The Rights of the Alleged Harasser
In the second installment of this four-part series from Vedder Price’s Amy Bess and Sadina Montani, the authors discuss the balance employers must strike when investigating sexual misconduct: the company must act swiftly, but not hastily. Both parties have rights to consider, and a misstep in handling the allegation can expose the company to potential litigation from the alleged harasser.
with co-author Sadina Montani
In recent months, it seems not a week goes by without news of another high-profile alleged harasser fired or forced to resign almost immediately after allegations of workplace harassment become public. What usually is not apparent, of course, is whether such allegations were carefully investigated and corroborated behind closed doors prior to the public revelations. Regardless, the swift, public fall of high-profile figures – while certainly dramatic and newsworthy – should not serve as a playbook for how to treat all employees accused of sexual harassment in the workplace.
In the current climate, employers may be tempted to punish or fire an employee immediately after a credible allegation of sexual harassment is made. And increasingly, accusers (and their supporters) are demanding immediate action against the accused – including termination – often making their demands public via social media.
The Alleged Harasser’s Rights
As an initial matter, employers should revisit their policies and procedures for conducting investigations of workplace misconduct. Our prior article included advice regarding best practices for conducting an investigation into allegations of workplace harassment. Additionally, in advance of an allegation of sexual harassment, HR professionals and senior leaders should consider what, if any, requirements regarding investigative procedures have been established through internal policies.
As employees, both the accused and the accuser potentially could bring employment claims against an employer based on its mishandling of a complaint of sexual harassment. While the average at-will employee is not entitled to have any particular investigatory steps followed, or even to “due process” during the investigation, an employee accused of sexual harassment should be treated in the same manner as an employee accused of any other workplace misconduct.
To start, to the extent an employer has policies guaranteeing certain rights to its employees (both the accused and the accuser) throughout an investigative process, those policies need to be followed to the letter – even when considering salacious, potentially damaging allegations of sexual harassment. Indeed, some courts have acknowledged that an employee may have a cause of action for negligent investigation where the employer has failed to follow its own investigatory policies.
Further, employers should keep in mind that if an employee accused of harassment (or, indeed, any wrongdoing) is placed on an unpaid leave of absence while an investigation is pending, this likely would be considered an adverse employment action and could give rise to a cause of action by the accused employee.
Additionally, confidentiality is paramount when investigating claims of sexual harassment. Only those within an organization with a legitimate business “need to know” should be notified of the allegations or be privy to the investigative mechanisms at work. Confidentiality may be challenging to maintain if the accuser has shared the allegations with other employees or has posted details on social media, but employers must be wary of communicating such allegations. In the worst instance, if the allegations are demonstrably false and the employer has disclosed the false allegations carelessly, a defamation lawsuit could follow.
If the employee accused of sexual harassment is a high-level executive with an employment contract, the analysis may be even more complicated. Indeed, most executive employment agreements contain termination provisions that entitle the executive to severance benefits if his or her employment is involuntarily terminated for any reason other than those meeting the contract’s definition of “cause.” Thus, even in light of substantiated allegations of sexual harassment, an employer still may be required to provide a substantial severance package to the alleged harasser upon termination if the “cause” definition has been crafted so narrowly that a confirmed violation of the sexual harassment policy does not qualify. And ignoring such contractual obligations exposes the employer to significant risk of a legal claim by the terminated harasser.
To ensure consistent treatment, employers should carefully and thoughtfully consider the appropriate remedial steps in response to substantiated harassment allegations. In many cases, the accuser may demand that the accused be terminated. Period. End of story. But as an employer, it is your job to determine the appropriate discipline to issue for violations of workplace policies, based on (among other factors) the findings of the investigation, the severity of the conduct, whether the harasser is a repeat offender and how you have dealt with similar situations involving other employees in the past. There are a panoply of disciplinary options available to employers when an employee is found to have violated workplace harassment policies, including issuing written discipline, requiring personalized sexual harassment training or executive coaching, demoting the employee to a lower-level position, denying the employee the right to a transfer or promotion for a designated period of time or, of course, termination.
While termination is always an option to consider, it could give rise to an adverse treatment claim if the employee can show that other employees (of different genders, races or ethnicities, for example) were not terminated despite committing the same offense or worse. Employers also run the risk of defamation or tortious interference claims by terminated employees if not careful in the treatment of investigative findings or if the accused employee’s ability to obtain alternative employment is impeded.
Ultimately, employers must balance competing risks when considering complaints of sexual harassment. On the one hand, there are obvious risks associated with a failure to seriously and promptly address allegations of sexual harassment. But additional risks may arise if an employer acts too hastily by prematurely terminating an accused employee without following proper investigative procedures and taking the time necessary to reach the right outcome.