How to terminate an employee for sexual harassment?

November 24, 2008 9:37 AM

I think I need to terminate an employee for sexual harassment, help!

Background

I own a small business. I learned last week that one of my employees has been harassing another employee and then made inappropriate, unwanted physical sexual contact with the harassed employee. I can’t condone such behavior in my workplace (and more so, could conceivably open my business to litigation if I did), and want to let this employee go.

Open and shut case, no? Well, it’s a little complicated. The accused employee is (a) learning disabled, so finding a new job won’t be that easy, (b) has a family of three kids and a wife to support on a single income. I feel responsible to not only the employee but to his family, too. Letting the employee go makes me feel bad, but an emotional response to such a situation does not always make for the best business decision.

Question

The professional, decent thing to do would be to terminate the employee with two weeks’ pay, but the employee already has an outstanding loan equal to two weeks pay, and I’m not inclined to reward him unduly for his unacceptable behavior. On the other hand, I need to be fair to the victimized employee, too. What’s the decent thing to do here?

posted by Izzy to work & money (29 comments total)

Call an employment lawyer.
posted by tristeza at 9:43 AM on November 24, 2008 [9 favorites]

Have you spoken to the employee accused of sexual harassment? You really need to get the information from both sides, then consult either an employment lawyer or a PEO and they would be able to advise you of your next step.

Absolutely do not, under any circumstances, keep an employee on the payroll out of pity if their behavior warrants termination. You are setting yourself up for big, big, big trouble down the line by establishing a standard of tolerance of sexual harassment.
posted by banannafish at 9:46 AM on November 24, 2008 [1 favorite]

You are definitely going to have to terminate the employee, but yep, call a lawyer. Mostly because your business is now open to litigation regardless of what actions you take as a result of this employee's actions.
posted by fusinski at 9:46 AM on November 24, 2008 [1 favorite]

Seconding 'talk to a lawyer'.

At the very minimum I would suggest a written warning to the effect that if he does it (or anything similar) again you will fire him. And that's a threat you should follow through on.
posted by Mike1024 at 9:50 AM on November 24, 2008

The professional, non-emotional response would be to talk to a lawyer. Also, the feelings of the harassed employee might inform your decision, especially if the two of you agree that it may be possible to work things out with the employee in question so as to prevent any future inappropriate behavior. Keep in mind that that conversation or any resulting informal agreement won't protect you from litigation, but it might make the decision a bit easier.

As far as your business goes, you should fire him. But if you're interested in in resolving it another way - and in fact, in any case - you should definitely get counsel from someone who knows what the likely (and unlikely, but possible) repercussions are.

On preview, what banannafish said.
posted by Picklegnome at 9:51 AM on November 24, 2008

Yep, $200 for a lawyer consultation will be money well-spent. Unless we actually have a lawyer on board who decides to give out some free advice, this is a thin-ice area. Also we don't know what state or country you're in, so it's hard to even say which laws apply.
posted by crapmatic at 9:53 AM on November 24, 2008

I understand your hesitation to terminate the offending employee without pay out of concern for his family. However, you do not employ his family. You employ him. His family may be wonderful but that should have no bearing on this decision.

As your employee, there is a set of expectations regarding what is appropriate. He has not fulfilled those expectations. Unfortunately, his family may suffer. But as the employer you are responsible for the safety and well-being of your employees. You have to focus on preserving the victim's sense of support within the workplace.

If you have a particularly good relationship with his family, send them a gift card to Shop Rite so they can have a nice holiday meal. But other than that, you risk insulting the victim further by extending too much to the offending employee.
posted by ginagina at 9:58 AM on November 24, 2008 [1 favorite]

has a family of three kids and a wife to support on a single income

In some states it would be illegal to discriminate between your employees on the basis of their marital status. I don't think this should enter into it. You would expose the victim to further contact with someone who assaulted her because he's married and has children? That sounds totally wrong and the sort of thing that would set you up for a lawsuit.

