When you have to fire a protected-class employee for sexual harassment, there’s always the fear that he will turn around and sue for discrimination.
But remember: Credibility plays a part in deciding what happened in cases of alleged harassment. If a respected and trusted employee made the harassment accusation, the fired worker will have a hard time winning a lawsuit. That’s because courts don’t like to second-guess employers that look like they acted responsibly and honestly.
Recent case: A co-worker alleged that Kelly Gibson was sexually harassing her by surreptitiously obtaining her number and then constantly calling her on her cell phone to ask her out. He earned a sharply worded warning that his behavior violated the company’s sexual harassment policy. Gibson was informed he could be fired if the behavior didn’t stop.
He did quit pestering the co-worker—but promptly chose a new target for his advances. This time, he began asking out an HR specialist, inquiring if she “had ever been with a black man” and calling her when she told him not to.fired him after concluding the HR specialist was a credible and trusted employee.
Gibson sued, alleging race discrimination.
But the court said it could find nothing wrong with the way the employer handled the sexual harassment complaints, and that it was entitled to believe its HR specialist. It threw out Gibson’s case. (Gibson v. Ohio Module Manufacturing, No. 3:08-CV-2847, ND OH, 2010)
Final note: You are free to decide what to include in your sexual harassment policy, including banning repeated and unwanted date requests and calls. While some employees may think that there is no harm in asking a co-worker out by calling a few times (and not accepting “no” for an answer), that doesn’t mean employers can’t prohibit such behavior.