After a sexual harassment report, we investigated and found no sexual harassment occurred, although a boundary violation did, which is against our policies. We wrote up the accused for a boundary violation, and informed the accuser that we did not find the conduct was sexual harassment, but that it was a policy violation. Now, the accuser is disappointed and quite angry and made a specific, written threat against the accused, indicating where and when an attack on the accused would be made by the accuser's brother. The accused walks to and from work and has called the police. We don't want to be sued for wrongful termination if we fire the accuser, but this violates our prohibition against threats of violence in the workplace.
It sounds like you did everything right. You received a report of sexual harassment. You investigated it, and that investigation led you to conclude that a boundary violation had occurred, which violated your policies. You disciplined the accused for the boundary violation.
Now, you have a new issue – a specific, written violent threat by the angry accuser against the accused – a threat which identifies the time and location of an attack, and by whom, on the accused, who walks to and from work. You may be concerned about a wrongful termination/retaliation claim if you terminate the accuser, but the documented, specific threat of violence against the accused is a serious violation of your safety policies and will most likely not be viewed as retaliation against the accuser for making a sexual harassment report.
Always discuss termination matters with your legal counsel.
Jack McCalmon, Leslie Zieren, and Emily Brodzinski are attorneys with more than 50 years combined experience assisting employers in lowering their risk, including answering questions, like the one above, through the McCalmon Group's Best Practices Help Line. The Best Practice Help Line is a service of The McCalmon Group, Inc. Your organization may have access to The Best Practice Help Line or a similar service from another provider at no cost to you or at a discount. For questions about The Best Practice Help Line or what similar services are available to you via this Platform, call 888.712.7667.
If you have a question that you would like Jack McCalmon, Leslie Zieren, or Emily Brodzinski to consider for this column, please submit it to firstname.lastname@example.org. Please note that The McCalmon Group cannot guarantee that your question will be answered. Answers are based on generally accepted risk management best practices. They are not, and should not be considered, legal advice. If you need an answer immediately or desire legal advice, please call your local legal counsel.