Can we fire victim of harassment who doesn't complain?

I annually have my employees sign a waiver saying that "all employees should have a chance to notify the company if they have been discriminated against or been sexually harrassed without fear of losing his or her job. Please sign below if you DO NOT feel you have been discriminated against or sexually harrassed. Do not sign below if you feel you have been discriminated against or sexually harrassed." For the first time, one of my employees did not want to sign it. The first part of the waiver states our policy that is required of our employees if there is a claim: 1) they go to the accused and confront them; and 2) if they do not amend their behavior, the issue will be investigated by a disinterested third party; 3) if the claim is proven to be valid, action will be taken. By her not signing, I guess we must now force the issue and ask if she has followed the policy (which she signed last year) above. If we can show that she has not followed the policy and has first gone to other employees discussing accusations, can we terminate her for violation of our policy? Our policy states "It is most important that rumors or inferences not replace this specific policy of confrontation and correction...we will not tolerate unsubstantiated rumors and inferences." I appreciate your assistance.

Rita Risser's Response:

You certainly have an interesting approach to all this. I know that Judge David O'Brien suggests such a waiver, but yours is the first one I've seen in action. Yours is the only "rumor control" policy I've seen anywhere. On it's face, I can't think of a reason why it would not be legal. The tough part comes in enforcing it.

First, of course, you don't know if she told anybody; she may have kept it to herself. And if she told outsiders (family, friends, therapist), you cannot enforce the policy against her because that could be invasion of privacy.

I do have a problem with your sexual harassment procedure. Although you certainly can and should encourage people to confront their harassers, legally you can't force them. Nor can you force them to file written complaints. Any time an employer receives notice of harassment, it has a duty to investigate.

Since any high-ranking person could be accused of harassment, it is important to give complainants as many options as possible. Yours does not. Instead it's a dead-end. If a victim can't confront her harasser, she has nowhere to go except to friends, whether inside or outside the company.

If this employee did tell other people at work and did not follow your policy, I do not recommend reprimanding her. That could be seen as retaliatory. Instead, I suggest you hire an outsider to begin the investigation. If the allegations are severe, get yourself a good lawyer fast.

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