“Due process” is a right afforded to U.S. citizens by our Constitution’s fifth and fourteenth amendments. It covers government acts, not those of private citizens or employers. Though we all want a fair shake if we’re accused of wrongdoing in the workplace, unless we’re a government employee or working under a contract (including a union contract), the nature and scope of disciplinary proceedings rests in the employer’s discretion.

With increasing attention paid to issues of sexual harassment, there has been push-back by some claiming that employees accused of sexual harassment should be afforded “due process” before being disciplined or fired.

When a federal, state, or local governing entity is the employer, before being disciplined or fired, an employee has a right of due process (which may include a right to bring legal counsel, hearings, fact-finding, and appeal). There are no such rights in private sector employment, absent the employer’s written agreement to so provide, including a union collective bargaining agreement.

Most people’s jobs are “at will”.  This means an employee may quit for any reason or no reason, without giving notice, and an employer may discipline or fire an employee for any reason or no reason, also without notice, unless the employer’s motivation is unlawful (such as race or sex discrimination or retaliation for informing a government agency of wrongdoing).

While firing a private sector employee accused of sexual harassment may not raise a constitutional issue, even after little or no investigation, there are some common sense and legal issues an employer should carefully consider before acting.

Discrimination law puts a burden on employers to have an anti-harassment policy in place, including a bona fide investigation process, and to make an appropriate decision whether or not to discipline the accused worker based on the findings. This obligation isn’t written into federal or state statutes, but the federal and state courts strongly urge these policies and processes as a way for employers, acting in good faith, to shield themselves from liability, or at least limit it.

Depending on the facts, we believe a public or private sector employer could be sued by a current or former employee on the basis of wrongful discipline or discharge following false accusations of sexual harassment.  Such a claim could be based upon bias against the accused; the employer’s desire to avoid a legal claim by the accuser (i.e., go ahead and fire the accused male employee rather than risk a law suit by an unhappy female employee); a substandard investigation leading to a preordained result; or other similar defects in the process that lead to an improper outcome.

The accused could sue on the basis that the accusation against him (or her) was itself discriminatory, and based upon his (or her) protected class (age, race, gender, religion, disability, other); s/he was disciplined or fired whereas others similarly situated were not; and the process used to determine the outcome was so faulty as to suggest a discriminatory move, including proof of such facts as:

• For an older worker: complaints against a younger employee accused of sexual harassment weren’t investigated at all.

• For a male worker:  a female manager accused of bullying and stalking employees wasn’t disciplined or was disciplined to a lesser degree.
• The employer just went through the motions of an investigation and chose to discipline the employee because s/he had earlier reported the company to the IRS for tax evasion.

In the current economy, high paying jobs with good benefits are increasingly hard to find. Nobody wants to be put out of work on trumped up charges of misconduct, including sexual harassment.  If this has happened to you, or if you believe it is about to happen, you should know that you may have recourse.  While these defenses and cases are not always easy to prove, it could be well worth your time and money to explore your options with experienced legal counsel.

If you have questions about employment discrimination law or think you may need legal assistance — whether you’ve been sexually harassed or accused of it by others — contact the Kingston Law Group.  We are Central Jersey employment attorneys for workers.  Call us at 609-683-7400, or contact us online, to set up a near-term, reduced fee, initial consultation in Kingston, New Jersey.  We will listen to your facts, explain the law, and recommend your best pathways to monetary and social justice.  Call us today. You will be glad you did.