Sexual harassment and the Rights of the Accused
By Neil E. Klingshirn
Sexual harassment and the Rights of the Accused
Federal and state laws protect employees from harassment because of sex in the workplace. As a result, almost all employers today have policies that
- prohibit sexual harassment
- encourage employees to complain about sexual harassment;
- provide for prompt investigations into sexual harassment complaints; and
- require appropriate corrective action for violations of the sexual harassment policy.
In many cases, corrective action means immediate termination of the accused.
What happens if the accusation is false?
Employers can take no corrective action against the accused and can even discipline the complainant for a false complaint. However, the employer runs the risk that, if the accusation was true, the victim of the harassment can take it to court. Thus, employers often take no chances. They opt for firing the accused, who has limited rights under federal and state laws to challenge their termination.
Do the Wrongfully Accused have Any Rights?
Not directly. An employer is free to terminate an employee for no reason or even a bad reason, so long as it is not a reason prohibited by law. Discharging an employee based on a suspicion of improper behavior is not unlawful, even if the suspicion is not correct. Thus, the law does not prohibit an employer from taking the easy way out of a difficult situation by terminating the accused.
However, if the real reason for the discharge is unlawful, covering up the real reason with a false accusation of harassment can lead to employer liability.
When will an employer become liable for a false accusation of harassment?
A case in Wisconsin illustrates what can happen when an employer discharges a falsely accused employee for the wrong reasons. In the case of Mackenzie v. Miller Brewing Company:
- A male manager told a female co-worker about a racy Seinfeld episode. In the story Jerry forgot the name of his date. Her named rhymed with a female body part. He eventually remembered that his date’s name was Dolores.
- The female co-worker “didn’t get it,” so the male showed her the body part in an anatomically correct dictionary. She later complained to his supervisor that she was offended. He apologized. Company attorneys questioned him and the company fired him two hours later.
- At trial, the jury (10 women, 2 men) did not believe that the female co-worker was actually offended by the Seinfeld discussion. Instead, the jury found that she had made similar and more graphic references at work; and
- She had learned that she would soon report to him and did not want to do that. Moreover, the supervisor that she convinced to fire McKenzie had earlier intentionally interfered with McKenzie’s ability to obtain a promotion by telling upper management that he was not suitable for promotion, then lied to McKenzie about it.
The jury based its award on some unique features of Wisconsin law and the facts of this particular case. However, the resulting large verdict received significant media coverage. As a result, careful employers believe that they should respect the rights of the accused.
What should careful employers do to respect the rights of the accused?
First, someone accused of workplace misbehavior has the same rights as anyone else to be free from discrimination. An employer thus cannot punish the accused more harshly than someone outside of the accused’s protected class. In other words, if the accused is a 50-year-old manager and the owner has condoned the same or similar behavior by a younger member of management, the owner runs the risk of an age discrimination suit if it treat the 50-year-old manager more harshly.
Second, conduct a thorough investigation. An employer should not conduct a “Kangaroo Court” unless it wants a jury second guessing what the employer might have found if it had looked at all of the facts.
Third, an employer should act on a good-faith belief that the allegations are true before taking adverse employment action. If the employer does not believe that the accusation is true, a jury probably will not believe it either. Since a jury can base a finding of discrimination or retaliation on proof that an employer’s stated reason for termination is false, a false accusation can lead to discrimination or retaliation liability.
Fourth, an employer may not defame an employee. Although employers generally have a defense against defamation suits for disclosing an employee’s performance related information, the employer can lose that defense by maliciously publishing false information or by disclosing the false information to people who do not “need to know” the results of the investigation.
Fifth, an employer cannot conduct a criminal background check using an outside agency without an employee’s prior consent to the background check. Similarly, an employer cannot take action on a background check by by an outside agency before it notifies the employee of the result of the investigation. The right to consent to an investigation and to see the results of the investigation do not, however, apply to investigations conducted in-house by the employer or its attorney.
What should I do if I am wrongfully accused of harassment?
We suggest that you:
- Hire experienced employment counsel.
- Insist on a thorough, unbiased investigation.
- Object strenuously to witch hunts;
- Ask to see evidence or other support for a “good faith belief” that you engaged in sexual harassment or other inappropriate conduct;
- Obtain assurances that the investigation into the allegations are disclosed only on a “need to know” basis;
- Question whether the punishment, if any, is evenly applied.
What’s the bottom line? Will the laws protect me against a wrongful accusation?
Not always. At best, most safeguards against wrongful accusation are procedural or offer little actual protection.
However, if you are accused of sexual harassment, know your rights. Fortney Klingshirn has successfully represented hundreds of Cleveland, Akron and Northeast Ohio individuals and employers in sexual harassment and other employment matters. Contact us to see if we can help you.