Is this Retaliation?
jscheidter
18 Posts
A current employee has made a complaint of sexual harassment by his supervisor. During the investigation, we have discovered that he is no angel and has done creepy things to some female employees. We want to get rid of him (and his supervisor if it is true) but I am afraid he will claim retaliation for making a complaint. If the supervisor denies the allegations, we still want to terminate him for his creepy behavior (leaving notes written in lipstick to female employees etc.)
Comments
just an opinion, I could be wrong.
Good luck.
James Sokolowski
HRhero.com
>supervisor if it is true) but I am afraid he
>will claim retaliation for making a complaint.
Sorry if I seem a little dense. Are you saying:
A male employee has claimed sexual harassment by his male supervisor. During the investigation, you learned that the male EE is guilty of "creepy" behavior also? You want to term the male EE but you fear he will file a retaliatory claim.
I say match the behavior of both the EE and the supervisor up against the definition of both "hostile environment" and "quid quo pro." If you determine that the claims are founded, run it by your legal council to make sure your position can be defended if you choose to terminate.
Let us know!
I'm afraid that sexual harassment doesn't have to rise to that level of discomfort. The work environment doesn't have to be 'unbearable', just uncomfortable, threatening or offensive. And the terms and conditions of employment do not have to be changed. Typically a hostile work environment is created by those who have no power to alter the terms and conditions of employment, as is often the case in quid pro quo. One other thing I disagree with in your post: For action to be taken to correct sexually offensive or harassing behavior does not require that a complainant come forward.
I would recommend that you get a guide to investigating sexual harassment and follow your policy. If you don't have a policy, this would be a great time to implement one.
Firing an ee for making a claim, yes would be retaliation, however you have stated that he has "offended" other employees. How did this information come to light and do you think it is creepy or has someone filed a complaint?
It looks like you have a little more investigating to do to determine if and who is in the wrong and if you have grounds for dismissal anywhere. This may just be a situation where you do a sexual harassment training class with the parties involved so that they clearly understand what truly defines sexual harassment. A lot of people will have a lot of different opinions. Some say one act is not enough and others say its plenty.
I believe you can download an investigation guide from this site. I also believe that one of the newsletters wrote a short gudie to investigation. Good Luck and let us know how it goes.
JM
Just as a question, if you were investigating an embezzlement accusation and while doing so discovered the accuser to be an embezzler, would you hesitate to begin the appropriate process?
If you were having drinks in a bar with a fellow EE and he/she told a story entailing inappropriate behavior towards other EEs, would you still need the other EEs to come forward? I would suggest that however you became aware of the information is not so relevant. The point is you are now burdened with knowledge and MUST act upon it.
Just finished defending our company for a wrongful termination, which developed from the individuals personal written statement which he voluntarily admitted to doing something wrong totally outside of the thrust of the current investigation. He was terminated for violation of company policy based strictly on his written statement. "He brought a child age 14, his significant other's son in to help him do physical labor for which he allowed the company to pay him and he then paid his to be step son!" An act he had no authority to do, an act he did in total disregard to the FLSA, an act to which he admitted to as a witness to the fact that he was at work from XXX time to YYY time, which was center to the other investigation as he was a witness self-admitted to seeing another ee at work when no one else saw the other ee at work for a total of 5 hours of overtime on Sat morning. The other ee was terminated for his inability to produce validation for his time reported as worked on Sat morning. This ee, clocked in the other ee, but failed to realize his boss and the General Manager were going to be on site "Cutting Hay and never saw the vehicle nor the individual that Sat morning"; this ee confessed, but we terminated anyway! The first ee was terminated the next day after we got his written statement, the 2nd was terminated after we got several additional statements. Both have held up under legal review!
PORK
In the case of the complaining ee, who in turn, has been doing inappropriate things--just be sure to stick to the admitted or discovered facts. Leave the issue of the original complaint out of the equation.
Be sure that you are disciplining the ee at the same level of severity that you would anyone else in the same situation. If you have had other employees do offensive/inappropriate things (who haven't made harassment complaints) and didn't terminate them, but only did a warning or some other action, then be sure to equally punish. To give out a harsher punishment, would definitly hint of some level of retaliation.
Good Luck.