Part 2: What to Say (or Not to Say) When Someone is Fired for Sexual Harassment

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In this multi-part series, we are addressing an aspect of dealing with sexual harassment allegations: what to say (or not to say) after you have to let someone go because of sexual harassment. The first post set up a scenario where someone has been fired for sexual harassment, and discusses how to set up the termination and what can be said inside the organization. This post addresses how to approach requests for information from future employers and the public.

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.