If your organization is unionized and operates under a collective bargaining agreement that calls for, think twice before automatically firing an employee you believe has sexually harassed other employees.
Unless your contract specifies discharge for a first harassment offense, you may have to follow your progressive discipline program.
Recent case: Michael Baldwin was fired from his job as a fire inspector for sexually harassing co-workers. He filed a grievance through his union, claiming that the union’s collective bargaining agreement guaranteed him the right to progressive discipline.
An arbitrator agreed and the agency he worked for appealed, arguing that the arbitrator’s decision was contrary to public policy because sexual harassment is a serious matter.
The court refused to overturn the arbitrator’s decision to reinstate Baldwin and assign him to a different workplace. It reasoned that not all sexual harassment is equal and nothing in the law requires employers to automatically fire harassers. (San Jose v. International Association of Firefighters, No. H034726, Court of Appeal of California, 2010)
Final note: Employers that don’t operate under a union environment can and should make sure their disciplinary policies are strong enough to allow immediate discharge under egregious circumstances. Remember that, unlike a union contract (which is binding on both employer and employee), a properly drafted handbook isn’t a contract. Make sure your handbook disclaims any contractual obligation and that you retain the right to change the policy at any time, for any reason or no reason.
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- Document exact timing of decision to fire
- Ensure direct way to report discrimination to HR
- When RIF affects someone who complained, prepare to show your process was fair