Harassing Laws

A male forklift driver grabs a coworker's breasts and says, "Yep, they're real." She complains to their supervisor. An investigation of the man turns up other allegations of sexual harassment. The company fires the forklift operator.

The company has narrowly avoided a sexual-harassment lawsuit by the woman. But it has also just set itself up for a wrongful-termination lawsuit by the forklift driver. This case actually happened in a Wisconsin Chrysler plant. The man sued, won, and forced Chrysler to reinstate him.

During the 1980s, feminists fought for increased legal protection against sexual harassment, winning recognition of this problem as a violation of federal civil-rights laws and a U.S. Equal Employment Opportunity Commission ruling that employers must take "immediate and corrective action" when an employee complains of harassment by a co-worker.

At the same time, labor lawyers were fighting for and winning changes in state laws regarding employment to make it more difficult to fire employees. These two sets of policies are now coming into conflict.

Stephen Tallent, a Washington, D.C., labor lawyer, told The Wall Street Journal that when accused sexual harassers are fired, in "about one in five cases you'll get at least the threat of a wrongful-termination lawsuit."

In the Wisconsin case, the court ruled that a suspension was adequate punishment for the harassment. This follows from the doctrine that an employee should be fired only in the face of repeated violations of company policy. This policy means that companies must tolerate not only a certain amount of chronic lateness or absenteeism before firing someone but also repeated instances of sexual harassment.

In other states, courts have set a high standard of proof that employers must meet before firing someone for sexual harassment. The end result of both of these changes in state law is to make it more difficult to fire sexual harassers.