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OK to punish complainer if you find wrongdoing

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in Compensation and Benefits,Discrimination and Harassment,Human Resources

When you receive a sexual harassment complaint, begin investigating immediately. That’s the essential first step your organization must take to defend against a harassment lawsuit.

However, investigations sometimes open a can of worms. What if, for example, you find out that the complaining employee engaged in wrongdoing, too?

Even if the wrongdoing is related to the underlying sexual harassment complaint, you can and should punish the employee for that wrongdoing.

Recent case:
Kimberly Simms worked for a trucking company as a tracking supervisor. She assigned routes to company drivers and independent contractors hired to make deliveries. The company’s handbook prohibited employees from accepting gifts or gratuities from anyone outside the company.

After Simms’ husband was hurt in a car accident, she started having financial problems. One of the independent drivers with whom Simms was friendly offered to help out. She first refused, but eventually she accepted a $2,500 loan from him.

Apparently, that loan had strings attached—Simms began getting text and phone messages inviting her to engage in a sexual relationship. When she demurred, the texts and phone messages got threatening and sexually explicit. Simms finally reported her problem to the company.

Her employer investigated and terminated the independent contractor. Then, after learning about the loan, it demanded Simms resign for violating the ethics policy.

She did—and then sued, alleging that employees shouldn’t be fired for anything discovered during an investigation they initiated.

The court said that’s not the case. Asking for an investigation doesn’t make the employee immune from anything discovered during that investigation. Simms’ case was dismissed. (Simms v. Trimac Transportation, No. 08-2694, ED PA, 2009)

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