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Comment by patio11 | Hacker News Reader

Lawyer lawyer lawyer LAWYER lawyer LAWYER.

I think the consensus in the grown-up business world is "fire immediately for cause." I would bet substantial money that when you lawyer lawyer lawyer they will advise you to do that and document the heck out of it. The calculus is really, really simple: if you don't, then you will with probability approaching one get this incident or a similar incident cited during a threatened employment practices lawsuit, and your lawyers will sigh and say "OK, settle for $250,000. You can choose to fight it but the odds are not in your favor."

I get that you feel this may cause problems for your innocent employee. If it helps you contextualize this, maybe think of it less in terms of "Our departing employee has transgressed against our innocent employee, who let me into her confidence about that" and more in terms of "Our departing employee demonstrated judgement flagrantly incompatible with professional employment."

Would you be worried about this if he had been embezzling? "I'm just telling you on an FYI basis boss but I don't want to cause social issues." That's not really how we deal with embezzlement, right. You embezzle, you get fired. Immediately. The embezzlement is not a crime against the person who discovers the embezzlement. They're welcome to an opinion on what the best course of action is, but regardless of what that opinion is, the course of action will be a swift firing.

As to messaging to the rest of the company, again lawyer lawyer lawyer, but "X made comments of a sexual nature to another employee. As a consequence, we fired him. If you have questions or concerns, speak to me later. Moving on."

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Oh God, yes, lawyer. And yes, fire him. In regards to OPs confusion about the innocent employees trepidation -- there is a reasonable fear of reprisals here. From you, from others on the team, and from the sexual harasser.

Reprisals are often not easily identified -- they can be subtle and social in nature. What often happens is that the person who reports harassment is then punished because people no longer want to talk to her. They keep her out of the loop on casual stuff, but lots of professional discussions happen in casual contexts. Over time, she gets iced out for reporting illegal behavior.

And then there is the fact that this person who has already shown a marked disrespect for women and a willingness to cross appropriate boundaries will know exactly why he has been fired. If you've ever been on the receiving end of a sustained campaign of abuse and harassment, that is not something to take lightly.

You should do everything you can to make sure she doesn't suffer for having reported illegal behavior, and you should reassure her that you'll have her back in whatever way you can. That might mean working out with her and HR what the best way to move forward is, keeping in mind that she has every reason to think she's going to get screwed over in this process, because that's what happens the vast majority of the time.

I'd say it's actually a huge vote of confidence in you that she brought this to you immediately.

> What often happens is that the person who reports harassment is then punished because people no longer want to talk to her. They keep her out of the loop on casual stuff, but lots of professional discussions happen in casual contexts. Over time, she gets iced out for reporting illegal behavior.

I think this really depends on your team dynamic, and I wouldn't necessarily be concerned about this point (as valid as it is.)

On my team, I know if this happened, the person who reported the harassment would be totally supported. Inappropriate advances like that are just totally not tolerated, and if anything, the team would feel MORE comfortable knowing that their teammate doesn't stand for that crap. There'd be no shunning here. But of course YMMV.

Alas, you don't know what will happen until it does happen.

It could be as simple as "Wow, Joe reported Bob for sexual harassment, but Bob didn't do anything wrong - I was there. Now I have to be extra-careful around Joe to avoid getting reported myself!"

And there you go - Joe is now suffering from "retaliation" and being treated special for speaking up.

That is already happening in many professional contexts though - and without Joe ever having to speak up about anything.

Male professors avoid being alone with female students. Male colleagues refuse to work with or to a lesser extent, refuse to be friendly on any sort of casual level with female colleagues entirely just because of the small risk that an accusation could cost them their job/career. This fear actively harms both genders.

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 male, but female instructors were given the same expectation at every stage.)

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 surveillance cameras as a solution. Then, a headline popped into mind: "voyeuristic professor discovered to have..." Just can't win when the threat is peoples' imagination and desire to find a negative. :)

It is. I even did it briefly a few times when claims were brought against me until things were sorted out. In one example, an attractive and persuasive woman sent a shit-storm of rumors and claims my way through various parties that I quickly traced to her. Fortunately, the people (including women) who knew me were able to spot that they were bogus since the good and bad of my style is well-known. Genuineness occasionally pays off I guess. And the claims didn't fit it.

Further investigation confirmed my counter-claims that she wanted my job and the next promotion after it. Instead of outperforming me, she decided to simultaneously create situations where I looked unfit and sexist with rumors and a clique of buddies backing it up. They'd benefit if she was promoted. She never got fired like the guys do in similar situations in that company but did back-off and quit after upward-movement was cut off.

I agree it harms both genders. Work was never fun during any of these situations as people started practicing self-censorship. Not just me or the men. It's why I fight such non-sense and Codes of Conduct that facilitate it, too. Fortunately, each event was taken care of, people became themselves again, and work went back to productive and fun. Cuz real people are more interesting than fake ones. :)

Finally somebody has said it.

and you know why that is? nothing on the OPs post reveals a clear infringement or harassment IMO.

