An employer that knows an applicant has been accused of sexual harassment or abuse can use that as grounds for refusing to hire. That’s true even if the applicant was never found criminally guilty or lost a lawsuit based on the allegations.
Simply put, employers may be liable for any subsequent sexual harassment or assault if they hire the applicant, so avoiding that possibility is a good, legal business decision.
Recent case: Joelle Ogletree worked as a French and English high school teacher until she was terminated for allegedly engaging in sexual conduct with male students. Ultimately, she was not criminally convicted.
Ogletree then sued the district, alleging that she had been discriminated against because of her sex. She lost. Then she applied for an open position with the same district, having managed to hang on to her teaching license.
She was rejected; the stated reason was the past allegation of sexual abuse.
She sued again, alleging that the most recent rejection was retaliation for her earlier lawsuit. Plus, she said a male teacher was rehired even though he had been accused of hitting a student.
The 5th Circuit Court of Appeals dismissed her case. It reasoned that she was not hired because the district risked being liable if another student alleged sexual assault.
The court also pointed out that the male teacher wasn’t similarly situated. Corporal punishment is legal in schools in Texas, but teacher/student sexual conduct is not. (Ogletree v. Glen Rose Independent School District, No. 11-50170, 5th Cir., 2011)
Final note: Of course, if you refuse to hire sex offenders, make sure you apply that policy evenhandedly. Otherwise, an applicant could argue that another applicant outside his protected class received more favorable treatment.
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