Get a lawyer.
posted by grouse at 10:03 AM on November 24, 2008 [7 favorites]

In addition to the lawyer recommendation ($200 seems a little on the low side, alas), I would make sure that if you have an employee manual, whatever you are doing comports with that. (In other words, for example, if you have a policy of giving a "warning," you are likely subjecting yourself to a lawsuit if you do not follow that policy and fire this person.) Your question does not indicate how you confirmed that this indeed happened, but talking to the alleged harrasser and getting his side of the story, as well as that of any witnesses, before acting would be a good idea, if you have not already done so. Making an emotional decision based on your sense of responsibility to the alleged harrasser's family could also open you up to liability if you do nothing and he harrasses others or continues to harrass this employee, because you now have information about his harrassing behavior and are likely under a duty to investigate and do something.
posted by *s at 10:09 AM on November 24, 2008

I second grouse. His family's decision to survive on just his income is decidedly out of your control. While it may seem more humane to take his family, and not just him, into account, such a decision would stem from the same reasoning that leads employers to pay married employees more than single ones for the same work, because the married ones "need it more."
posted by ocherdraco at 10:09 AM on November 24, 2008 [6 favorites]

Have you considered disciplinary action as an alternative to termination?
posted by canoehead at 10:10 AM on November 24, 2008

I learned last week that one of my employees has been harassing another employee and then made inappropriate, unwanted physical sexual contact with the harassed employee
Are you absolutely, 100%, no doubt in your mind, sure that the accused is guilty? And if so, depending on the severity of the harassment, is it possible to how mercy while not disrespecting the injured party?
When all is said and done, could you, if it's necessary to fire the employee, just pay them through the end of the year? If nothing else you're feeding the innocent kids. You could also assist with helping the accused get food stamps and heating fuel. Remember the second chances you've been given, or could have been. The harassment is, on the face of it inexcusable (I don't know the details), but don't 'recompense evil with evil'.
I don't recommend a lawyer. But then I seldom do.
posted by dawson at 10:10 AM on November 24, 2008

Obviously, everyone here is right that you should get a lawyer to protect yourself from litigation as much as possible. I also expect that you're going to have to fire him. That said, I think you should do as much as you feel comfortable toward making the termination as easy on him and his family as possible. The victimized employee certainly has a right to see him fired and for you to do what is necessary to ensure that the workplace is a safe place. That doesn't require you to punish him, beyond firing him, and it doesn't require you to ignore your own feelings toward him or his family. Make it clear that you don't condone the behavior, and that you can't keep employing him, but that you don't want to see him suffer and do what you can to help. Forgive his loan, give him some money, something to try and help him land on his feet.
posted by Bulgaroktonos at 10:10 AM on November 24, 2008

'show mercy' also, what canoehead said.
posted by dawson at 10:11 AM on November 24, 2008

The accused employee is (a) learning disabled, so finding a new job won’t be that easy, (b) has a family of three kids and a wife to support on a single income.

I hate to sound callous, but this is not your responsibility. Your responsibility is to provide a safe work environment to your employees. If it helps, think about the emotional trauma the harassed employee may well be experiencing, having to fear sexual harassment every day she comes to work. Think how this may affect the other people in her life (does she have children?), her ability to view her body and sex positively. Sure, I feel bad for the employee's children, but you can't save them from the fact that they have a father who is a mentally disabled sex offender. You can save your employees from being sexually harassed. Talk to a lawyer about this today, and deal with this as soon as possible, because now that you know about this behaviour you're exposing yourself to massive liability if you don't get rid of this employee immediately.
posted by Dasein at 10:18 AM on November 24, 2008 [1 favorite]

Have you considered disciplinary action as an alternative to termination?

This would have been appropriate when it was simply inappropriate verbal comments. When it crossed the line into physical contact, this employee ensured that his victim will never again feel safe around him. He's poisoned the work environment, and needs to be removed from it. Full stop.
posted by Dasein at 10:21 AM on November 24, 2008 [5 favorites]

I agree with Dasein that you should not be concerned as an employer on the effect of your decision vis-a-vis the stability of the termed employee. As a person, I understand it. But you have special responsibilities as the employer to your other employees.

I would also agree that you should speak to an employment law attorney in your state. You could probably get an answer with little work. Sure it will cost you some, but it will save you in costs down the line. It's the old an ounce of prevention thing.

At the very least, create a file, and paper the crap out of it with all the complaints and communications.
posted by dios at 10:45 AM on November 24, 2008 [1 favorite]

I bet you could even pay the lawyer to inform the employee of his termination of employment and escort him out of the office. You can pay lawyers to do lots of things.