MILF is borderline a bad way to talk to someone, yet, everyone here is saying: FIRE HIM or FIRE THEM.

It would be harassment if he continued after she said stop, it would be harassment if he groped her, it would be harassment if he talked clearly obscenely about her, MILF is borderline, and yet, everyone is saying, FIRE HIM.

Guys, just give the benefit of the doubt, make it a clear statement that you on the workplace are clearly against any kind of advance that might happen between employees, and that's it.

Asking someone on a date that isn't interested in you is harassment. Calling someone a MILF is definitely harassment. Do you seriously think telling someone in a professional setting that they're a mother you'd like to f--- is not harassment? When asking someone on a date that isn't interested in you is?

Read your HR policies - if you don't, I suspect you'll be in trouble like this someday, based on your attitude towards this.

> Asking someone on a date that isn't interested in you is harassment.

Asking someone on a date when it is apparent that they aren't interested is harassment.

"Asking someone on a date when it is apparent that they aren't interested is harassment."

> Having autism is harassment.

Well, yeah. If you don't fit the standard of "reasonable person", you're going to violate normal standards, and going to be judged harshly for it unless you put a lot of effort in.

>Asking someone on a date that isn't interested in you is harassment.

Wow. No, it's not. Not for normal people, anyway.

Normal person A: "Hey, what do you say you and I have dinner one of these nights."

Normal person B: "Thanks, but no." [TOTALLY OPTIONAL: "I don't think my girlfriend/boyfriend/wife/husband/... would like that."/"I have a strict no-relationships-with-coworkers/vendors/customers/people-I-meet-in-the-gym/... policy."/"That's very kind of you but I'm afraid I'm not interested."/"Please don't ask again and we shall never speak of this."]

Normal person A: "No problem! So, about that [situation-appropriate topic of discussion..]"

A asked B on a date. B was not interested. No harassment was involved.

To be very clear, the above dialogue could have gone (and unfortunately all too often does go) differently. Had A persisted after a clear refusal, that could very easily veer into the territory of harassment. Furthermore (and I know this will be more controversial), B could have messed the above dialogue up too, for example by failing to give a clear and unambiguous "no." Does this place a certain burden on B merely as a consequence of A's unrequited interest? Yes, but part of being an adult is being able to say "no" to reasonable requests from other adults.

Strive be a normal person like A and B and it should be possible to ask someone on a date, or be asked on a date, regardless of context without fear or discomfiture. (Note: situations of extreme power imbalance, e.g. professor/student, boss/subordinate, need to be navigated with extreme care. Normal people refrain entirely, in such situations, from romantic overtures unless and until the mutual interest (it does happen sometimes) is blindingly obvious, and they then scrupulously avoid even the appearance of impropriety, e.g. by waiting until the end of the term, or transferring to a different department, or something.)

>Calling someone a MILF is definitely harassment.

I'm not going to argue there. It's extremely offensive, at the very least. Normal people don't address other normal people, with whom they don't have an intimate relationship, using sexual terms.

For what it's worth, it sounds to me like the female employee in this case was a model Normal Person ("sure as friends in work context" is about as unambiguous as you can get!). If the sum total of the communication had been

A: Could we hang out? B: Sure, as friends in a work context A: May I tell you a secret? B: No, sorry.

I would regard A as a Normal Person as well, and the dialogue as innocuous. But I'm assuming A was inappropriately persistent/insistent (not to mention the MILF part, which is inappropriate in itself) and the dialogue, no doubt, goes on from there. So, yes, fire his ass.

> Asking someone on a date that isn't interested in you is harassment.

How would you know if you don't ask?

I already don't talk to women in tech conferences. Ok I'll use a different axis. The side effect of working hard on promoting women in tech and tracking harassement is prejudices on the innocent men. As a bystander I want to be given the confidence that men who are fired are guilty. I have seen 2 cases of termination of males, I'm the opposite of convinced. I've also seen more women being promoted than men. I've also seen the upgrade of codes of conduct in conferences from "the law" to "the law + we'll beat harassement". There is a lot of prejudice that men are violent, less smart and worse at communication than women. So of course companies and conferences must act on both harassement and increasing women-in-tech; but as a society we must also find a way to prove to males that innocent good-will ones are safe.

As for me, for the moment I'm bitter against the promotion game, I've founded my own company and I'm voting against any progress of women.

> I've founded my own company and I'm voting against any progress of women.

I'm not sure you're going to establish a moral high ground by explicitly opposing the progress of equality... I understand you have concerns and you may feel you've been wronged by "gender aware" policies/attitudes, but I don't think it's very controversial to say that women are historically disadvantaged and we need to work that out in some way, however that may be.

That's the opposite of what we want to happen? It's important to prove males that they aren't discriminated when we act on women's problems.

