After the Sexual Harassment Investigation, Discipline?

30 Jan After the Sexual Harassment Investigation, Discipline?

The subject of disciplinary action for an employee who engaged in sexually harassing behavior is not a clean cut a problem as many people would think. Sure, many employers would love to just fire someone. But the issue may not be as easy as that. This post will discuss some of the considerations involved in making decisions about the discipline of employees, but doesn’t make a single recommendation because each case must be decided and disciplined based on the facts of that particular case.

This post assumes three things:

1. The the harassment was one of a hostile workplace type of claim. A quid pro quo claim, that is demanding sexual favor in return for positive work place outcomes, if more likely than not to have occurred, is much easier to discipline. A hostile work place type of claim is subject to many more gray areas.
2. The harassing behavior has been fully investigated and the investigator has determined that is more likely than not that harassment has occurred.
3. The harasser has not had any other serious disciplinary issues, such as tardiness, absenteeism, failure to perform work, etc. So essentially, this is a first time disciplinary matter.

At-Will Employment

Let’s deal with the elephant in the room. In Maryland, and in most states, the overwhelming standard of employment is at-will. This means that an employer can terminate an employee for any reasons, at any time, with or without notice. So it seems as though the simple answer is to simply fire the harassing employee and be done with the matter.

But not so fast. Wrongful termination claims can still be brought even if the harassing employee actually did it. I am not suggesting that terminating a harassing employee is a bad idea, it is just that employers should be mindful that even a claim or lawsuit filed with no real hope of success is still an expensive proposition. If you remember what I said about the investigation process, that it needs to be fully documented. This is why. Always make sure you have your decision process documented before terminating someone.

You Have Disciplinary Process, Right?

Before simply terminating someone or imposing discipline, take a detailed read of your employee discipline policy. Make sure before you discipline a harassing employee that you have followed each word of the policy scrupulously. Wrongful termination claims often start in a “you did me wrong” place, but end up in a “failure to adhere to the disciplinary policy” place.

Getting Something More For Your Disciplinary Action

Okay, quick side bar here. I have been a soccer referee since I was ten. One of the things that comes up is player discipline in the form of a caution (yellow card) or a sending off/ejection (red card). When a referee has to issue a yellow card (a caution to a player) for a call that is within the discretion of the referee, our referee instructors often tell us “Make sure you are getting something for the yellow card beyond the player receiving the card.” What that means is that player discipline applies to all the players on the field, not just the offending person. Sometimes a well-timed, well issued yellow card can calm a game down in a very palpable way. When a referee issues a discretionary yellow card, the referee is sending a message that implicitly draws a line in the sand saying what behavior will warrant a caution. Referees have to be consistent in their application of player discipline.

So back to the sexual harassment. Generally, we are adults in the work place and many adults are still human, subject to sexual impulses sometimes (flirtatious and otherwise) and subject to poor judgment on occasion. Because issues of hostile work environments are often cumulative in nature, most of people don’t know when they have crossed the line from occasionally annoying behavior to sexual harassment until someone brings it to their attention.

So, when an employer is dealing with disciplinary action, like the soccer referee, meting out employee discipline should likewise “buy” the employer something in addition to compliance by the offending employee. Human interaction is so complex and hostile workplace complaints are full of so many gradations, long-term cumulative behavior, and opportunities for subjective judgments that employers should take care to recognize that some human behavior is difficult to categorize. Summarily firing an employee for crude and suggestive behavior puts a marker down that is difficult to back away from.

So, if faced with needing to discipline an employee for harassment, employers should make sure they are setting a precedent that can be

1. Justified by the actions not just of this particular employee in this case, but if the behavior is also engaged in by the single most popular and well-liked employee in the company.
2. Evenly applied to future harassers of any sex, gender or gender identity. So, don’t discipline men harder than women who engage in the same type of behavior. Do so sets you up for a discrimination claim.
3. A mechanism for training employees about how such matters will be handled. Bear in mind that even though employee discipline should private, everyone will talk and it will get around. Employers should bank on the talkative nature of employees.

So, you can see that simply firing an employee for harassment can lead to several practical problems. Employers need to be consistent in their application of discipline for harassment cases. For example, if your baseline disciplinary action is termination, you set yourself up for a massive discrimination claim the minute you do not fire the next person who creates a hostile workplace. You also set the stage of the revenge complaint, meaning if people feel as though a coworker is an annoyance, they can set up a situation in which a harassment complaint can get someone terminated (and yes, I have reviewed cases in which this happened). Finally, you set an example that can be damaging to morale. We are human, we joke, we laugh, we probably say some inappropriate things from time to time. If you as an employer impose the nuclear option of termination each time someone makes an error in judgment, you are likely to be out of business soon because no one wants to work for an employer that just fires people as their discipline of choice.

So What Discipline is Appropriate if Not Firing

Good question. Without a doubt this type of matter demands a minimum a written warning and counseling statement. Nothing verbal in this type of case and remember, document, document, document. You can hope that this is the first and last episode, but employers should be preparing for the possibility that more may be necessary down the road.

So in addition to written warnings, employers can

• require sexual harassment training courses. Many are offered in-person and online. Employers can legitimately require these sessions and they can be found online and sometimes in person session. Continued employment can be conditioned on the prompt attendance of a training session.
• ask for formal apologies. While it seems a little childish, a formal apologies to the victim often goes a long way to clear the air. I suggest this be done with a trained HR mediator, but it can be done.
• reassign the employee to another department or work space, if possible. Reassignment of the harasser might be necessary and if possible, gives everyone a chance to breath a bit more, to relax, and learn the lesson.
• suspend the employee. If the matter is serious enough, suspension without pay is an appropriate measure. For serious matters, taking this approach sends an appropriate message, makes sure that the harasser is aware of the severity of the matter, but still leaves an opportunity to improve their situation.

Warning: Keep It Private

Okay, I have talked about getting something from a disciplinary action beyond simply the discipline of the employee. Often times that “something” is going to have to rely on employee gossip. We all know it happens and it will. But the employer and HR staff have to keep disciplinary matters private and confidential. The employer has to be above the situation, but should be cognizant of employee behavior.

Key Take Aways

1. Follow the disciplinary policy to the letter and document, document, document, document.
2. If you are going to discipline an employee, make sure that you get something more than just compliance by that employee.
3. Remember, disciplinary action must be justifiable, evenly applied to all similar situations, and responsive to the severity of hte issue.
4. Don’t jump to termination even if you are in an at-will state.

What disciplinary actions for sexual harassment have you had to deal with? Do you feel as though you handled the matter appropriately? What would you have done differently?