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Ask HN: How do I deal with the first sexual harassment complaint at my startup?

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Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#501

Post by kelukelugames »

tptacek wrote: post #223
logfromblammo wrote: post #144

Earlier quoted context omitted.

That is not the consensus. The consensus in the grown-up business world is to protect the company . Protect the company from the sexual harassment suit, and protect the company from the wrongful termination suit. As such, no one will ever fire for cause on the basis of one incident report on a single interaction that occurred away from the workplace. But you can be certain that everyone in the building gets additiona…

What "wrongful termination" suit are you referring to? Please be as specific as you can.

http://www.schwartzandperry.com/Blog/2014/October/Microsoft-...

Company fired an employee without verifying harassment. Turned out harassment was fabricated.

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#503

Post by kelukelugames »

tptacek wrote: post #363
maxcan wrote: post #362

Earlier quoted context omitted.

Yeah, my point is that there are better ways to avoid lawsuits than just firing anyone the minute someone shows an inappropriate text message.

This isn't responsive to what I just wrote. Not terminating is what risks the lawsuit. Terminating forecloses on that lawsuit.

Because of bad luck, I know way too much about employment law. Ongoing harassment is required for the legal definition [1]. The company only has to demonstrate reasonable effort in addressing the problem to avoid a lawsuit. So termination after a MILF comment is overkill in the legal sense. The cases that make it to court are god awful. [2]

The variables are how badly does the employer want to avoid negative press and an EEOC investigation. On the other hand, lawyers wouldn't take a case on contingency unless the litigant had a chance. In fact, it's a litmus test. Don't sue for discrimination if no lawyer will take the case on contingency. For example, Ellen Pao had to pay for her own lawyers. I chatted with my employment lawyer friends and they said her case was weak.

[1] https://www.eeoc.gov/laws/types/sexual_harassment.cfm

[2] https://www.eeoc.gov/search/search?q=sexual&btnG=Search&entq...

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#504

Post by tptacek »

kelukelugames wrote: post #503
tptacek wrote: post #363

Earlier quoted context omitted.

This isn't responsive to what I just wrote. Not terminating is what risks the lawsuit. Terminating forecloses on that lawsuit.

Because of bad luck, I know way too much about employment law. Ongoing harassment is required for the legal definition [1]. The company only has to demonstrate reasonable effort in addressing the problem to avoid a lawsuit. So termination after a MILF comment is overkill in the legal sense. The cases that make it to court are god awful. [2] The variables are how badly does the employer want to avoid negative press an…

My experience has been the opposite. I've probably been much luckier than you (I've never been a party in a suit), but I've watched companies settle up over weak-seeming claims.

It's not just ongoing harassment, but also claims of retaliation when someone who has complained about sexual harassment is later terminated for (ostensibly) other reasons.

Pao's case was extraordinarily expensive.

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#505

Post by tptacek »

kelukelugames wrote: post #501
tptacek wrote: post #223

Earlier quoted context omitted.

What "wrongful termination" suit are you referring to? Please be as specific as you can.

http://www.schwartzandperry.com/Blog/2014/October/Microsoft-... Company fired an employee without verifying harassment. Turned out harassment was fabricated.

Did you read the actual filing? Mercieca sued for discrimination and defamation. He was not simply fired after a false sexual harassment claim.

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#506

Post by [deleted] »

nickpsecurity wrote: post #489
lotharbot wrote: post #383

Earlier quoted context omitted.

As a professional educator (at many different levels -- a college TA, a museum educator with K-12 programs, and working in an elementary school) the expectation I was given was to never be alone in a place that isn't publicly visible with any student under the age of 18, of any gender, ever. With students over the age of 18, there was still a strong expectation to keep student-teacher interactions semi-public. (I am…

It's a smart move given what I've seen. The sad thing is that some of the best innovators started with one-on-one instruction from teachers that recognized their potential. Many people are also private or in a situation where their social circumstances might make them be more private about the research/project than usual. So, such policies reduce liability but probably have a cost to society. I thought about surveill…

[deleted]

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#507

Post by tptacek »

jcrben wrote: post #475
tptacek wrote: post #356

Earlier quoted context omitted.

I believe the threat you're invoking --- from the accused harasser to the employee terminating using their privilege as an at-will employer, to sue for damages stemming from that termination --- is fictitious. Could you clarify by citing a case with this fact pattern which actually made it to trial? * At-will employee * No special contract terms tied to for-cause termination * Disputed or false accusation of harassme…

I'm not sure what you're saying, but if you're asking about how an at-will harasser could win a wrongful termination case, it's worth noting that "at-will" does not actually mean you can "fire whenever for no reason". There are various exceptions; the most open-ended is probably an implied contract or an implied covenant of good faith. You might look at https://en.wikipedia.org/wiki/At-will_employment#Covenant_of...…

Unless you're in Montana, as a practical matter, yes, "at will" means "you can fire whenever for no reason".

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#508

Post by kelukelugames »

tptacek wrote: post #504
kelukelugames wrote: post #503

Earlier quoted context omitted.

Because of bad luck, I know way too much about employment law. Ongoing harassment is required for the legal definition [1]. The company only has to demonstrate reasonable effort in addressing the problem to avoid a lawsuit. So termination after a MILF comment is overkill in the legal sense. The cases that make it to court are god awful. [2] The variables are how badly does the employer want to avoid negative press an…

My experience has been the opposite. I've probably been much luckier than you (I've never been a party in a suit), but I've watched companies settle up over weak-seeming claims. It's not just ongoing harassment, but also claims of retaliation when someone who has complained about sexual harassment is later terminated for (ostensibly) other reasons. Pao's case was extraordinarily expensive.

Retaliation is a different beast. It's human nature. A poorly trained manager's first instinct is to retaliate. If they don't retaliate illegally then they will do it in some other way.

After investigating, the EEOC shares their evaluation. So both parties should know how strong or weak the claims are. The requirements for a case are stringent, as you can see from the previous link. This is because EEOC understands the damage done by frivolous cases.

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#509

Post by Gratsby »

ChrisDutrow wrote: post #246

As someone who's done a lot of hiring and firing, the part that stands out most to me is not the sexual harassment part, but the fact that he was just hired and already is causing problems. Normal people tend to be cautious and respectful at first. By immidiately jumping in and pushing boundaries, this person is demonstrating that he doesn't care about your company, he doesn't care what you or anybody there thinks ab…

I second this sentiment. Especially someone in a biz-dev role. Can you imagine if he crossed the line like this with a customer? It's not something a budding business wants to ever deal with.

Someone who feels casually about this kind of misconduct with another employee - in my mind is someone who would feel casually about lying on an expense report and other things you just don't expect people to do.

I suspect the lawyers would have you fire for no cause, give a good reference, support unemployment benefits, and potentially offer a small departure package. None of that is really necessary - when confronted with the facts, nobody in their right mind is going to say "I didn't deserve to be fired. I'm going to sue!" But in the end, protecting your business is your highest priority.

I also get the sense that this is your real desire.

Re: Ask HN: How do I deal with the first sexual harassment complaint at my startup?

#510

Post by giis »

>I've seen the evidence of the texts in question.

Is this smartphone? If so, ensure its not a rooted device, where users can insert/delete things as they want.

-- Let me add another view. Involve HR and talk to him first. If he admits truth then ask him to resign. If he didn't accept, listen to his version of story and ask him for proof. Then decide.

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