The thing is, the world is full of people who are abusive or terrible when in private or one-on-one, yet adhere to social norms when in a group. Every woman I know who has reported her rapist or her harasser has had this said to her in some variation--it couldn't happen here, because we're not like that. It doesn't work that way.

I've had conversations with male friends about this that eventually boiled down to, "well, I just don't want to think the people I know and like could be capable of that." Yeah, imagine how much we hate it.

why do you think that it is an inappropriate advance? what is a proper one? I have no info to sustain it being inappropriate other than the OP saying that he was upset by it. And he could be upset by a number of reasons.

Inappropriate would be groping, or very obscene talk, and especially those or continue hitting on someone after she said stop. MILF is borderline.

OP might be upset for other reasons as well.. OP, just consider that.

By calling her a MILF he just said he wanted to have sex with her.

That's obscene and thats's harrassment.

In addition to patio11's excellent advice it's time to get some training on this. Possibly the lawyer you're going to hire can do this. Possibly they can refer you to someone appropriate.

There are very well established procedures for how to deal with this sort of thing. You need to know them. Depending on the size of your company your managers might need to know them too. Hacker News is not the best place to learn them as most people here aren't experts in the field. There are experts that will teach you for a very reasonable fee.

I can't upvote this enough.

Patrick's advice is very sound. (Except, perhaps, for that last bit about what to say in an email to employees -- before sending any such email, please refer to Patrick's earlier, superseding advice to "Lawyer Lawyer Lawyer." Let your lawyer basically dictate what your email will say.)

There are ways of handling this that have been worked out through decades of practice and litigation. This is most certainly not an area to be winging it. And, with all due respect to the thoughtful posts on HN you'll encounter, you should always keep in mind that HN is not a free source of legal advice.

Since this has now happened, you'll want to a) lawyer up; b) terminate the offending employee for cause; c) work with the lawyer to set up some sort of HR training for managers in how to appropriately handle these situations.

It might also be time to reemphasize the employee handbook and make known your zero-tolerance policy towards harassment. (But again, consult a lawyer before doing so.)

Just to add on a bit more you are probably right about "b) terminate the offending employee for cause" but before you do that you almost certainly have to give the employee a chance to respond to the accusations. If you just fire him before doing that you are likely opening yourself up to a lawsuit for wrongful termination.

Yet again, this is something that a lawyer will help you handle correctly.

This is the second comment on the thread I've seen invoking "wrongful termination".

By all means, get your lawyer to confirm this fact for you, but: assuming you had the bare minimum competent legal assistance in setting up your company and its hiring documents, there is practically no such thing as wrongful termination in the US. In particular: if it is lawful for you to fire someone at all, it is probably no less lawful to fire them over a good-faith mistake.

Obviously, there are any number of things you can blunder into with your employment documents that can create a colorable claim for wrongful termination. But the reason everyone uses the same boilerplate legalese employment documents is precisely to avoid these kinds of claims, and to firmly establish at-will employment with no implied contracts of job security.

If you think you have an argument that firing this bizdev guy is legally tenuous, I have bad news for you: in your company, it is also legally tenuous to fire a developer who has only ever managed to push code that rm'd your prod environment.

There are actually some legal gradients here. You are right that the OP almost certainly employs the BizDev guy as an at-will employee and can hence fire him at any time for no reason at all.

However, if he is fired for cause ("Mr BizDev guy. You are being fired because you sexually harassed Jane Smith.") instead of just fired without a reason ("Mr BizDev guy. Your services are no longer needed here. Thank you for your service.") then that cause can definitely be questioned if proper procedures were not followed.

I'm going to keep prodding. I, too, think the "with cause" thing doesn't add much to the solution to the problem --- if only because it just adds drama. But you can fire someone for cause, be wrong about the cause, and that termination can still be lawful.

Can you be more specific about the recourse the terminated person would have in this situation?

OK first off I will 100% admit that I am not an expert in this area and hence could be wrong (going back to the previously agreed upon advice that "Lawyer up" is clearly the right thing to do).

That having been said, I have received training, by a lawyer, about how to manage situations in which a sexual harassment claim has been made. In that training I was told that the accused employee has a right to hear and respond to the claims. Further if you punish them before giving them that chance you could be opening the company up to liability. Especially if you specifically fire them for harassment.

I'm not a lawyer either, but I believe that with the exception of defamation --- getting back to "be careful about the words 'for cause'" --- it's not true that you legally owe an accused employee process before terminating them. I think what you were told was false, or that you misunderstood it. I don't think that the victims of a false harassment claim are entitled to damages for their termination.

I would welcome expert correction here.

The slight research I've done here suggests that from a legal perspective, it's safer to terminate than not, even if you're concerned about the veracity of the accusation.

I'm going to repeat that we're in firm agreement about not firing "for cause". You don't need cause to fire employees you've competently hired. It is definitely legally risky to provide negative references that include accusations of tortious behavior! Minimize drama, by all means.

