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Employers sometimes assume they have to harshly punish every incident that violates their sexual harassment policies—which often means termination. That isn’t necessarily so.

You can differentiate between various kinds of conduct that fit your definition of harassment, but clearly aren’t equally severe. For example, it’s legitimate to mete out severe punishment for harassment involving physical coercion, while setting some lesser sanction in the case of a consensual romance.

Recent case: Samir Moussa, who is of Egyptian origin, worked as a physician for a state agency. When a co-worker accused him of trying to kiss her against her will, the agency suspended Moussa, pending an investigation.

Management interviewed two other women who also claimed he had sexually harassed them. One said Moussa had grabbed her and kissed her on the lips. The other said the assault against her had gone further. She said Moussa had once “slammed her against the wall,” and “had his tongue down her throat while attempting to remove her clothing.” She said the incident left her bruised. Management believed the women and fired Moussa.

He sued, alleging the agency hadn’t fired two white men who had also harassed women. But the agency pointed out that one of those men had been cleared of the accusations against him following exhaustive interviews with witnesses.

The other man was demoted after an investigation found he had engaged in a consensual relationship with a subordinate. The court said the agency was free to punish that employee less severely because he hadn’t used force. Moussa had—plus he was accused in three separate incidents, not just one. (Moussa v. PA Department of Public Welfare, No. 10-2261, 3rd Cir., 2011)

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