Is an Employer Required to Terminate an Employee Who Has Been Accused of Sexual Harassment? Not Necessarily.

By now, most everyone is aware of the termination of employment of a television personality who has been accused of sexual harassment. According to news reports, his former employer has reached settlements with five women who had complained about sexual harassment or other inappropriate behavior by him. The agreements totaled about $13 million. The termination followed an investigation by an outside firm into additional allegations of harassment.

This same company also saw the dismissal of its CEO due to sexual harassment allegations.

So does this mean that a company should always terminate an employee who is accused of sexual harassment? It depends on the circumstances.

When an employer becomes aware of a complaint of harassment, it has a duty to investigate. If the investigation reveals that the complaint has merit, the company should take prompt, effective remedial action. The goal of any remedial action is to make sure that the harasser does not commit further harassment in the workplace. The most effective way of achieving this goal is to terminate the harasser. Whether the employer uses this ultimate punishment should depend on some of the following factors:

• How serious was the harassment? As a general rule, incidents of unwanted touching of another, especially private parts, need to be dealt with most severely. If the harassment was verbal, there is a difference between one or two off-color jokes and profane, obscene or distasteful comments directed at another employee or his/her anatomy.
  
• What is the harasser's employment history? Is this a long-term employee who has never been in trouble? Or a fairly new employee?
  
• Has this employee been accused of harassment before? If there is already one verified complaint of harassment against the employee, then any future verified complaints mean that he/she has not gotten the employer's message that harassment in the workplace is unacceptable, and termination may be the most logical option.
  
• What is the harasser's response to the accusations? Is he/she defensive? or remorseful? If he/she refuses to admit that he/she did anything wrong, even when there is solid evidence to the contrary, there is a risk that the behavior may occur again.
  
• Is there another punishment, such as demotion, suspension without pay, disqualification from bonuses or profit-sharing, or the like, that will get the harasser's attention enough that the behavior will not happen again?
  

If an employer decides to give an employee one more chance, any punishment should be supplemented with harassment prevention training. That training may be extended to others in the same office, department, or facility if the employer determines that there is a systemic problem. In addition, if possible, the harasser and the recipient of the harassment should be physically separated.

Finally, regardless of what action the company takes against the harasser, everyone must be reminded that the company will not tolerate any retaliation against any employee who makes a good faith complaint of harassment.