What to Say (or Not to Say) When Someone is Fired for Sexual Harassment

It is Friday at 5:00 p.m. and you’ve just had to terminate a supervisor in your organization after an internal investigation revealed he had engaged in sexual harassment. The termination meeting went about as well as could be expected—the supervisor was angry, but you were on solid ground under the company’s discipline policy. You leave work feeling confident the situation has been handled.

But when you walk into your office on Monday morning, you’ve got three messages waiting. The first is from a local reporter, who is doing a story on the #MeToo movement in your industry, and has recently heard about how a top-level employee at your organization was fired for sexual assault. The next is from a manager who is wondering what to say to his team about the firing. Finally, the former supervisor you just fired has apparently already applied for a new job and his prospective employer has called for a reference. How should you respond?

If you feel overwhelmed by this scenario, you are not alone. Properly handling sexual harassment allegations is difficult and legally risky. And even if you are confident the complaint was properly addressed—for example, by terminating a problem employee—a big legal problem still remains: what should the organization say after someone is fired for sexual misconduct? This post explores some of the sticky legal issues in this area, and discusses the many factors that come into play when making post-termination statements.

Setting Up the Termination Properly

1. Be wary of a wrongful termination claim from a former employee. Provide the accused employee with due process before a finding is made. In cases where the allegations are disputed, it is important for the organization to perform a thorough investigation and consider all the relevant evidence, before reaching a finding about the allegations and taking action. An individual facing allegations of sexual harassment may well have committed those offenses. If so, he or she should be disciplined appropriately. But if a finding is not reached, terminating the accused anyway can present legal problems of a different sort.

2. Also avoid a defamation claim. Simply firing the employee and then reporting that the employee is a harasser can lead to liability and trouble for the organization. Making statements about allegations before they are confirmed is not good practice, both from a legal liability perspective and considering simple fairness to the accused. Publishing allegations before they are investigated can stigmatize an individual, follow the person forever, and lead to liability for the organization in the form of defamation or similar tort lawsuits.

Telling the Organizational “Family”

Customers, vendors, fellow employees or other people who worked regularly with the former employee may be some of the first to ask what happened. This organizational “family” may feel they have a right to know what is happening in their organization. Some may have been involved in the internal investigation that lead to the termination and desire an update. The organization may want to reassure those who remain that the company was tough on sexual harassment. Or speculation may be circulating about “the real reason why so-and-so was fired,” and you may need to do damage control.

When making statements to this group, consider the following issues:

3. Consider designating an internal spokesperson. Control information by ensuring any statements are handled by a designated HR spokesperson, in collaboration with other key higher-level employees. In general, it is better to have the message communicated by one office or individual, rather than leaving it up to a larger group to disseminate an inconsistent message with varying levels of detail. If the organization is speaking, whether through HR, the President, or a high-level supervisor, it is potentially making a record that could be used in future litigation.

4. Be cautious about how much is said, and to whom. In terms of how much to say, in general, an organization can say a bit more internally than it should to outsiders. There is a different legal relationship between current employees and their employer than those outside that circle. And employers may have good reason to give out some information, particularly in the current climate. That being said, there is reason to exercise restraint. Your ability to require complete confidentiality may be limited due to the National Labor Relations Act, which generally allows employees to discuss the terms and conditions of their employment with each other and outsiders. Be sensitive to the fact that internal statements—particularly those made in writing or recorded—can quickly find their way outside.

The appropriate amount of information should also vary depending on the different stakeholders involved. A general company-wide statement may look quite different than a memo to a small group of supervisors. And the alleged victim is entitled to a brief summary of whether her allegations were accepted, even though not to details about employee discipline. One approach may be to provide sexual harassment training that addresses similar situations, without mentioning names. When in doubt, and particularly if a lawsuit seems possible, consult legal counsel.

5. Don’t give out false information. It is not a good idea to make up an excuse for why someone was fired. Not only does this have the potential to create confusion (and backlash if it gets out), but it can backfire later in the event of litigation. For example, if a company tells the remaining employees that a former supervisor was fired for missing work (when it was really the sexual harassment that was the cause), it may create confusion and prolong litigation when the motivation behind the termination is examined.

When a Future Employer Comes Calling

Another related question arises when a former employee’s new potential employer contacts your organization seeking a reference for the employee who was terminated for sexual misconduct. How much can be shared?

1. Put policies in place in advance to address the issue. With proper planning, employee references is one area that can be dealt with uniformly for all employees, before the employment relationship ends. However, this usually defaults to the minimum statement that the person worked there: name and dates of employment. In some circumstances, it may be possible to address this issue directly with the individual employee upon termination.

2. Consider the risks involved in a “duty to warn.” Some ask whether a former employer has a duty to inform a future employer about the known proclivities of a former employee. In a few contexts—where there has been child sexual abuse, for instance—the former employer’s failure to warn or give notice to a future employer could lead to litigation if someone at the new employer is later harmed. However, this usually is limited both to scenarios where there has been serious crime and where there is a very close organizational connection between the old and new employers. While the “duty to warn” concept is being pushed, criminal charges and civil lawsuits will probably continue to be the appropriate way to handle such matters. One reason for this is that employers can terminate at-will employees for any reason, and even if the employee was terminated after an investigation following best practices, the employer likely only made a reasonable finding to a preponderance of the evidence. It offends our society’s notions of justice that an informal proceeding like this will follow someone to other settings. That being said, this is an area that is constantly evolving and should be monitored as it develops.

The Public’s Right to Know?

One of the most striking shifts connected with the #MeToo movement is how formerly internal HR matters have quickly become matters of public concern. With this shift toward the public demanding more transparency from organizations, several issues for employers arise. Is the organization legally obligated to inform the public? Even if not, does the “court of public opinion” require disclosure?

1. Private companies generally do not have to publicly disclose internal HR matters. Generally, private organizations are not required to inform the public about internal employee discipline. There is no legal obligation to confirm or deny allegations of sexual misconduct to the public. Not only that, but there is no legal right to share internal employee affairs, meaning that the organization could face a lawsuit for defamation, invasion of privacy, or other similar claims from a former employee whose discipline is widely disclosed.

2. Seek counsel before making a public statement. But sometimes, public pressure to make a statement pushes organizations in that direction. There are several considerations when making a statement. One consideration in this climate is that allegations may go public whether the organization likes it or not. Confidentiality is hard to keep in this context. There may be some value to making a statement to clarify as a response, but it shouldn’t be done without counsel. The exact language used may be key.

As previously noted, a claim against the organization for how it handled the sexual harassment, or how it handled the termination, could be coming. Any statement needs to be carefully considered in light of how it might impact the employer’s position in court. Again, advice of counsel is important.

When in Doubt, Seek Advice Before You Speak

Because of the myriad legal issues that might pop up after a termination, particularly if sexual harassment or other sexual misconduct is involved, making statements is not a DIY exercise. Particularly for high-profile or serious cases, seek legal counsel to evaluate the liability risk of making a particular statement, and check with a media consultant to get the messaging right. An upfront investment may help avoid a major crisis.