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When harassment escalates despite warnings and second chances, it’s time to terminate

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in Discrimination and Harassment

If a claim of sexual harassment comes down to nothing more than one employee’s word against another’s, it can be difficult to decide to fire the alleged harasser.

It can be even harder if you know the accused harasser is involved in litigation against the company. He may claim that the charges against him are merely a pretext to punish him for participating in so-called protected activity.

When faced with the decision, some employers choose to give the accused a second chance, perhaps by transferring him to another location.

But what if it happens again? Then it’s time to act, especially if the employee has gotten bolder.

With good records showing you investigated the claims, you will probably be able to persuade a court that your decision to terminate was unrelated to any protected activity.

Recent case: Basil Jennings, who is black, worked for a Walgreens drug store. At the time, another black employee had filed a class-action discrimi­nation lawsuit against the company in which Jennings chose to participate.

In January 2007, a woman who worked with Jennings reported to man­agement that she believed Jenn­ings was sexually harassing her. The company interviewed the woman, who said Jennings frequently “checked her out” and told her that she was the “devil” because she was so attractive.

Jennings denied the allegations and Walgreens decided a transfer was the best solution. It also gave Jennings a written warning.

By late September, two women working at the new store complained to their manager that Jennings was leering at them, too. One said he had asked her if she worked out and requested a “private session on the beach.” Jennings denied the allegations, explaining that there was nobody working at the store “worthy of going to the beach with.” He added that the woman must be lying and trying to get back at him because he had inspected their bags for stolen store merchandise.

This time, Jennings was suspended and then transferred to another store. By spring, another female co-worker claimed Jennings locked her in his car when he gave her a ride and tried to kiss her.

Jennings was then terminated—on the same day he received a settlement check for his participation in the class-action lawsuit. Jennings sued, alleging he had really been fired for being involved in the lawsuit.

But the court said Walgreens had shown it had legitimate reasons to fire him—namely conduct that escalated into full-blown sexual harassment despite several opportunities for a fresh start. (Jennings v. Walgreen Company, No. 10-61134, SD FL, 2011)

Final note: The drug store chain got lucky in this case. Had Jennings raped or seriously harmed the co-worker at his third store assignment, it is unlikely the court would go easy on it if she sued. The company probably should have terminated Jennings after the second set of women came forward with similar allegations.

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