Do We Need to Fire Every Employee Who Is Guilty of Sexual Harassment?

Federal and state laws require businesses to take reasonable steps to prevent sexual harassment. The most effective steps include:

• creating a sexual harassment prevention policy,
• following a clear and unbiased procedure to investigate and address sexual harassment complaints,
• training managers and supervisors to identify and stop sexual harassment, and
• training employees about their duty not to sexually harass other employees.

Responding effectively to sexual harassment complaints is an important part of that obligation. Many businesses look the other way when they become aware of sexual harassment because the harasser is important to the organization’s ability to make money. The business may be reluctant to fire an employee who is key to the company’s success.

For example, suppose the reputation of a successful restaurant depends on the talents of its executive chef. If the executive chef is sexually harassing a line cook, the restaurant owners might decide that firing or transferring the line cook would be more profitable than confronting (and potentially losing) the executive chef. Yet the line cook isn’t the source of the problem. Taking action against the line cook will invite a lawsuit for retaliation.

How then should a business address sexual harassment? Does it need to fire the harasser? The answer is “probably not,” but a more complete answer depends on the circumstances.

Progressive Discipline

Many successful businesses have implemented a system of progressive discipline for work rule infractions. In most cases, applying that system to violations of a sexual harassment prevention policy will be an appropriate and measured response to harassment.

A progressive discipline policy might provide for:

• a verbal warning after the first incident,
• a written warning after the second incident,
• an unpaid suspension after the third incident, and
• termination after the fourth incident.

Employers should always explain why an employee’s harassing conduct violates the employer’s work rules and/or sexual harassment prevention policy. Any discipline short of termination might be accompanied by a requirement that the employee complete sexual harassment training again.

Transferring the harasser to a different job or location might also be an appropriate disciplinary response in some instances. Companies need to be careful, however, that they aren’t moving a problem employee to a place where the same kind of harassing behavior is likely to be repeated. Transferring the harasser might solve the problem if the harassment targets a specific employee, but if the harassment targets more than one employee because of their gender or sexual orientation, a transfer will merely create a new set of targets for the transferred employee to harass.

Limits of Progressive Discipline

To protect themselves from legal liability and to protect employees from continuing harassment, it is important for businesses to impose that is both effective and proportional to the harassing conduct. The progressive discipline discussed above is designed to give employees another chance while making it clear that continued acts of harassment could lead to more severe consequences, including discharge.

Progressive discipline may be appropriate when the harassment is mild, particularly when it has not reached the level of creating a hostile work environment. Occasional abusive comments or unwelcome requests to go on a date will only violate the law if the continue. Progressive discipline is a way of nipping the misconduct in the bud, before a hostile work environment develops.

Some acts of sexual harassment may be so severe that a simple warning would not be a proportional response. For example, giving a warning to an employee who sexually assaults a co-employee would not be adequate to protect employees from dangerous behavior. An outright termination is generally the only appropriate response to serious criminal conduct.

Similarly, a warning might not be a sufficient response to a supervisor who threatens to terminate a subordinate unless the subordinate provides the supervisor with sexual favors. While the employer will need to weigh the supervisor’s work record against the impact the sexual harassment had on the company, a suspension might be the minimum discipline that would impress upon the supervisor the severity of the violation.

In every case, employers should keep in mind that the purpose of responding to acts of sexual harassment is to prevent their recurrence. When further acts of sexual harassment can be prevented without terminating the harassing employee, a company might make a reasonable decision to impose some other form of discipline. To assure that the discipline is effective, however, the company should reinforce the importance of the company’s sexual harassment prevention policy, and may want the offending employee to repeat a sexual harassment training course to assure that the employee understands what is expected in the future.