As employers are finding out all too often, getting tough and firing employees who harass other workers can bring on another big headache-a wrongful termination lawsuit. Although the California Supreme Court addressed this troublesome issue earlier this year, it’s been unclear exactly what steps you should take to protect yourself from being sued by an employee who is fired for harassment.
The Supreme Court ruled that a zero-tolerance policy against harassment doesn’t mean you can automatically terminate the perpetrator. But the court also said that you’re protected if you reasonably believed the misconduct occurred and you backed up your decision with a full investigation.
Now there is a new case that lays out some concrete examples of how to avoid a backlash from workers fired for misconduct.
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Employees Charge Harassment
In the recent case, Letitia Barajas, a Lucky Stores bagger in Stanislaus County, complained that store manager John Silva grabbed her buttocks. Lucky’s human resources representative, Jeff Szczesny, immediately interviewed Barajas, who said Silva had also slapped checker Rochelle Saldana on the buttocks. Szczesny then interviewed Saldana, who confirmed that Silva had touched her inappropriately several times.
Extensive Investigation Follows
Szczesny interviewed 13 other Lucky employees. Several of them corroborated the accounts given by Barajas and Saldana. Also, a worker said he had seen Silva bite a female employee on the buttocks, and other employees reported Silva had made offensive sexual comments.
Szczesny spoke to Silva three times to give him the opportunity to respond to the charges. Silva admitted he had physical contact with Barajas and Saldana, but contended it wasn’t sexual. He denied making sexually suggestive comments or touching other employees.
Fired Employee Sues
Szczesny prepared a written report summarizing his findings and why he concluded that the women’s accounts were credible. Based on the investigation, a Lucky Stores review board decided that Silva had violated the company’s sexual harassment policy, and he was fired.
Silva sued Lucky for wrongful termination. He charged that Lucky’s conclusion that he was guilty of harassment wasn’t reasonable. But the court threw out the case because it felt there was enough evidence to support Lucky’s determination that Silva had engaged in sexual harassment. Silva then appealed.
Termination Upheld
Under the California Supreme Court’s ruling earlier this year, the critical question in this case was not whether Silva in fact harassed his co-workers but whether Lucky, acting in good faith and following an investigation, reasonably believed Silva had done so.
The Court of Appeal answered this question in the affirmative and upheld the lower court’s finding that Silva’s termination was lawful.
3-Point Test
At the same time, the court also laid out this three-part test for determining if an employer is justified in firing an alleged harasser:
- Did the employer act in good faith in reaching the termination decision?
- Did the employer conduct an appropriate investigation?
- Did the employer reasonably believe the harassment allegations were true?
In applying these factors, the court concluded Lucky acted in good faith because there was no evidence to suggest it had a wrongful motive for discharging Silva. The court also found the company’s investigation was prompt and thorough.
Finally, the court said Lucky’s determination that Silva engaged in sexual harassment was reasonable. This was based on several points: 1) the alleged misconduct amounted to sexual harassment under Lucky’s harassment policy; 2) eyewitnesses corroborated the incidents Barajas and Saldana reported; and 3) Silva admitted physical contact with both women. Plus, other employees reported that Silva had made suggestive comments and engaged in other physical conduct that violated Lucky’s policy against harassment.
Investigation Strategies
This case makes clear how crucial it is to conduct a fair and thorough investigation before you terminate an employee for sexual harassment or other misconduct. Here are some concrete steps to take:
- Designate an investigator. Select a neutral manager or human resource employee to look into the complaint.
- Make a swift and thorough inquiry into all complaints. The investigator should check out the complaint immediately. This includes interviewing everyone involved and keeping careful notes of what they say. Also, during the interview process the investigator should focus on facts rather than unsubstantiated opinions or rumors.
- Provide the accused with notice of the charges and an opportunity to respond. Explain to the employee the accusations and the investigative procedures you will follow. Make sure the person has a chance to explain and respond to information the investigation uncovers. If the accused worker doesn’t have a genuine chance to influence your decision, you risk a charge that the investigation was a mere formality and your mind was made up before you heard the employee’s side.
- Determine validity of complaint. Evaluate all the evidence and the credibility of the witnesses. Once you reach a conclusion, put your reasons in writing. The more facts you have documented, the easier it will be to defend a discharge decision. And if you decide not to take action, a thorough investigation will help you fend off a lawsuit by the accuser.