Sexual Harassment, Termination Meeting – Employer Rights?
Question:
We are in the process of terminating an employee for a sexual harassment charge by a fellow employee. Here are the highlights of the claim/reason for termination: over a several month period this male employee made at least five inappropriate sexual comments to a female employee starting on her first day working here. All of the comments have been documented by the female employee on a sexual harassment form. In addition, there were witnesses (on one occasion, multiple) who verified the comments were made and witnessed. Based on the nature of the comments as well as the frequency, we have made the decision to terminate the employee.
When the employee came into work today to meet with us (we had planned on firing him), he brought an employment lawyer with him to the meeting. We explained the allegations brought against him, told him that we had investigated witness accounts and verified the story. He provided an explanation that he may have said all those things but they were said in fun and were part of the "culture" of the dealership and did not feel he should be fired. The attorney stated that this was a first offense and had never been written up or warned before so he deserved a warning and sensitivity training. It was a first offense.
We concluded the meeting without formally terminating him and stated we would get back to him very shortly with our decision on his employment. Prior to do doing that, we wanted to reach out to you to make sure we have done all we can to protect ourselves when we move forward with the termination... which is still our plan. We do have a zero tolerance policy clearly stated in our employee handbook. All witnesses are willing to provide written statements regarding what they heard.
Please let us know what additional information we need to consider before terminating the employee.
Answer:
As background, an employer must treat allegations of inappropriate conduct seriously and address them promptly. Indeed in the face of allegations of sexual harassment or other misconduct at work, the employer has a duty to conduct a prompt and thorough investigation to determine whether an unlawful or inappropriate workplace condition exists or whether a company policy is being violated. If such conditions are found, the employer then must take all steps necessary to remediate such conduct, and this can in some cases include terminating the employment of the employee(s) who is/are accused of the misconduct.
If, after an appropriate investigation, the employer determines that an accused person has behaved unlawfully, inappropriately or otherwise engaged in misconduct or other policy violations in the workplace, the employer is obligated to take appropriate measures consistent with employer policy and practice to discipline the employee for such infraction(s) and ensure it does not reoccur. Such action may include a verbal counseling, or terminating the employment relationship, or something in between, depending upon the outcome of the investigation and prior disciplinary action as well as the employer's stated policies and practices in any prior similar situations. The employer has sole discretion to determine the appropriate disciplinary action in this scenario, in accordance with its policies, practices and contracts (if any).
You indicate that the employer learned of workplace improprieties and, after investigation, determined that a male employee "made at least five inappropriate sexual comments to a female employee" over the course of several months. ... Based on the nature of the comments as well as the frequency, [the employer] made the decision to terminate the" employment relationship. The employer is well within its rights to proceed with such action in a situation such as this, assuming discharge is consistent with policy and past practice and is not inviolate of any contract.
You advise further that when the employer convened with the employee to convey its discharge decision, the employee showed up represented by counsel. Assuming the workplace is non-union and no contract or policy is to the contrary, please note that in the future, a private sector employer is not required to and generally should not allow employees to bring third parties into the workplace, for any reason and particularly not in connection with disciplinary action. A disciplinary or discharge discussion is not a legal proceeding, and employees are not entitled to legal representation in attendance. That said, the employer apparently did permit the discussion to proceed with the employee's counsel present. You advise that during such meeting, the employer "explained the allegations brought against [the employee," told him that we had investigated witness accounts and verified the story." In response, the employee admitted the remarks but attributed them to being "in fun" and "part of the 'culture' of the dealership." He expressed his opinion that that he "did not feel he should be fired." Apparently the attorney echoed the employee's position by claiming that "this was a first offense" and that because the employee "had never been written up or warned before ... he deserved a warning and sensitivity training."
As noted above, the employer has sole discretion to make employment decisions. The subjective opinions of the employee in question and/or of his attorney about what they think should occur or what they believe the employee "deserves" are not relevant to the analysis, and as a best practice should not be taken into consideration by the employer (again, assuming no contract, policy or practice supports doing so). If the employer permits the opinion of the employee or his attorney to influence or change the employer's decision as to the appropriate disciplinary action, this can set an adverse precedent for the employer, one which it may not want to have to adhere in the future. There can also be significant employee relations issues if other employees (and particularly the "victim" employee) learn that the subject employee received a lesser disciplinary action than the employer determined he deserved (and that perhaps the employer's policy supports) because he retained and brought counsel with him to the meeting. Other employees may want to do the same and expect a similar outcome.
Ultimately, if the employer has a clearly stated "zero tolerance" policy for the kind of behavior in which it determined the subject employee engaged (and which he, in fact, admitted), it can and should proceed with the discharge decision it previously made. Again, the employee's excuse that his admitted remarks were "in fun," or his lawyer's opinion that he does not "deserve" a discharge because this is his "first offense," are not valid reasons to rescind or reduce the disciplinary action that the employer's policy otherwise supports. There is also no statutory or legal authority requiring the employer to consider such opinions in rendering its final decision. We advise that the employer’s decision not to revisit its initial determination and to proceed with dismissal should be conveyed directly to the employee himself -- not to or in the presence of his attorney -- in the ordinary course of the employer's practices and procedures. The employer should ensure that its discussions and decision are fully documented, and that all wages the employee earned are timely paid in accordance with applicable law.
As to allowing third parties (such as attorneys) to participate in disciplinary discussions, if this was the first situation of its kind, the employer has arguably set a precedent here, and other employees may want to do the same in the future. The employer can course-correct, however, if it so chooses, by establishing a formal written policy prohibiting employees from having third parties present during work hours, on company premises or otherwise in business-related meetings, etc.. Any new policy to this effect should be clearly communicated to all employees and then uniformly and consistently enforced once implemented. If any employees were to argue that they, too, should be permitted to bring a representative to a disciplinary/discharge or any other work-related meeting, and challenge the employer for prohibiting them from doing so, in its defense the employer could distinguish the situations by pointing to the fact that the (former) employee was permitted to do so because no formal policy was in place at that time, but the employer has subsequently established a policy prohibiting such representation, and is then seeking to enforce it prospectively.
Finally, to the extent the accused employee has alleged that there is a "culture" in the workplace that supports the kind of behavior in which he engaged, the employer would do well not to ignore such a claim and to instead take a closer, investigative look to determine if there is any merit to the accusation. If so, the employer should ensure it takes appropriate remedial measures to eradicate any improprieties found to be occurring in the workplace, whether via disciplinary action (up to and including discharge of other employee culprits), company-wide policy review, and/or harassment/sensitivity training.
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