The Rights of the Accused in a Sexual Harassment Investigation

By Neil Klingshirn


Balancing the rights of the accused in a Sexual Harassment Investigation

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.

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What happens if the accusation is false?

The employer has an obligation to investigate harassment claims and make the best conclusions that it can about who is telling the truth. Unless the accused admits the harassment or the complainant confesses that the complaint was false, the employer almost always has to choose between two or more competing versions of the truth. 

Employers can credit the story told by 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 the employer to court. On the other hand, if the employer credits the story of the accuser, the employer runs little risk that the accused will be able to sue it.  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.

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Does this mean that the Accused do not have Any Rights?

Not exactly. If the accused is an employee at-will, his or her employer is free to terminate him or her for no reason or even a bad reason, so long as it is not a reason prohibited by law. Discharging an employee based on an accusation of sexual harassment is not unlawful, even if the accusation is not correct. Thus, the safe path for the employer is to credit the accuser and not the accused. 

However, if the real reason for discharging the accused is unlawful, covering up the real reason with a false accusation of harassment can lead to employer liability.

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What can Employers do to Treat Employees Accused of Harassment Fairly?

First, do not discriminate against the accused based on his or her protected class status. An accusation of harassment is not a license for unlawful discrimination.

Second, conduct a thorough investigation.  An employer should question the complainant, the accused and those persons who have direct, tangible knowledge of the accusations or defense.

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, do not publish false information or disclose a false accusation to people who do not "need to know" the results of the investigation.

Fifth, do not conduct a criminal background check using an outside agency without an employee's prior consent to the background check.

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What should I do if I cannot tell who is telling the Truth?

The law requires employers to take appropriate, remedial action. If the truth of the accusation is in serious doubt, then the employer can justifiably refrain from taking the harshest possible response. Even so, if the accused is a target of serious but unsubstantiated allegations of unlawful conduct, the accused should be counseled nonetheless that such accusations can lead to discharge and that future allegations will be seriously investigated.

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Michael Fortney Neil Klingshirn Joseph Spoonster
Michael Fortney
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