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Document investigation to thwart harasser’s suit

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in Discrimination and Harassment,Firing,Human Resources

Sometimes, employers conducting harassment investigations find themselves in no-win situations, especially when there are conflicting claims and classic “he said, she said” scenarios.

On one hand, you know you must act fast to investigate and stop any sexual harassment. On the other hand, you risk a lawsuit if you fire the alleged harasser, most likely alleging some other illegal reason for your decision to terminate.

The way to win these cases: Thoroughly document the investigation.

That means getting all the details in writing. Make sure witnesses give you statements about what they heard or saw. Clearly document how you reached the conclusion that the alleged harasser did what his accusers said he did.

If the harasser sues you, having all those records at hand could save the day in court. You will be able to use the material to show you acted responsibly—and that the reason you fired the harasser was genuine and not a pretext for some other form of discrimination.

Recent case: George Rowe worked for a Golden Corral restaurant as a server. When two of his fellow servers claimed Rowe was sexually harassing them, the company interviewed the women and a witness. The female servers provided written statements, as did the witness. The company concluded Rowe was guilty of sexual harassment and fired him.

When Rowe sued, he said he was fired for complaining. He told the court his supervisors had given more-lucrative tables and better schedules to the women.

But the 2nd Circuit Court of Appeals, reviewing the restaurant’s thorough investigation, said Rowe had no case. It reasoned that the employer had a solid, well-documented reason for firing him. (Rowe v. Hagdamba, No. 07-3106, 2nd Cir., 2008)

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