If you have ever been tempted to fire an alleged harasser just because you suspected the alleged victim might sue, consider this: The 2nd Circuit Court of Appeals, which covers New York employers, has concluded that fear of being sued is no excuse for firing a suspected harasser without investigating.
In fact, if your fear is based in part on a stereotypical belief that a male employee accused of sexual harassment is probably guilty, that could constitute sex discrimination—and he could be the one who winds up suing.
That’s why you should carefully investigate every sexual harassment complaint and reach a conclusion. Base your conclusion on what you discover during your investigation, not stereotypical beliefs about who’s probably telling the truth and who isn’t.
Recent case: Carl Sassaman was pressured to resign from his job after a co-worker claimed he sexually propositioned and harassed her. When Sassaman’s boss confronted him, Sassaman denied the claims but admitted he might have sent the woman a note of a nonsexual nature. He also told his boss the woman had solicited him for sex and not the other way around.
The boss asked Sassaman to resign, adding, “You probably did what [she] said you did because you’re male.” No investigation took place, and the boss admitted he was afraid the woman would sue if he didn’t fire Sassaman.
But it was Sassaman who sued, alleging sex discrimination. He argued that he had been stereotyped as a probable harasser and that an investigation would have revealed he was innocent.
The court said fear of a lawsuit isn’t an excuse to shortcut an investigation and punish the alleged harasser. Sassaman’s lawsuit now moves forward. (Sassaman v. Gamache, et al., No. 07-2721, 2nd Cir., 2009)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Probe all complaints; even positive review can trigger retaliation claim
- If you need to discipline, verify facts with several sources
- Track HR decisions to show discipline wasn't harassment
- Beware! Courts giving more leeway to employees who act as their own attorneys