Is a company required under federal law to fire a harassing employee?

No, the law does not necessarily require this, although many companies often take this dramatic step to resolve a harassment situation.  Yet as the Fifth Circuit U.S. Court of Appeals recently ruled, disciplinary actions less than discharge can often satisfy the law’s requirements and protect an employer from legal liability.  See Williams-Boldware v. Denton County, Texas.  Given the broad range of conduct that employees may perceive as harassing, employers should be aware of the options available for resolving harassment complaints.

The word “harassment” is often used (and overused) nowadays, with various meanings.  Usually, the term simply means unwanted contact, particularly once the object of the contact makes known his or her desire to be left alone.  In the area of employment law, however, harassment has a narrower meaning.  To be actionable, harassment must be offensive to a protected class (these include race, national origin, gender, disability, age and religion), and it must be sufficiently severe or pervasive to alter the terms and conditions of one’s employment.  Thus a “workplace bully” does not necessarily violate the federal civil rights statute.  The law has long recognized that merely employing such an “equal opportunity harasser” (who annoys everyone without offending members of one group in particular) is not actionable harassment.

In situations in which the harasser targets members of one protected class or insults a protected group, the law does not necessarily impose strict liability on employer or harasser.  If the harasser is not a supervisor or does not use supervisory powers to take tangible actions (such as firing or demotion) against subordinates, the company can avoid liability by having an anti-harassment policy in place and acting to remedy the harassment in a quick and effective way.

In the Williams-Boldware case, the employer almost immediately responded to an employee complaint of harassment, and disciplined the alleged harasser.  Among other things, the employer investigated the complaint within 24 hours, required the alleged harasser to apologize to the victim in person, transferred the victim to another division, and reprimanded the alleged harasser and required that he attend diversity training.  When the victim complained about her limited subsequent interaction with the alleged harasser, the employer fully investigated and remedied these complaints.  Despite its efforts, the victim successfully obtained a jury verdict against the employer for emotional distress relating to the racially insensitive comments.  In overturning that verdict, the appeals court confirmed that the employer was not required to fire the alleged harasser.  In particular, the court noted that the employer consulted with the victim when taking remedial action, and that she received the personal meeting with the alleged harasser that she requested.

As this case shows, employers must act quickly and decisively to eradicate unlawful harassment and prevent retaliation.  Victims of harassment can insist upon a removal of any lingering effect upon the workplace.  Nevertheless, the law does not impose a “one-size-fits-all” approach.  It allows employers flexibility in dealing with the specifics of the situation based on the context, nature and extent of the harassment.  (In some instances, reacting too harshly may allow the alleged harasser to bring claims.)  Thus consultation with a qualified attorney is necessary to address the unique circumstances of each individual case.

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