I think we're pretty much on the same page here tbh. As I also was told, and believe, that being careful about the words "for cause" is almost always the right thing to do. I think it's pretty much only this series of steps that can get you into trouble:

1) Employee A claims that Employee B harassed them

2) Company doesn't put in any effort to hear Employee B's side of the story

3) Employee B is fired "for cause" for sexual harassment. Generally it's also not just the words here. It also comes with things like "no severance pay even though severance pay was typical for other fired employees."

4) It turns out that the original claim was bogus

In this specific scenario, the company could have problems.

I know we're going on and on here, and I want to say that I generally enjoy your comments and am not just trying to be the picky message board jerk I normally am. However:

It is very unlikely that a competent hiring practice will generate implied contracts for severance pay. Employees are not generally entitled to severance. Awarding severance to one employee probably doesn't create an implied contract with other employees.

I keep coming back to this (elsewhere on the thread, too): the reason legalese employment agreements always tend to look the same is that they are designed to settle all these issues up front. I learned this when I had briefly hoped to create a more humane employment contract and employment handbook at a previous job, only to find out that pretty much only a lawyer can write either of those two things.

I think(?) the only thing at stake in a firing "for cause" is a later claim for defamation --- unless the terminated employee has a special contract which entitles them to things like severance unless terminated for cause.

> Awarding severance to one employee probably doesn't create an implied contract with other employees.

I believe that this is incorrect. If you fire 10 employees in a row and they all get severance but then the 11th doesn't they absolutely can hire a lawyer and ask why and start digging into events that lead up to the firing. If it turns out that they were fired for sexual harassment without being given a chance to refute the claims and then it turns out that the claim might have been bogus the company is going to be in a bad spot. And it's probably going to end up paying out a 5 (or maybe 6) figure check to make the problem go away.

(PS: totally understand that you aren't being a picky message board jerk. No worries at all)

I am very, very interested in seeing documentation or expert opinion to back this up, because it implies that you can easily and accidentally create an implied contract for severance simply by offering one-off severance.

That would imply that there's a legal disincentive to offer one-off severance (for instance, for a no-harm no-foul sorry-to-waste-your-time bad hire).

Unfortunately I have no expert opinion to give here. Merely somewhat educated amateur. Certainly at this point we are well into "go talk to an employment lawyer" territory. They could very well contradict what I have said. If that happens I will stand corrected.

I think we agree on the most important points here.

:thumbsup:

I'm curious about a later lawsuit from the harassed employee. Does firing "for cause" provide documentation that you did indeed address the harassment problem, whereas firing because "at will" could be unrelated?

Your last point is something that I've stumbled across before, and something that it seems many folks (especially engineers) don't fully grasp.

As I understand it, even "getting drunk and trash talking a previous employee" in front of the wrong people can be seen as impacting someone's employ-ability, and can land you in some difficult legal situations if you're high up enough. Essentially the only safe thing to say about past employees is nothing.

> Essentially the only safe thing to say about past employees is nothing.

Yes. Also, even from a non-legal standpoint, such as future interaction with that employee or their contacts, whether that may be social, commercial or legal.

Negative commments can't be unsaid and have a funny way of spreading to unintended parties.

I didn't take any employment law classes in law school, and never practiced in that area, so take it for what it's worth.

The thing that would set my potential liability antenna up is the "just hired" part. I have the vague recollection that there are some cases where courts have awarded damages in situations where someone is offered a job, quits current his job, moves across the country, etc., and then has the offer rescinded or is almost immediately let go. Good faith might well cure any potential problems, but if it were me I wouldn't be 100% confident just because I knew I was in a generally at-will state.

Also, in response to something that came up further down the chain: at issue in a for cause / not for cause firing decision is eligibility for unemployment. When an employee collects unemployment it impacts the rates the employer pays going forward.

Oh, good point, re unemployment.

(Again: I think "for cause" is taking the drama a step too far).

Are you thinking of promissory estoppel? I'm not a lawyer by the way.

Yep. You can read more about these things at Ask A Manager (askamanager.com) and a continuous theme is that everyone is scared of wrongful termination, but that's really quite rare in the US. It involves breach of employment contract. (Lots of similar misconceptions about "protected class" as well.)

> there is practically no such thing as wrongful termination in the US.

This is true.

However, there is nothing also that stops individuals from filing costly "wrongful termination suits" against a company.

In my little slice of the managerial world, we spend time with HR to fully document performance lapses, ensuring we have written statements clearly indicating expectations and whether they are met, solely because if we were to be sued, we could show enough evidence that this individual was terminated because of a lack of performance, despite being given reasonable time to take corrective measures.

If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits".

In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully".

In the US, unlawful termination occurs:

* When it contravenes an explicit clause in your employment contract or an implied contract you accidentally created.

* When it has the effect of discriminating against a protected class.

* When it violates the ADA.

Employers in the US generally have no obligation whatsoever to provide "reasonable time to take corrective measures". Things like PIPs have two purposes:

* As an attempt to bulletproof firings that target ostensible members of a protected class

* As a humane / bloodless way of notifying employees that they're about to be fired and should start looking for a new job.

