June 8, 2009Client Alert

Conducting Harassment Investigations Now Doubly Important: Alleged Harasser Allowed to Pursue Sex-Stereotyping Complaint When Employer Assumes Guilt

When an employee speaks the words “harassment” or “sexual harassment,” most employers know that they need to take the complaint seriously and investigate it in order to reduce their risk of a lawsuit from that employee. Unfortunately, sometimes fear of a lawsuit causes employers to shortchange the process of fairly investigating and evaluating the complaint, and to instead take a “guilty until proven innocent” approach toward the alleged harasser. Some employers may even go as far as immediately terminating the alleged harasser without any investigation in an effort to avoid litigation. A federal Court of Appeals recently confirmed that this is not a foolproof approach, and instead may spark litigation from an unexpected source – the alleged harasser.

In the recent case of Sassaman v. Gamache, 2009 U.S. App. LEXIS 10937, a federal Court of Appeals upheld a male employee’s claim of sex stereotyping (sex discrimination) pursuant to Title VII of the Civil Rights Act, which protects persons in certain protected classes from discrimination in employment, because his employer assumed, without investigation, that he had sexually harassed his coworker. Sassaman’s female coworker, Brandt, complained to her boss, Gamache, that Sassaman had harassed her. Instead of investigating the complaint, Gamache suspended and then terminated Sassaman, allegedly stating that he did not have any other choice because the female coworker would sue. Gamache allegedly added that Sassaman probably harassed her because he is male.

The employer presented a “damned if you do, damned if you don’t defense,” claiming that if it had not terminated Sassaman, Brandt would have sued. Despite recognizing the employer’s valid concern that disregarding charges of sex-related misconduct put it at a considerable risk of being sanctioned for having tolerated sexual harassment, the court disagreed with the employer’s Catch-22 analysis. Specifically, it stated, “[w]e appreciate that employers who fail to address claims of sexual harassment expose themselves to civil liability. However, fear of a lawsuit does not justify an employer’s reliance on sex stereotypes to resolve allegations of sexual harassment, discriminating against the accused employee in the process.” Ultimately, the court reminded employers that while Title VII requires employers to take complaints of sexual harassment seriously, it also requires that they not presume male employees to be “guilty until proven innocent” based on invidious sex stereotypes.

So, what are the lessons for employers? First, do not simply attempt to clean your hands of the problem by terminating the harasser. Second, make sure that you conduct a fair investigation and listen to both (or multiple) sides of the story. In addition, make sure that you document the rationale for any decisions, especially credibility decisions, and assure that none of them are based on stereotypical assumptions. Conducting a fair and transparent investigation, to the extent possible given any confidentiality concerns, will not only reduce the likelihood of a lawsuit, it will put the employer in a better position to defend one.

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