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Legal Update
When Can You Act on Sexual Harassment?
Brian Lapps
Publish Date: February 9, 2008

A surgical tech tells you that her supervisor made a few vague comments about her body, bragged that he's good in bed and asked her out several times. After she rejected his advances, she says the supervisor assigned her to work with the most demanding doctors and denied her requests for days off. What would you do?

Investigations into workplace sexual harassment rarely answer the ultimate question: Did it really happen? This can put you in an uncomfortable position. You can't always know the answer with absolute certainty, even when action is demanded.

Given this, what's your call?
Back to the case. The tech can't identify any potential eyewitnesses, just a co-worker with whom she'd discussed some of the supervisor's comments. The supervisor denies making any inappropriate comments or requests for dates. He counters that the tech's performance has been poor of late (he's documented as much), explains that she's one of the few techs that the doctors tolerate and admits denying days off because the center is short-staffed. The co-worker who was privy to secondhand reports of the supervisor's alleged conduct has chronic attendance problems, for which she's likely to be terminated.

Based on these facts, you'd probably warn, but not terminate, the supervisor. There's some doubt about who's telling the truth and about what actually happened, both of which now become critical issues. While the supervisor may be innocent, having been set up by disgruntled employees, it may very well be a case of "where there's smoke, there's fire."

The matter would become more complicated if this were the second time that someone had made uncorroborated allegations against the supervisor in the last two years. You'd then face two questions:

  • What is your facility's legal exposure in firing an employee over this matter without eyewitness testimony?
  • How much proof do you need to fire the alleged harasser?

Which lawsuit would you rather defend?
If you conclude, after a thorough investigation, that the alleged harasser is most likely "guilty as charged" and you terminate him, there's little chance that the fired employee will succeed in pursuing a wrongful discharge claim. Conversely, continuing to employ the accused harasser can often lead to expensive and difficult-to-defend sexual harassment lawsuits from the victim.

As a result, one method of analyzing such close calls is to answer the question, which lawsuit would you rather mount a defense for? The choices may be equally unpleasant, but most employers would opt to fight a wrongful termination action.

That's largely because employers have broad discretion to fire at-will employees. In most states, employers are free to fire workers for good reasons, bad reasons, no reason or even the wrong reason, so long as it's not for an illegal reason. Discharging an employee because his continued employment creates the risk of having to defend yourself against an expensive sexual harassment lawsuit (even one in which the accuser may be lying) isn't an illegal reason. It might be unfair to an innocent employee, but unless it's a pretext for discrimination, it's not illegal.

A fired employee may have a good defamation or intentional interference with employment claim against an accuser who makes false allegations of sexual harassment. But it's much less likely they'll be able to show that an employer who conducted a thorough investigation was using the allegations to hide discriminatory practices.

Burden of proof
How much evidence do you need to fire an alleged harasser? There's no definitive answer here. But employers rarely lose wrongful discharge cases if they can show that they conducted a thorough investigation and formed a reasonable, good-faith belief that the accused violated the facility's sexual harassment policy. That way, even if the accuser is lying, you can show that the discharge was based upon a legitimate reason — namely, the results of the investigation — and not discrimination against an employee's race, sex, age or other characteristic.

In the rare cases where a fired employee successfully sues an employer, it's usually due to the employer's failure to conduct a thorough investigation or establish a reasonable belief, or the employer's treating the accused differently than others who'd been found to have engaged in similar acts.

The steps for conducting an investigation that will withstand a wrongful discharge lawsuit — and which may help you to determine the truth behind the allegations — include the following:

  • interviewing the accused and the accuser(s);
  • documenting any interviews conducted;
  • discussing the issue with all relevant witnesses;
  • obtaining witness statements; and
  • being able to show that you had a sincere desire to get the truth.

If you undertake these basic actions and ensure that you haven't let other employees similarly violate anti-harassment policies without consequence, there's little risk of a fired harasser prevailing in a wrongful discharge lawsuit.