As a small business employer myself, I have to say this this is all part of the game that you chose to play. It sucks, but once you get through it, it gets easier and you will feel better after it has been done.
posted by dhammala at 10:53 AM on November 24, 2008

It's your employee's responsiblity to behave acceptably at his job, so that he can stay employed for the safe of his family. He failed his family by sexually harassing somebody, and thus endangering his job. You will not be failing his family by firing him; he's already done that. But you will be failing your other employees if you keep this guy around.
posted by Coatlicue at 10:58 AM on November 24, 2008 [9 favorites]

You are running a business. You have a responsibility to pay for the services of your employees, and to do what you can to keep them safe while they work for you.

He first harassed one of your workers, and then escalated to "inappropriate, unwanted physical sexual contact". Those are not the services you pay him to do, and that is not safe for the other employees.

Do not feel guilty about the consequences of his actions. Do not feel guilty about doing what you can to keep your employees safe while they work for you.
posted by Houstonian at 11:03 AM on November 24, 2008

I am an employment lawyer. I am not your lawyer. I am not giving you legal advice.

GET A LAWYER RIGHT NOW! DO NOT ACCEPT LEGAL ADVICE THAT YOU RECEIVE ON ASK METAFILTER.

If you need help finding a good employment lawyer, send me a MeFiMail right away. You must deal with this situation in exactly the right way, and you must have competent legal advice about it.
posted by The World Famous at 11:03 AM on November 24, 2008 [15 favorites]

(a) learning disabled, so finding a new job won’t be that easy,

Not your problem. He should have considered that before he sexually harassed someone.

(b) has a family of three kids and a wife to support on a single income.

Not your problem. He should have considered that before he sexually harassed someone.
posted by jayder at 11:08 AM on November 24, 2008 [2 favorites]

To answer your second question, I think the appropriate, professional thing to do about his last paycheck is: If you break laws in my employ, you are terminated immediately with no additional pay. Two weeks' pay is offered during layoffs, etc.

Unfortunately, not only does he sexually touch other employees, he's also borrowed 2 weeks pay from you. I'd deduct that from his last paycheck, and offer no "extra 2 weeks' pay". I'd document all of that with a lawyer, so there is no misunderstanding about the money.

Of course, all of this depends on the Employee Handbook you have (for termination policies, and loan repayment policies).
posted by Houstonian at 11:09 AM on November 24, 2008

IAAL; IANYL.

You should not about this situation on the internet, even in an anonymous way; the information provided makes it relatively easy to identify you and your business.

Don't take any of the advice here; talk to an employment lawyer in your jurisdiction. Employment law-related advice is absolutely not the kind of thing that you should take advice about from Joe Schmoe on the internet. You have a business, you have employees and you understand that employment-related issues expose you to liability. So do what you should have done before you started employing people and start working with a qualified employment lawyer.
posted by iknowizbirfmark at 11:31 AM on November 24, 2008 [1 favorite]

Yes, talk to a lawyer.

One option to explore is to provide a reasonable severance in exchange for an agreement by him not to sue you. It's not necessarily fair, but at least it limits your legal exposure.
posted by randomstriker at 12:55 PM on November 24, 2008

The state you live in may be able to help you. After saying that, I agree that you should talk with a lawyer. Having been on the receiving side of sexual harassment from a former boss, you need to deal with this. Just make sure you cover yourself. I am sorry for the employee who has the three children, but as jaydar said-he should have thought of that before.
posted by JAD'E at 1:07 PM on November 24, 2008

Should the sexually harassed employee be stuck putting up with being molested at work because she doesn't have three dependent kids and a dependent spouse at home to support? Does kids + wife = "better to keep this one employed than the chick who didn't do a darned thing?"
posted by jenfullmoon at 2:29 PM on November 24, 2008 [1 favorite]

IAAL, and have dealt with employment litigation although I do not specialize in it. You need to talk to a lawyer. There are too many variables in cases like these for anyone to be able to give you sound advice over the internet. Ask lawyers you know for a referral, or if you don't know any lawyers, call your state or local bar association.
posted by AV at 3:03 PM on November 24, 2008 [1 favorite]

For every employee with three kids that you need to fire, there is an unemployed man with four kids who needs the job more.
posted by Jairus at 3:34 PM on November 24, 2008 [3 favorites]