It can and does happen when an employee complains that she has been sexually harassed: In the course of the ensuing internal investigation, the alleged harasser says that, in fact, he was harassed—and the alleged victim was the real harasser.
What should you do? Chalk it up to a he said/she said situation and refuse to discipline either one? That’s probably not the best route to take—especially if you discover that the employee who originally complained is more credible and that others can back up her claims.
The person who was initially accused may try to sue, but he probably won’t get far, as the following case demonstrates.
Recent case: John Littlefield began working for Autotrader.com as an advertising consultant in Buffalo in August 2007. In early October, the company announced it was going to conduct a week-long sales promotion it called a “Sales Blitz.” The district sales manager put together sales teams from several locations and assigned Littlefield to work with Robin Long, who usually worked out of the company’s Virginia office.
After working with Littlefield for just two days, Long complained to the district sales manager. She said Littlefield made inappropriate comments, suggesting that she would get more sales for the team if she undid another button on her blouse. He also allegedly told her that she would make a “good stripper.”
Long claimed Littlefield made similar comments when they were on conference calls with other Autotrader.com salespeople.
The district sales manager confirmed that other employees had heard some of the comments and concluded that Littlefield should be fired. He forwarded Long’s complaint to HR, which conducted an independent investigation of the allegations and came to the same conclusion.
When Littlefield was terminated, he sued, claiming it was he who had been sexually harassed by Long. Essentially, he argued that it was sex discrimination to fire him while letting Long get away with alleged harassment.
The court wasted little time in dismissing the case. The judge said Littlefield hadn’t complained about harassment before he was accused and terminated. He had received a copy of Autotrader.com’s sexual harassment policy, which explained how to complain. The court said the company couldn’t be faulted for not punishing Long (even if it turned out Littlefield was telling the truth) because it had no way to know about the allegations. (Littlefield v. Autotrader.com, No. 09-CV-455, WD NY, 2011)
Final note: Courts naturally look askance at after-the-fact allegations like the one Littlefield made. They know a last-minute report of sexual harassment is often a ploy to deflect attention from the allegations facing the alleged harasser.
Remember, employers don’t have to be absolutely right when they punish an employee for breaking a rule—just fair and honest. Even if it turns out that the accused was innocent, courts usually won’t second-guess the employer’s decision.
In he said/she said cases, employers can and should exercise reasonable judgment about who is telling the truth. Certainly, in a case like this—with other employees backing up the accuser—there is little danger in firing the alleged harasser.
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