Federal and state laws
protect employees from harassment because of sex in the workplace. As
a result, almost all employers today have policies that
encourage employees to
complain about sexual harassment;
provide for prompt
investigations into sexual harassment complaints; and
"corrective action" against the accused.
In many cases, corrective
action means immediate termination of the accused.
What happens if the
accusation is not true? Given the million dollar verdicts obtained by
victims of sexual harassment today, most employers take no chances.
They opt for firing the accused, who has limited rights under federal
and state laws. This, however, is beginning to change.
A recent case in Wisconsin
illustrates what can happen when the wrongfully accused fights back.
The case is Mackenzie v. Miller Brewing Company. This is
- The female co-worker "didn't
get it," so the male showed her the body part in an
anatomically correct dictionary. She later complained to his
supervisor that she was offended. He apologized. Company
attorneys questioned him and the company fired him two hours
later. He filed suit and a jury returned a verdict in his favor
and against the company, the female co-worker and his
supervisor, for over $27,000,000.
- What really happened? The jury (10
women, 2 men) did not believe that the female co-worker was
actually offended by the Seinfeld discussion. Instead,
the jury found that she had made similar and more graphic
references at work; and
- She had learned that she would
soon report to him and did not want to do that. Moreover, the
supervisor that she convinced to fire McKenzie had earlier
intentionally interfered with his ability to obtain a promotion
by telling upper management that he was not suitable for
promotion, then lied to McKenzie about it.
The jury based its award on some unique
features of Wisconsin law and the facts of this particular case.
However, the huge verdict received massive media coverage. As a
result, most employers believe that they must respect the rights of
What are those rights? In Ohio, the
accused has the right:
- to be free from discrimination. An
employer cannot punish the accused more harshly than someone
outside of the accused's protected class. In other words, if the
accused is a 50-year-old manager and the owner has condoned the
same or similar behavior by his young son, the owner must treat
the 50-year-old manager the same way.
- to a thorough investigation.
An employer cannot conduct a "Kangaroo Court" without
risking a jury second guessing what the employer might have
found if it had looked at all of the facts.
- a good-faith basis for believing
that the allegations are true before taking adverse employment
action, at least if the employee can point to a "just
cause" employment contract. In Ohio, the employer's
policies and conduct can give rise to such a contract.
- to be free from defamation. An
employer should not publish a damaging investigation report to
anyone other than those who have a "need to know" the
- to give consent to an
investigation by an outside agency before the employer can use
the agency; and
- to see the report compiled by an
outside agency if it is used adversely against him or her. This
right does not exist, however, with respect to investigations
conducted in-house by the employer.
The rights of the accused are still in
their infancy and have a long way to go before they are fully
developed. For now, employers have a clearer duty to protect employees
from harassment, which carries far greater penalties if it is
breached. Therefore, employers will probably continue to err on the
side of terminating the harassed.
What should you do if you are
wrongfully accused of harassment? We suggest that you:
- Hire experienced employment
- Insist on a thorough
investigation. Object strenuously to witch hunts;
- Ask to see evidence or other
support for a "good faith belief" that the accused
engaged in sexual harassment or other inappropriate conduct;
- Disclosure of the allegations only
on a "need to know" basis;
- Investigative safeguards free from
an investigator with a bias or a personal axe to grind; and
- Punishment that fits the crime,
Will the laws protect you against a
wrongful accusation? Not always. However, the Wall Street
Journal recently reported that a former branch manager at the Salomon
Smith Barney unit of Citigroup Inc. won an arbitration award of more
than $1.9 million against the securities firm after he was ousted amid
allegations of sex discrimination. According to the article, the
arbitrator found that the company had used the complaint of harassment
as a pretext to terminate the manager because of his age.
If you are accused of sexual
harassment, know your rights. Fortney & Klingshirn has
successfully represented hundreds of Cleveland, Akron and Northeast
Ohio individuals and employers in sexual harassment and other
employment matters. Contact
us to see if we can help you.