> Employers in the US generally have no [legal] obligation whatsoever to provide "reasonable time to take corrective measures".

They do, however, want to CYA.

> In fact, "wrongful termination" doesn't mean "terminated unfairly". It means "terminated unlawfully".

And "unlawfully" is determined by the US Courts.

> If you believe this, it's not safe to fire anyone --- all of them could "file costly wrongful termination suits".

If by "safe" you mean "safe from litigation" then yes, that is a risk you take when terminating an employee. I'm certainly not advocating against firing people. I am saying that in my experience, I have to work with HR to have sufficient documentation.

Can you point to the law you're concerned might be violated in this scenario?

No law that I can think of.

Maybe some sort of edge gender discrimination, or perhaps in case this guy is some nymphomaniac and has a documented mental condition. Speculating wildly.

We're assuming the business dev person is not a protected class (basically your run-of-the-mill white bro).

He could be a veteran, or a minority, or disabled.

Many large companies use PIPs as a default for poor performance prior to firing. The frustrating thing about it is that a poor performing worker, who shows up at the office, but does zero work, is likely to bounce around in the PIP system for 12-18 months, collecting a paycheck, before you can terminate them. If they're smart enough to do the bare minimum to satisfy the PIP, they can go back to doing nothing once the PIP is over and repeat this cycle for a few years before they eventually get terminated.

The reason large companies do this for everyone is that over 50% of the population is a protected class (female, minority, veteran, etc), and large companies want to reduce all risk as much as possible, so therefore, you get mandatory PIPs.

Something egregious like this (sexual harassment) definitely warrants an immediate termination. Unfortunately, I've worked on teams with members that did zero work and had an 18 month PIP. It kills morale in unique and incredible ways for the rest of the team.

> Something egregious like this (sexual harassment) definitely warrants an immediate termination.

Why should one incident that occurred outside of work, warrant termination?

Are our private lives subject to the scrutiny of our employer?

Is it sexual harassment if the victim doesn't actually feel harassed?

Yes, if your private life involves making unwelcome and rude sexual advances to other employees, it warrants immediate termination. Employees who do this present a grave risk to the company in terms of legal expense, PR, and recruiting.

Generally, I agree with what your statement. If you sexually harass others in your personal life, and your employer finds out about it, it's prudent to manage them out.

In this case, the employee handled the unwanted advances herself, and later told the OP about it. It's not clear if the female employee felt that it was "rude sexual advance" since to her it was "no big deal."

From the EEOC:

> Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

It's not about how this employee feels about the advance. It's about how the next one will.

That's a pretty broad assumption your making.

If there is a next employee who is harassed, he/she can file the complaint, and the company can deal with it then. As it stands, no company policy was violated, and the female employee doesn't think this is an issue.

This is a single incident, that again occurred during the weekend, and over Whatsapp (both parties consenting to share numbers).

> As an attempt to bulletproof firings that target ostensible members of a protected class

This is phrased poorly -- everyone is a member of (several) protected class, since a protected class is an axis on which discrimination is illegal. Race is a protected class (not just particular races), color is a protected class (not just particular colors, and distinctly from race), religion is a protected class, sex (not just one sex) is a protected class, and so on.

And, in addition to anti-discrimination protected classes, there are all kinds of other prohibited bases for firing (e.g., retaliation for invoking various legally-protected workplace rights such as family/medical leave, etc., or reporting violations of workplace protection, such as wage/hour rules and occupational safety rules.)

PIPs are a tool for documenting reasons for firing to support that they were not for any unlawful reasons would be a more accurate phrasing than saying that they are a means of protecting firings that target "ostensible members of a protected class".

Sure. You're right, this isn't worded well (I wrote it in several successive edits). I'd write it differently now:

PIPs have just two purposes:

1. As a CYA mechanism to avoid discrimination, harassment, and retaliation claims.

2. As a socially acceptable means of informing employees that they should begin a new job search.

> you almost certainly have to give the employee a chance to respond to the accusations

If all the OP had was the claims of the harassed employee, you might have a point. But the OP claims to have seen the actual texts sent.

IANAL, and of course a lawyer should be consulted, but I would be very surprised if there were any danger in firing the employee without further ado.

It turns out that trying to reason things out from what seems right and/or fair can get you in a lot of trouble. If you haven't received specific training on how to handle this sort of thing your instincts can absolutely lead you (and the company) in a bad direction.

You can be extremely selective in the evidence you present. For all you know, they previously could have had "dirty talk" moments earlier. Fell out, and now retaliating.

If you want to be properly moral and just about this? Then you need get his side of the argument and all the information.

If you just want to reduce hassle, then yes just fire him.

Why can't this person simply get fired. No cause.

