When it comes to sexual harassment allegations, no employer wants to find itself in the position an Indiana university was in during the 1990s, when a woman complained to a senior administrator that the school’s chancellor had groped her.
“Oh, no, not again,” said the administrator at Indiana University’s South Bend campus.
A jury awarded the woman $800,000.
Although a judge later slashed that to $50,000, the message was clear: Failing to address allegations of sexual misconduct in the workplace can have expensive legal consequences for employers.
“You don’t have to fire people necessarily, but doing nothing is usually not helpful,” said Camille Hebert, an employment discrimination professor at the Ohio State law school.
Earlier this year, a former University of California, Santa Cruz student who alleges she was raped by a professor settled her claim against the university system for $1.15 million over what she says was its failure to address previous allegations of sexual harassment and sexual violence by the faculty member.
It is with that reality in mind that companies are swiftly firing powerful men accused of misbehaviour and taking a zero-tolerance attitude toward such wrongdoing. But whether a no-mercy approach is a good idea is a matter of debate.
While businesses are usually within their rights to swiftly fire employees accused of misconduct, as was done this week with former “Today” show host Matt Lauer and former “Prairie Home Companion” personality Garrison Keillor, such actions can also backfire, legal experts say. For example, they say, women who just want the harassment to stop and don’t want to see anyone get fired might hesitate to come forward.
Philadelphia-based employment attorney Jon Segal said zero tolerance for harassment is important, but the consequences should be commensurate with the offence and should include steps short of firing, such as mandatory training, suspension or demotion.
“You don’t want to send the message to people that if there is an allegation and it’s found to be true, it’s automatic termination,” Segal said.
For employees who choose to sue, the timeframe can be short for raising the allegation: 300 days if employees want to sue in federal court. States often have more generous deadlines — six years in Ohio, for example — and fewer caps on financial damages.
Time limits don’t mean lawsuits can’t be brought over older complaints of harassment. For example, employees can argue that a recent incident within the 300-day limit allows them to revisit an older complaint outside that window.
Employers can also inadvertently breathe new life into old complaints by threatening employees with retaliation.
“That is very high on the list of dumb moves for employers to make,” said Washington-based labour attorney Richard Seymour.
Last year, a federal appeals court agreed that an Illinois circuit board company retaliated against a woman who brought sexual harassment allegations by firing her. She was awarded $300,000, even though her actual harassment claims were dismissed.
Employers can also take actions they think are fixing a problem but often end up hurting them in court, such as transferring a woman who complained of harassment but not the man who harassed her.
As new allegations crop up daily, labour attorneys say they are already hearing of a troubling trend: men unwilling to interact with female co-workers for fear of saying or doing the wrong thing.
Such behaviour is a mistake since it contributes to a new form of discrimination by putting opportunities for women out of reach, experts say.
“The answer to no sexual harassment isn’t polarizing the workforce into male versus female camps. That would be the very definition of sex discrimination,” said Washington labour attorney Deborah Kelly.
But Hebert, the Ohio State law professor, is skeptical of men who say they’re worried about getting accused.
“Most men understand the difference,” she said. “I always say, ‘If you’d feel uncomfortable with it happening to your daughter or your wife, maybe you shouldn’t be doing it.’”