If there’s a critical time to watch what you say in the workplace, it’s when you terminate an employee. If an employee is accused of sexual harassment or other misconduct, ensure that you conduct a fair and comprehensive investigation. Don’t make the mistake of assuming that the allegations are true just because a complaint was made. A recent case decided by the Second U.S. Circuit Court of Appeals, whose decisions are binding on Connecticut, New York, and Vermont federal courts, touches on both of these issues and serves as a useful lesson.
I Demand a Recount
Carl Thomas Sassaman worked as an elections administrator for the Dutchess County Board of Elections in New York. His supervisor was David Gamache, the Republican commissioner of the board. In January 2005, after an incident in which ballots had to be reprinted because of an error, Gamache announced that he was demoting Sassaman to elections specialist. Gamache selected Michelle Brant, an elections specialist, to fill Sassaman’s old position, and Sassaman assumed Brant’s former duties. At the time, Sassaman and Brant were friendly.
Things began to change one Saturday in late January 2005, when Sassaman called Brant to invite her for a drink and Brant declined. Although both Sassaman and Brant claimed the other expressed interest in having sex, each denied expressing any sexual interest. In early March, Sassaman saw on Brant’s computer that she had typed his name in an e-mail. The next day, he logged into her computer and read the e-mail. When Brant discovered her e- mail account had been accessed, she informed Gamache.
Gamache and Deputy Commissioner John Kennedy confronted Sassaman, who admitted he had accessed Brant’s e-mail. Soon after, Gamache told Sassaman that Brant had complained about him. She accused Sassaman of “harassing and stalking her.” In fact, she claimed to fear him and had stayed out of the office for that reason. Sassaman was suspended from work with pay. On March 10, Brant submitted a written complaint describing Sassaman’s alleged conduct. Gamache forwarded the complaint to the Dutchess County Sheriff’s Office but did not refer the matter for an internal investigation.
A Case of Gender Stereotyping?
During an interview that was part of the criminal investigation, Sassaman denied ever calling Brant at home or sending her notes. He later changed his story and admitted he had called her and sent her at least one note. He claimed he changed his story because he thought he was being interviewed about sexual harassment and never called or wrote a note that could reasonably be considered sexually harassing. On March 16, the sheriff’s office issued its report, finding insufficient evidence to support any criminal charges against Sassaman.
On March 21, Gamache called Sassaman and told him he would be fired unless he chose to resign. Sassaman claims that when presenting the ultimatum, Gamache stated, “I really don’t have any choice. Michelle knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.” Sassaman filed a lawsuit against the county and Gamache claiming he was discharged based on gender stereotyping, a violation of Title VII of the Civil Rights Act of 1964.
Let’s Let the Courts Decide
Sassaman’s former employer asked the court to enter judgment in its favor before trial because Gamache’s comment during the call was nothing more than a stray remark. It didn’t cause the termination, and it was insufficient evidence of discrimination or stereotyping. The court agreed and entered judgment in the county’s favor. Sassaman appealed to the Second Circuit, which took a different view of the case.
The Second Circuit held that a reasonable jury could construe Gamache’s alleged statement as evidence of gender stereotyping. It stated that because Gamache may have defended his decision to credit Brant’s allegations of sexual harassment by pointing to the propensity of men, as a group, to sexually harass women, a reasonable jury could infer discriminatory intent. The court found it immaterial that the so-called “stray remark” occurred after the termination decision had been made.
The court added that fear of a lawsuit doesn’t justify sexual stereotyping to resolve allegations of harassment, particularly when an accused employee is discriminated against in the process. The Second Circuit found that Gamache’s comment was more than a harmless stray remark because it could be evidence of a discriminatory state of mind.
Takeaway
This case confirms that you must diligently investigate all claims of harassment and other misconduct. You can’t just assume the claim is true. More important, never tell an employee he is being fired for an unfair or discriminatory reason.