Even if you want to give them the benefit of doubt (which seems extremely unmerited, given the presented evidence) why would you want to employ someone who shows such poor judgement? This is not a college dorm room. This is a professional setting, and while it is natural for romances to take place, this is in very poor taste to say the least, and even if it had been in more accepted terms, poor timing -you don't just go up to coworkers like you do patrons in a bar/pub and start chatting them up.

Why not fire without cause?

I'm wondering this too, mainly because the OP said "just hired".

Most employment agreements have a probationary period (e.g., 3 months) where the employer can terminate the new hire without cause.

Most employment agreements (in the US) absolutely do not have a probationary period of that kind. That would be quite unusual.

Ok. Where I live - Canada - it's very commonplace.

Yes; most employment agreements in the US are at-will so you can fire an employee at any time without cause no matter what your seniority :)

Absolutely correct. Most employment agreements in the US have an indefinite probationary period. Consider today your last day every day (speaking mostly in the financial sense).

Also to add to this great advice when you do have workplace harassment prevention, response training one of the things that will emphasize is that the response can't be purely up to the victim. A good training on this will help you explain this necessity to an employee in this circumstance.

Basically

1. You've got the victim's back and will be carefully watching for any form of reprisals which won't be tolerated. Further you will not share any information about the specifics with the rest of the group even though you may have to address the issue generally with them.

2. But... You also have to take action as a responsible manager even if they don't want you to because you have to protect other employees from harassment by the same person. You also have a responsibility to the company to take action because not doing so can open the business up to serious liability if it happens again and you didn't do something.

I think hitting a first serious hr issue like this is a part of the regular part of growing up for many startups. If you don't yet have a clear harassment policy in place, or don't have a lawyer advising you on these kind of issues, or haven't enacted any kind of regular training on harassment prevention and response there's no time like the present to get that done.

ps. My company uses an online course from this company for yearly harassment prevention training. The production value is a bit cheesy, but very informative your first time through: http://www.navexglobal.com/en-us/issues/harrassment-discrimi... I'm sure there are tons of other options.

The only thing I would add to patio11's advice is to go back to the employee and let her know what's about to happen. If you do it without any warning, then yes she might feel that it was a breach of trust. But, if you tell her before you fire the guy you can maintain trust.

This. Do not make this person feel as if you did the one thing they precisely didn't want you to do. Doing so means future incidents (of any sort - people don't like to talk to betrayers) are unlikely to be reported at best.

Earlier advice regarding lawyer up, for gods sakes still applies, but you now have a human obligation to the person who reported this in confidence.

Speak to a lawyer ASAP and then absolutely before you act speak with the victim. Both parties could potentially sue, it's not unusual to try and ignore something during the shock phase and then have a change of feelings later. Her simply wanting it to not happen again isn't quite enough. you know about it now too.. Lawyer up, you'll likely terminate the jerk and have some documents for the victim to sign

A valid reason to give to the victim is that you're not just protecting her but any other current or potential victims (using nicer language than this). That will help her feel good about coming forth with the information; she's not causing trouble for the company but actually saving someone else from harassment.

Yes, I really liked patio11's likening it to embezzlement, being a crime against the company (although in the case of harassment, it is a crime against both the company and the individual recipients).

While there's no question he needs to leave, the way you handle this is an opportunity. If you act skillfully, employees in general will be more willing to share problems with you in the future. You can reach the end result without making the wronged employee feel even one bit guilty.

Have the lawyer spend time walking you through the various ways this can play out, rather than just give you a cookie-cutter procedure.

With this knowledge you will feel confident about the way you communicate his departure to him, to the employee who has been wronged, and to the company in general. The human subtleties here matter as much as the legalities. Rely on the lawyer for the latter, and yourself for the former.

One of the first things I learned in management training was: "as soon as a manager knows about an incident, the company knows about the incident." You can't promise confidentiality because the company _must_ act on information it has. (If it does not, it opens itself up to later lawsuits for _failing_ to handle discrimination and harassment.)

All of this is to say: patio11 is right.

> I think the consensus in the grown-up business world is "fire immediately for cause."

I think the normal business advice would be to 'suspend pending investigation', and then wait for a neutral third party to recommend firing.

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 additional harassment training, and management/HR keeps a closer eye on all employees involved: complainants, suspects, and their direct supervisors.

The company then accumulates sufficient pretext on all the involved employees to justify termination of "at will" employment for any one of them, and then waits to see if anyone will end up costing the company money before pulling the trigger.

That is the consensus. It is not fair. It just saves money. As such, I would caution against looking to the consensus when deliberating on the morality or ethics.

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

That's the lawsuit brought by the person who gets fired, which requires the corporate lawyer to submit at least a brief and motion for dismissal, if not an actual answer to the claims.

People occasionally do sue their former employers when they believe they have been wronged in some way. If you fire someone for sexual harassment when no such thing occurred, the ex-employee might sue for no other reason than to get a declaratory judgment asserting the facts of the case, as subsequent employers may be reluctant to hire, otherwise.

Conflicts that cannot be resolved amicably often end up in civil court. Losing your job is an emotional experience which may result in loss of amity. That is all.

