Company sued for giving employee another chance
February 23, 2009 by Sam NarisiPosted in: Harassment, In this week's e-newsletter, Investigations, Latest News & Views
Many companies use a “three strikes” policy for dealing with employee misconduct. But as a recent case shows, that’s not the best solution in some situations.
An employee complained to her supervisor that a co-worker had been sexually harassing her. The allegations were pretty severe: The woman claimed he consistently made sexual comments, touched her inappropriately and asked her to view pornography on his office computer.
The company suspended the co-worker and investigated. The conclusion: All the allegations were true. The man was suspended without pay and warned that he’d be fired if the conduct continued.
But the harassment didn’t stop and the woman complained again. The co-worker was suspended and warned a second time.
After that, the employee quit and sued the company for failing to put a stop to the harassment.
The company argued that it took appropriate disciplinary action in response to her complaints. But the judge didn’t buy it.
Two complaints should have been enough for the co-worker to lose his job. The woman testified that she was no longer comfortable coming to work with him around, and the company’s actions didn’t convince him to change his behavior.
What’s the best way to handle employees who’ve been accused of sexual harassment? There’s no easy answer. But the courts look to see if the company does something that could reasonably be expected to stop the harassment.
In this case, the company’s empty threats weren’t enough.
Cite: Engel v. Rapid City School District
Tags: complaints, sexual harassment, three strikes
February 24th, 2009 at 10:55 am
I didn’t know anyone was given a second chance for sexual harassment, much less a third one.
February 25th, 2009 at 10:27 am
I agree, I would have fired him at the first shot.
February 25th, 2009 at 10:33 am
Same here. Some things don’t get second chances and sexual harassment is one of them. Companies that have a 3-strike rule need to factor in some common sense. You would not give an embezzler three chances would you?
February 25th, 2009 at 10:44 am
It is in our policy that you can be terminated for this type of behavior.
February 25th, 2009 at 10:56 am
This is where common sense is proven once again to be not so common. A three strikes policy should have exceptions — i.e. egregious acts, gross misconduct, theft etc. But since people cannot always make distinctions, it’s probably best just not to have this type of policy in place. If as a manager, you want to give someone three chances, you can still do so. If not, you don’t have to wonder if you have to.
February 25th, 2009 at 11:11 am
I totally disagree with the “write up 3 times and your gone” policy. We expect our employees to behave and act appropriately at all times. If they don’t, there gone. You can’t teach this.
February 25th, 2009 at 11:15 am
“you’re” not your and “they’re” not there….You can teach this.
February 25th, 2009 at 11:35 am
Thanks Joan. Unfortunately my multi-tasking makes it looks as if I am illiterate. Thank goodness you have the time to catch my mistakes.
February 25th, 2009 at 12:03 pm
Good catch, Joan! Very funny…If you look at the dateline of the above event, you should notice 1977…where is it? I could have sworn I saw that…to think this was a school district too makes me wonder what other kinds of decisions were made with the “best interest of the students” in mind. Perhaps child molesters as schoolyard monitors? This was egregious the first time, and there is no “second chance” in a situation like that.
February 25th, 2009 at 12:53 pm
Interesting that this was a school district. School districts are notorious for enforcing their “zero tolerance” policies on the students to ludicrous extremes with shameful outcomes. And they let this employee stay after the allegations were found to be TRUE! Touching inappropriately and asking her to view porn on his computer goes WAY beyond maybe crossing the line with requests for dates or something. He should have been fired.
I wonder what this same SD does when they find a student giving another one an aspirin?
February 25th, 2009 at 1:02 pm
As most school districts deal with unions, there may be more to this story. We do not know what, if any, role the union may have played in the investigative/disciplinary process.
February 25th, 2009 at 1:03 pm
I’m appalled that no one in the school district’s HR Dept. had an issue with using the school district’s computer system to access porn sites, and given a 2nd chance when confirmed this occurred
February 25th, 2009 at 1:57 pm
I agree with all comments suggesting this person should have been fired on the spot. I think all companies (big or small) should have zero tolerance for any type of harassment (sexual, racial, religious etc.). Even if the impacted employee had not quit, what controls does this organization have in place to ensure its employees are not downloading porn on company time? When businesses/organizations don’t properly address harassment issues/offenses, it really appears like the businesses/organizations condone the behavior.
February 25th, 2009 at 2:19 pm
When I was the HR Assistant to the HR Manager years ago, I worked alone in one building for a couple of hours….a courier would come over to bring the mail over. One day he grabbed me and kissed me on the mouth. I told my boss, HR Manager, what had happened and how concerned I was becasue I was in the building by myself. My HR Manager said I should just tell him to stop. THe guy wasn’t disciplined at all. Luckily, he did stop but he made me uncomfortable every time I was alone and he came by. Most of the time, I would hurry and pick up the phone and pretend I was talking to someone.
February 25th, 2009 at 6:00 pm
Jeez, you guys are tough! Or are you just politically correct?
What were the comments? Where and how was she touched? What was the nature of the porn? Was it a risque cartoon, or hard-core sex? Would ordinary people be offended, or is this woman overly sensitive?
Until you know the facts, how can you decide a mere allegation of harassment is sufficient to fire the guy first time out of the box?
Suppose the first instance was one of those cases where you do act on the woman’s perception of verbal harassment, but the verbalizing is not serious enough to fire the person if he stops the behavior?
The law does provide for that, you know. Around here we call it “getting one free shot.” Okay, now all you PCers can start screaming and calling me names!
February 25th, 2009 at 8:46 pm
WHEN I WAS A SUPERVISOR FOR A SMALL NON-PROFIT, THE IT MANAGER FOUND PORN DOWNLOADED ON AN EMPLOYEE’S COMPUTER. WHAT A PERSON DOES ON THEIR OWN COMPUTER & TIME IS THEIR BUSINESS, BUT THERE IS NO ROOM FOR THIS IN THE WORKPLACE. BASED UPON THE FACTS, I FIRED HIM BECAUSE THERE WERE TOO MANY PROBLEMS THAT COULD HAVE SURFACED IF THIS BECAME PUBLIC (EITHER WITH THE OTHER EMPLOYEES OR THE GENERAL PUBLIC).
February 26th, 2009 at 9:43 am
to Ralph:
I was on the receiving end of sexual harrassment when an old guy grabbed me and kissed me on the mouth when he was delivering the mail to my office….no one else was in the building at the time. NOTHING WAS DONE by my boss…the HR Director. He said me telling him to stop was enough. What would of happened if he would have raped me the next time he came over??? Would have screwed up my life, but hey, he would of had his second chance.
February 26th, 2009 at 12:03 pm
Ralph it seems to me that you are the one calling names (“PCers”)
It was stated that an investigation was done and that the allegations were found to be true. Further, we were told the actions were sever enough to result in suspension and threat of loss of job. So we have to assume the woman was not “overly sensitive”. Folks here were simply questioning why they didn’t follow through with termination when the behavior didn’t stop. Why the second warning?
Porn is porn, whether drawn or photographed. Most organizations have very specific restrictions on use of their computer systems. Inappropriate touching is inappropriate touching. No one individual has the right to touch ANY part of my person without my consent.
Again, I think that because this was a school district the union had to have had some hand in the process, and that may have been why a “second chance” situation arose. We all know how much more difficult it is to discipline or terminate a union employee, despite the circumstances.