to rid our country of its ugly head. Beyond the moral and social implications, Sterling’s comments have raised many legal questions, including in the area of workplace and employment law.
An Employer’s Duty to Investigate Claims of Discrimination & Harassment
As the owner of the Los Angeles Clippers, Sterling is deemed an employer under the law. Both federal and state law prohibit employers from discriminating against their employees on the basis of race, sex, gender, disability, religion, age, sexual orientation and other factors. In an instance such as this where an employer is alleged to have engaged in conduct of a discriminatory nature against an employee or is alleged to have created a hostile work environment, the employer has a duty to conduct an immediate, good faith and thorough investigation of the alleged misconduct and to take remedial action against the alleged perpetrator, depending on the outcome of the investigation.
In this instance, because Sterling is the alleged perpetrator and his ownership of the Los Angeles Clippers is licensed through the NBA organization, upon receiving notice of Sterling’s alleged misconduct and racist remarks, the NBA had a duty to conduct an immediate investigation of his conduct and if it found a violation of any of its policies or practices, to take appropriate remedial action.
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The NBA conducted perhaps one of the swiftest investigations in history – conducting the investigation in just three days. Presumably, although short, the investigation was thorough and was conducted in good faith. Based on its belief that Sterling violated NBA policies and practices against discrimination, the NBA took what it deemed to be appropriate remedial action by banning Sterling from the NBA and any interaction with the Los Angeles Clippers for life; fining him $2.5 Million, the largest fine in NBA history; and beginning the process of forcing him to sell the team.
What if the NBA Later Learns That its Investigation Was Faulty?
Let’s say the NBA later learns that for some reason, its investigation was faulty or that it did not base its decisions related to Sterling on proper information or evidence? The law states that as long as the organization conducted the investigation in “good faith” – meaning based on a reasonable belief that the information alleged is true or has reason to be true based on the facts and evidence gathered – that the NBA’s actions in conducting the investigation are protected under the law.
What Makes A Good Workplace Investigation?
In most instances, a good workplace investigation requires the following:
- Impartiality and confidentiality
- A neutral investigator
- An interview with the victim
- An interview with the alleged perpetrator or accused
- An interview with any witnesses to the alleged incident
- The gathering and review of all documentary and other evidence that provide information and insights to the allegations
- A review of the relevant and underlying policies and practices of the employer or organization
- The weighing and assessment of all facts, evidence and information gathered as a part of the investigation, including making credibility assessments of the victim, the alleged perpetrator and all witnesses, to determine if there has been a violation of employment law policies or practice
- If it is determined that any policy or practice has been violated, the employer or organization must determine what type of disciplinary or remedial action to take, if any
- Notification to the victim and the alleged perpetrator/accused of the outcome of the investigation
Certainly, the NBA took the matter with Sterling seriously because of its high profile nature and the potential impact their failure to act may have had on organization as a whole (as evidenced by the withdrawal of several well-known corporate advertisers). However, the NBA also responded based on its duty to investigate under both federal and state law. Had the NBA failed to take swift and immediate action, the consequences to the League may have been greater, not only from a moral, social and business perspective, but also from a legal perspective.