I did not intend to imply that such cases had inherent merit or support of statute. You can sue anyone for any reason in civil court, and appeal to equity, which is basically complaining that something isn't fair, and that the court should do a specific thing within its power to make it less unfair. If you are ever fired, for cause or not, it would be prudent to consult with an employment law specialist so as to not waste everyone's time with a frivolous suit.

If you believe this, it seems like you might also believe that it's legally risky to fire a developer who rm's the production environment. After all, they might bring a frivolous lawsuit for no purpose other than to "get a declaratory judgement asserting the facts of the case".

(Incidentally: I don't think you can just "sue for declaratory judgement" to enlist judges to settle arbitrary disputes; the judgement has to apply to a justiciable controversy. If the employer threatened to sue the accused for damages, for instance.)

I can't tell whether I am explaining myself poorly or whether you are intentionally misinterpreting.

I am not a lawyer, and to my knowledge, neither are you. And that's why I won't go further than this post on this branch of the conversation. As I have noted before, you can apparently post far more often than I can, and I can't keep up with you even when I have any credible knowledge on the topic.

I have a somewhat jaded view of the US civil court system. Others, not quite so jaded, believe in the Hollywood stories where Joe Average can take on Blatantly Unethical, Inc. and win. Those are the people foolish enough to sue their former employers. Just don't do it. Take your licks and move on.

In your hypothetical, the ex-employee sues for injunctive relief against the former employer disclosing to anyone the reason why he was fired, as it is damaging to his professional reputation and therefore materially impacts earning potential. The employer has an affirmative defense that truth cannot be slander. So the judge now has legitimate reason to decide the facts of whether the employee was, in fact, fired for gross negligence. The employer submits log files with a motion brief, the judge pretends to read them, and then renders summary judgment in favor of the defendant. It is now public record forever that the employee was fired for rm'ing production. Any good lawyer could have informed the employee that this would not end well for him.

Edit:

Injunctive relief = the plaintiff seeks an order from the court for the defendant to either do or not do something. In this context, it would be to not tell anyone why they fired the plaintiff. This is my understanding of the concept. If you need additional explanation, talk to a lawyer, or a paralegal, or a law student, as I am none of these. This is just my layman's perception of a thing that courts can do. If the defendant disobeys the order, the plaintiff has to first find out about it and also actively petition the court to do something about it.

"Injunctive relief"? Help me understand what you mean by this.

You are arguing with someone whose limited exposure comes from observing secondhand issues. People don't know the difference between what feels right and is legally safe.

Legally safe is to have lots of cash in your war chest, and enough time to be very patient.

The law doesn't need to be on your side if the judge is.

Perhaps I'm only pessimistic because I have been metaphorically kicked in the teeth by too many kinds of grown-up bullies, and have seen too many all-too-familiar stories about it happening to other people like me.

Couldn't the company fire without cause to avoid the potential wrongful termination lawsuits? Or would the company remain exposed to a sexual harassment suit as they couldn't prove they did something as a direct result of the incident.

Most of the companies I have worked for would likely do exactly that. The problem employee would be terminated as an ordinary cost-cutting layoff, and no one would be the wiser.

The expedient solution is to be spineless and cover your own ass. It does not produce the desired behavior at higher levels, but the Nash equilibrium is to do it quietly and kick the can down the road for the next employer to deal with. This is exactly how the Catholic church and the Boy Scouts handled its pedophiles--cover it up and delay accountability indefinitely.

If there may be a threat to sue, offer a severance package that precludes civil lawsuits.

I was once laid off, and I suspect the reason for it was that the company did not want to pay off on my as-yet-unvested options at a time when the public stock was at an all-time high. I didn't sue, because the severance package was worth more to me than the potentially years-long litigation hassle. They, in turn, never admitted to any particular reason for laying me off. If I'm going to end up screwed either way, I'd prefer the method that allows me to get it over with and get on with my life the next day.

The impetus to throw just enough money at the problem to make it disappear fuels some of the scams that prey on very large companies. This is closely related to the business model for patent trolls. If you ask for slightly less money than litigation would cost, you get quietly paid.

Edit:

Most civil cases don't go to trial, and I don't care enough about my own disposable post on the Internet to go look up legal citations as a tangentially interested non-lawyer just because some other disposable post on the Internet asked for them. My point was that corporate employers are amoral, and would prefer to handle a potentially hairy situation cheaply rather than ethically. The only points required are as follows. 1. It is possible that a recently terminated employee could sue the former employer; it even happens occasionally in real life. 2. Such a lawsuit has a nonzero cost to the employer (and also the ex-employee). 3. Therefore, the employer can theoretically save money by bribing the ex-employee with a lesser amount than in #2 to not sue. 4. This could potentially allow the ex-employee to escape the consequences of actions that may or may not have led to the termination.

The general consensus among companies is to do the easy thing, not the right thing.

