HR Specialist: New York Employment Law

Employee interpretations of state laws are leading to sky-high numbers of lawsuits in the Empire State. Aggressive attorneys don’t stop with federal laws like FMLA, ADA and FLSA: they use state and local living-wage statutes, rural codes, plus discrimination and other laws to sue employers for sky’s-the-limit damages. This New York-specific newsletter arrives monthly to help sue-proof every aspect of HR. Written in plain English, it’s your insurance policy for staying in step with current interpretations of state and local laws – and staying out of court. Learn more about HR Specialist: New York Employment Law and the free report you’ll get when you subscribe...

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 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)