Contents

Federal and state laws protect employees from harassment because of sex in the workplace. As a result, almost all employers today have policies that

• prohibit sexual harassment

• encourage employees to complain about sexual harassment;

• provide for prompt investigations into sexual harassment complaints; and

• result in "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.

Return to top

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 what happened: 

• A male manager told a female co-worker about a racy Seinfeld episode.  In the story Jerry forgot the name of his date. Her named rhymed with a female body part. He eventually remembered that his date's name was Dolores.

• 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 the accused.

Return to top

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 results.

• 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.

Return to top

What should you do if you are wrongfully accused of harassment? We suggest that you:

1. Hire experienced employment counsel.
2. Insist on a thorough investigation.  Object strenuously to witch hunts;
3. Ask to see evidence or other support for a "good faith belief" that the accused engaged in sexual harassment or other inappropriate conduct;
4. Disclosure of the allegations only on a "need to know" basis;
5. Investigative safeguards free from an investigator with a bias or a personal axe to grind; and
6. Punishment that fits the crime, evenly applied.

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.

Return to top