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Good-Faith Process—But Not Absolutely Correct Conclusion—Is Enough to Fire Harasser

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in Discrimination and Harassment,Firing,HR Management,Human Resources

Investigating a sexual harassment complaint may sometimes feel like a no-win situation. On the one hand, you want to take prompt action to stop any harassment so the harassed employee doesn’t sue and can’t claim you ignored her pleas for help.

On the other hand, you don’t want to terminate the alleged harasser if the charges may be exaggerated or even false. That might launch a wrongful-termination lawsuit.

Here’s some good news: You won’t land in legal hot water if you conduct a thorough and fair investigation—even if you reach the wrong conclusion. What matters is that you take the charge seriously, investigate and come to a reasonable conclusion based on the findings.

Recent case: JetBlue fired Daniel Duviella, who is black, from his job after another employee complained that he had sexually harassed her. The woman complained immediately following the alleged incident, and JetBlue suspended Duviella pending an investigation.

JetBlue sent an investigator, who interviewed Duviella, the woman and one of Duviella’s co-workers. The co-worker couldn’t substantiate the allegation against Duviella, who was accused of grabbing the woman’s buttocks and preventing her from leaving an office.

However, the investigation also uncovered another incident. A different woman said Duviella had stood in front of her and put his hands down his pants while declaring, “You want to see, you want to see.” A witness corroborated that allegation and HR decided to terminate Duviella.

He sued, alleging two things. First, he said both allegations were false; that co-workers trying to get him fired had trumped up the charges. Second, he said a white employee who allegedly touched a female co-worker in another incident hadn’t been fired.

The court threw out Duviella’s case. It said JetBlue had conducted a fair investigation and came to a reasonable conclusion. It didn’t matter whether that conclusion was wrong—just that it was made in good faith. It also said the white employee had merely touched a co-worker’s shoulders, not offered to show her his physical attributes. That made the cases very different. (Duviella v. JetBlue Airways, No. 04-CV-5063, ED NY, 2008)

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