When should a business consider terminating an employee accused of sexual harassment?On December 20, 2017 by Schnader in Labor and Employment
By Jo Bennett
Repeated reports of sexual misconduct by high-profile men have put sexual harassment issues in the public eye. New allegations seem to be surfacing daily. Some of the accused have admitted to their conduct, some have admitted to some but not all of the conduct, and some have denied they did anything wrong. Companies that employ these men, however, have had a fairly consistent response – they have fired the accused harassers.
Under the federal law of workplace sexual harassment, an employer is obligated to take steps to prevent harassment in the first instance and to take action if an employee makes an internal complaint that she has been the target of harassment by a male employee. Federal courts have held that an employer taking these steps may avoid legal liability altogether if it is sued for sexual harassment – even if it does not terminate the harasser.
A court’s analysis of a sexual harassment claim typically does not focus on whether the employer terminated the alleged harasser. The legal analysis focuses on the position of the alleged harasser and whether the complaining employee suffered an “adverse employment action” by a harassing supervisor. Such adverse actions against the employee include termination, demotion, reassignment, or a decrease in pay.
Sexual harassment cases fall into three categories. First, where a harassing supervisor actually imposes an adverse action on the employee he targeted for harassment, an employer is automatically liable for sexual harassment under Title VII of the Civil Rights Act of 1964, the federal statute that prohibits sex discrimination in the workplace. Second, if the supervisor has not imposed a tangible action, an employer may escape legal liability altogether for sexual harassment if the employer has made efforts to prevent and correct harassment and the complaining employee has not taken advantage of the employer’s policy to prevent such harassment. Third, if the harasser is a co-worker, the employer similarly must take prompt and corrective action to stop the harassment. Under the court rulings, an employer’s action does not necessarily require that it fire the harasser to avoid liability.
But as the current stream of high-profile cases suggest – and as women have spoken out on social media about the behavior of men in Hollywood, the media and politics – companies are now ridding themselves of employees whose behavior has created both financial and reputational harm to the business. Many observers expect an increase of cases against men in more traditional industries.
Will companies – must companies – terminate the accused harasser? While, generally speaking, it is not illegal to terminate someone accused of harassment, termination is not required under the law. Companies may be tempted to impose a policy of zero tolerance for sexual harassment, firing anyone accused of any misconduct. Business leaders should consider whether termination in all cases could ultimately create unintended consequences within their workplace, possibly making female employees hesitant to complain, and thus limiting reports of inappropriate behavior. Different penalties and punishments may be needed as part of a comprehensive plan for responding to incidents of harassment.
The goal for all businesses should be to eliminate harassment. Establishing policies and practices to communicate the importance of this concern throughout the company should be a priority, including regular training at all levels about the impact of misconduct and the processes used for handling complaints. When a complaint occurs, a crucial first step involves quickly and effectively responding to the employee subject to harassment, investigating the complaint, and assessing the evidence. If the complaint is credible and the behavior alleged is egregious, termination is appropriate. But in instances where the alleged behavior is less than egregious, termination may not always be necessary or the most suitable penalty. Employers should consider the particular circumstances of each case and the overall long-term objective for preventing and ending sexual harassment in the business.
This is a very challenging issue for employers. Sexual harassment should never be ignored or shrugged off in the workplace. On the other hand, termination of every employee accused of any harassment is not required by the law and may not always be the best approach. Businesses should establish thorough and rigorous systems for preventing sexual harassment and responding to complaints, which is legally mandated. By openly and proactively managing these issues, employers can ensure a safe and professional workplace for everyone.