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Accusations in the #MeToo era: How companies handle complaints

Employment law attorneys and HR experts say suspending or firing an accused employee even without hard proof of misconduct is a safe — and legal — move.
Image: #MeToo Rally
People carry signs addressing the issue of sexual harassment at a #MeToo rally in New York City on Dec. 9.Stephanie Keith / Getty Images

In the fast-paced era of the #MeToo movement, the number of high-profile men accused of sexual misconduct keeps growing — and some of the accused have lost their jobs seemingly instantaneously.

While many have admitted, or partially admitted, wrongdoing, others — including talk show host Tavis Smiley, radio host Garrison Keillor, New Yorker political reporter Ryan Lizza, and former Rep. Harold Ford, Jr. — have denied the claims against them. Yet they've still been fired by their companies.

That kind of corporate response may seem harsh, but employment law attorneys and human resource experts say terminating or suspending an employee who faces unproven allegations of sexual harassment is often the safest decision a company can make to protect other employees. It's also completely legal in most states, they add.

"Employers can terminate for any reason at all, as long as it's not a discriminatory or retaliatory reason," said Cynthia Calvert, a Maryland-based discrimination lawyer and president of Workforce 21C, a consulting company that helps employers advance women.

Image: #MeToo Rally
People carry signs addressing the issue of sexual harassment at a #MeToo rally in New York City on Dec. 9.Stephanie Keith / Getty Images

That's due to at-will employment, a contractual term that gives employers the right to fire employees without an explanation or warning, and employees the right to quit without reason.

While there is a chance an employee could try to sue a company for firing them, Calvert said there's greater danger in keeping the employee on staff after an accusation, even if the evidence against them isn't crystal clear.

"If it was truly a he said, she said [situation] with absolutely no corroborating evidence, I would tend to still separate the accused from the company, suspending or terminating them. And the reason is, I would have to be weighing the legal risk, and the legal risk of getting it wrong when a woman has complained of sexual harassment is huge," she said.

In any situation where a woman alleges misconduct, she should be protected by her company, said Phyllis Hartman, a human resources consultant in Pennsylvania.

Hartman cited the example of Harvey Weinstein. How much the HR department at Weinstein's company knew is still unclear, but she says any hints of misconduct should have prompted action.

"Why was he still there? As an HR person, that's what goes through my head," she said.

All companies, whether they are private, public, or non-profit, are held to the same standards when it comes to preventing and responding to sexual harassment. And because almost all are at-will employers, even if the accused is not given the full details of what has been alleged against him, that person can still be fired.

"He doesn't have to be given a reason for his termination. In most cases, if they want to get rid of him, they can get rid of him," Hartman said. "He becomes a liability to the company because there's questions about his behavior."

Parameters for whether an accused harasser gets fired or not often depends on the company. But every company should have written guidelines on what is acceptable behavior in the workplace, said Catalina Avalos, a director with the Tripp Scott law firm in Florida and expert in labor and employment law.

"The first place where a company should start is making sure they have adequate policies and procedures in place so if there is an allegation of sexual harassment, the complainant knows what the procedures are," Avalos said.

She advised companies to go by the Equal Employment Opportunity Commission's guidelines for defining sexual harassment, which states it to include unwelcome advances, requests for sexual favors, and other verbal or physical harassment.

"It is the company's obligation to investigate the complaint and then take corrective action if necessary," Avalos said.

Experts said that such investigations used to take longer — upwards of a month — but now can sometimes be done in only a matter of days because there's frequently a digital paper trail.

"People tend to text each other, send messages to each other, and even send emails that are perhaps inappropriate between people in the workplace," Avalos said.

The investigations can be done internally, but in larger companies, especially if it involves a high-profile person, are usually left to an outside law firm, said Peter Whelan, a Washington, D.C.-based employment law attorney and partner at Bernabei and Kabat, PLLC.

"It's very infrequently a purely 'he said, she said' situation where we're talking about one incident with one employee. Typically they're not just harassing this one person. They've done it before, and there's some sort of trail of victims," Whelan said.

Many women fear coming forward because of the consequences they might face, he said.

"There's a lot of focus on the harassment itself, which is horrible, but an even equally or perhaps larger concern is the retaliation that people face when they do come forward with these allegations, because it's forcing a lot of, typically, women out of their career path entirely," he said.

Kristin Rizzo, an employment attorney in San Diego and incoming president of the San Diego County Bar Association, said the fear of a harasser denying his behavior shouldn't hold back a woman from coming forward, although she should be prepared for that response.

"Denials by the harassers are much more common in the day-to-day sexual harassment cases that I handle on behalf of victims of sexual harassment," she said. "To victims of sexual harassment, I do encourage them to come forward and to report sexual harassment but they need to be prepared for how to come forward."

She suggested reporting the sexual harassment in writing to either human resources or a supervisor or supervisor's supervisor.

"The reason is so that it is framed in the victim's voice so they're not relying on the company's interpretation of their complaint," she said.