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Good-faith investigation of harassment cuts your liability risk — even if you were wrong

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in Discrimination and Harassment,HR Management,Human Resources

Employers sometimes try to avoid taking sides when they learn of possible sexual harassment out of fear that one of the employees involved will sue. Then the situation escalates, and they end up in court anyway.

The only realistic employer response: Be prepared to make tough decisions. Investigate the claim. Then, if you reasonably believe an employee was sexually harassed, punish the alleged harasser. Even if it turns out you were wrong, the punished employee won’t win the case—as long as you had a reasonable basis for your decision.

Recent case: Wayne Jackson was fired following an internal investigation into whether he had sexually harassed a co-worker. The woman claimed Jackson frequently asked to see her breasts and commented that her boyfriend must like “big boobs.”

Jackson sued, alleging he had really been fired because he was almost 70 years old. He said the sexual harassment charges were just a way to get rid of him. Jackson also claimed that the manager who decided to fire him had called him an “old, gray-haired fart.”

The 5th Circuit Court of Appeals said Jackson had no case. Employers that investigate sexual harassment complaints and conclude that harassment took place—after an investigation that was clearly thorough and impartial—can’t be sued, even if it later turns out they might have been wrong. What matters is that the termination decision was made in good faith. (Jackson v. Cal-Western Packaging, No. 09-20411, 5th Cir., 2010)

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