Last month we looked at the serious problem of sexual harassment in the workplace, and how it has been brought to the forefront in recent months by the allegations against Harvey Weinstein and numerous other high-profile individuals. The #MeToo social media movement sparked by these scandals, and the awareness they have created in the public mind, have shown little sign of abating. Open any newspaper, or click on any news website, and you’re almost certain to find a current article about yet another celebrity, politician or business leader accused of sexual harassment. With all that’s going on, it’s important to keep in mind that just because someone has been accused of sexual harassment does not necessarily mean they actually engaged in sexual harassment. An unfortunate byproduct of the #MeToo movement is that it has created an atmosphere in which just about any sexual harassment allegation can take root and flourish, regardless of its merits.
Just because someone has been accused of making an off-color joke or comment does not mean that sexual harassment has occurred. While a single comment can, if severe enough, constitute sexual harassment, as a general matter isolated remarks do not suffice. That’s not to say isolated remarks that are sexual and/or harassing in nature are acceptable and need not be addressed. To the contrary, such conduct can be poisonous to the workplace and, if not promptly dealt with, lead to more severe or repeated harassment. Thus, every incident should result in a warning that the conduct at issue is contrary to company policy, and all such warnings should be memorialized in writing and placed in the offending employee’s personnel file.
As for accusations of more pervasive conduct (“Andre has been making comments about my body every day for the past month”), as we mentioned last month, employers who react to sexual harassment complaints by summarily firing an accused employee without properly investigating can find themselves in just as much trouble as those who ignore them. It is important to keep in mind that accusations are just that: accusations and nothing more. Accusations are not always true, and people sometimes have an ulterior motive for making accusations that turn out to be false. It’s not out of the question that some of the Hollywood celebrities whose names have recently been in the news are being falsely accused of sexual harassment by former employees or lovers interested in making a quick buck or getting revenge. In the employment context, an employee might falsely accuse a co-worker of sexual harassment for any of a variety of reasons. The employee may be after money from the company. She might be trying to get her supervisor fired for having given her a poor performance evaluation. Perhaps she was passed over for a promotion in favor of a more qualified male co-worker whom she’d like out of the picture. The employee may have been having an affair with a co-worker, and now that he’s dumped her she’d like to get back at him. There are countless reasons why an employee might falsely accuse a co-worker of wrongdoing.
For these reasons, it’s important to treat any employee accused of sexual harassment fairly. This doesn’t mean giving him the benefit of the doubt, but it also doesn’t mean firing him on the spot either. Instead, you should conduct a prompt and thorough investigation, remaining as objective and neutral throughout the process as possible until such time as the investigation has been completed. We went over the procedures for properly investigating suspected or reported harassment last month. In brief, both the accuser and accused need to be separately interviewed, with careful notes taken of each such conversation, including details regarding what occurred, who witnessed the conduct, what was said, what was done, etc. Witnesses should be interviewed as well, and all available evidence should be gathered and preserved.
Once the information and evidence has been gathered, a determination must be made as to whether sexual harassment occurred. This is typically done with the assistance of other management personnel and/or with counsel. The decision should be based strictly upon whether or not sexual harassment is believed to have occurred, and not based upon any other reasons or factors, particularly if the accused is a member of a protected class. Suppose for example Andre, an African American male, has been accused of sexually harassing Sue each morning for the past month. After thoroughly investigating the matter, you learn from other employees that nobody saw any harassment, and that Sue and Andre simply don’t get along. Nevertheless, you decide to use Sue’s complaint as a reason to terminate Andre because he was late to work a few times, and because you believe you think Sue is litigious. Smart strategy? Not at all. You’ve just traded Sue’s losing sexual harassment lawsuit (in which she’d have no evidence or witnesses to back up her harassment claims) for Andre’s possible race discrimination lawsuit; one in which your stated reason for termination is unsupported by your own investigation and witnesses, raising the presumption that Andre’s race was the real reason for his discharge.
Does this mean you always have to be correct when you fire an employee who has been accused of sexual harassment? No, it’s not against the law to be wrong, however if you don’t investigate, do a sloppy investigation, or terminate in the face of evidence that the accusations are untrue, you open the door to the former employee possibly bringing a discrimination claim against the company based upon race, or age, or some other protected category. Another downside to not properly investigating is that you may be rewarding an employee who has lied about being harassed for purposes of advancing her own objectives, and improperly punishing an innocent employee who did nothing of the sort. Even if the accusing employee hasn’t lied – perhaps she has exaggerated or misinterpreted a remark as harassment – a rush to judgment may result in the termination of an employee in which your company has made a significant investment.
In conclusion, given all the recent focus on sexual harassment, now more than ever it’s important that all employers have effective policies and procedures in place, inclusive of procedures for investigating any suspected or reported harassment. As is discussed above, all such investigations should be done in a thorough, fair and impartial manner. That includes thoroughly interviewing the accused, the accuser and witnesses, documenting all such conversations in writing, gathering all available evidence, and above all treating the accused as innocent until proven guilty. Sexual harassment is a terrible thing, but so too is accusing someone of having engaged in it knowing that they didn’t, and taking someone’s job away based upon false accusations.