Over the past few months, I have read blogs and opinion columns about whether alleged sexual harassers have been proclaimed guilty by their employers and the media without due process. That is, are companies rushing to fire bad actors in the wake of the “me too” movement unfairly?
Some accused harassers are taking a play from Twisted Sister, saying “We’re Not Gonna Take It” and are seeking legal counsel to help. In the past, lawsuits filed by alleged harassers have been few and far between, but a new case filed against HSBC bank a few weeks ago in New York, plus few threatened lawsuits we have seen, make me wonder if this will be a new trend.
Let’s talk about what due process entails. The term “due process” is a legal term found in the Fifth Amendment to the U.S. Constitution which states that the government cannot deprive citizens of “life, liberty, or property without due process of law.” As would be expected, dozens of Supreme Court cases clarify the procedural and substantive elements of “due process.” Notably absent is a due process requirement in the private employment context.
Employers have more flexibility to set parameters for employees than, let’s say, a judge has in a criminal proceeding. And that makes sense. But employers can still face liability for an inadequate investigation as discussed by my colleague Jeff Polsky. Specifically, the standard for investigating harassment claims in California was established in the 1998 case Cotran v. Rollins Hudig Hall International, Inc., 1998 Cal. LEXIS 1 (January 5, 1998). The court established employers must simply have a “reasonable and good faith belief” supporting any adverse action taken against an employee. Given that employment lawyers are seeing the number of harassment claims in the workplace rise, employers should also be prepared for increased push back by alleged harassers. Some of the ways employers can protect themselves, their workplaces, and ensure an adequate investigation and their own version of “due process” are found here.