Who won this case? Employee says ‘3 strikes’ policy unfair
April 29, 2008 by Jim GiulianoPosted in: Behavior, Communication, Complaint investigation, Employment law, In this week's e-newsletter, Latest News & Views, Sexual harrassment, Who won?
In this real-life case, a supervisor uses a “3 strikes” policy for employees who are accused of sexual harassment, and a victim sues the company over the policy. Who won?
The facts:
A male employee got accused of sexual harassment by two different female employees. An informal investigation showed there was a likelihood that the man did harass the two women. As a response, the supervisor told the man that one more such incident would result in termination. The man did engage in a third incident with another woman, and he was fired. However, the third victim sued the company for not responding quickly enough and allowing the third incident to take place.
The employer said:
The supervisor’s approach was a common one, and was used to give the male employee ample warnings that repeat offenses wouldn’t be tolerated.
Who won the case?
Answer: The employee.
Why: A judge brushed aside the employer’s argument and noted that nowhere is it written in stone that a person engaged in sexual harassment – or another offense, for that matter – should get three chances, or “strikes.”
In fact, letting the offender know that he has more than one chance also lets him know that there’s a tolerance level for his behavior, while sending a signal to potential victims that they’re fair game until the offender uses up his chances.
The court didn’t rule out the legality of some three-strikes policies, but said they were inappropriate when potential victims were involved.
Cite: Engel v. Rapid City School District.
Tags: 3 strikes, sexual harassment, termination
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May 5th, 2008 at 1:17 pm
This is another example of onerous jurisprudence. Why, in this case, is a company held to a higher standard than most of the criminals now in the legal system?! Your Honor, how many rapists and thieves did you let go? How many convictions got tossed because of a “procedural error?” While I may agree that after two such occurences, they should have terminated the employee, at least they HAD a policy and seemed to be consistent about it.
May 5th, 2008 at 3:01 pm
It would seem to me that this was employee winable because of lack of adequate disciplinary action with the prior 2 complaints. It would appear that in doing a superficial investigation, the employer failed to show adequate effort at preventing the 3rd incident. Had an investigation shown those prior reports to be unfounded, I would think that this could have had a different judicial outcome.