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 harassment (or, if you like, any claim of harassment whatsoever --- or, really, any "cause" whatsoever)

* Terminated, either formally for cause or for no cause

* Claim of damages stemming from the termination itself

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...

Regardless of whether the state recognizes an implied covenant of good faith, most states recognize that people can be fired illegally. It can easily come down to a "he said, she said" situation. And if your employee has a long history with the company or did important work, there is a decent chance they can pull together a story for why their firing was improper. Even if no damages are awarded, the attorney fees and time can be quite expensive.

I do recall a specific case not to long ago in Alaska where a police officer sexually harassed a couple coworkers and then was reinstated by an arbitrator. You can read about it here: http://www.leagle.com/decision/In%20AKCO%2020150417013.xml/A...

I doubt cases like the Alaska one above are all that uncommon, altho admittedly the collective bargaining agreement has a major impact. California, in particular, is a notoriously friendly place for employment litigation, moreso than Alaska.

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

What, you didn't know that people who like to sexually harass their coworkers were a protected class?

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.

Really? If he's _just_ hired him, I presume any probationary period would be ongoing and you can let the guy go consequence free? Thus, the most obvious least path of resistance is just to let him go and not really give him cause. I'm not from the US, thus I'm genuinely asking the question.

With that said, aren't we potentially overreacting here? Quite a lot of romances spark in the office. The guys tried it on, he's been rubuked, hopefully he got the point and will settle down. If he doesn't, then I you do have a problem, but the reaction here seems to be like he's just ran over your dog.

> With that said, aren't we potentially overreacting here? Quite a lot of romances spark in the office. The guys tried it on, he's been rubuked, hopefully he got the point and will settle down.

I see your point, but if you're an employee and you're sharing that "so and so texted me this <shows phone>", what's the motivation behind that? She said she doesn't want to cause problems, but if it's something between two adults and not involving work, I would imagine she would just not say anything, particularly to management.

OP needs to read into their conversation, it's hard to armchair quarterback this over the internet. At the end of the day it's ultimately easier for us to say fire for a multitude of reasons, many of which are likely valid.

> I see your point, but if you're an employee and you're sharing that "so and so texted me this <shows phone>", what's the motivation behind that? She said she doesn't want to cause problems, but if it's something between two adults and not involving work, I would imagine she would just not say anything, particularly to management.

I think you're dangerously into all women are always resonable logic there. It's entirely possible, that the female employee, as an employee of a startup, is inflected by the same hyper-sensitivity that plagues communities such as ourselves. Conversely it's also entirely possible that male employee is a complete and utter dickhead. I wouldn't bet my life on either one being the truth.

> OP needs to read into their conversation, it's hard to armchair quarterback this over the internet. At the end of the day it's ultimately easier for us to say fire for a multitude of reasons, many of which are likely valid.

Well yeah, the OP hasn't given us enough info to really comment and he'll need to use his own personal judgement on whether the messages were over the line or whether he was just being a guy. I'm just trying to remind people that whilst we should be professional at work, we aren't automatons and normal people are going to continue dating and bonking their colleagues or attempting to do so and whilst that's sexual, it doesn't necessarily constitute harassment.

> I think you're dangerously into all women are always resonable logic there.

Uhh... seriously? I hope I'm misreading what you wrote here.

Why? Your no smoke without fire argument relies on the lady in question not being touchy or unresonable. I'd argue donglegate shows that, despite having an army of men willing to defend them, sometimes this is the case.

It's also poor form to skip the context like that.

Dunno, I'd kinda assume people are being reasonable by default. That's how societies are built by the majority so that a minority of cynics can find the luxury to make sexist remarks within that established framework.

Well, no. You're assuming the woman is reasonble by default and thus the man must be at fault. This is actually a sexist point of view.

You forgot "actually" after your "Well"

Except I wouldn't ignore textual evidence "because women can be unreasonable" or "men can be assholes".

Straw-man. Or possibly framing the original argument stereotypically/in bad-faith.

Concluding you only have one side of the story, is not the same as, nor necessitates ignoring it. One alternative is getting the other side of the story.

I also find the phrasing "because women can be unreasonable" to be suspicious - there is no reason to put it this way rather than "people can be unreasonable"; OP made no claim that only women should be treated with skepticism.

- are you trying to invoke the historical meme of women being dismissed as irrational?

I did not make up the phrase, just read the comments and the memes and the rhetoric by the OP. They are exactly what you disagree with. OP didn't just say "listen to his side" which is reasonable (albeit dangerous and should be handled by legal rather than personal means)

Actually the only point I've really made is you shouldn't automatically assume the woman is being resonable whilst also assuming the man is unresonable. I'll happily admit that the converse is also true, but since 90% of the thread has jumped to the conclusion the guy should be fired, it hardly needs to be said.

Where you're going wrong, is that you're attributing more to whats actually been said, which is sadly the problem I have with this entire thread.

Ambiguity and rhetoric does that.

You're focusing on one bad outcome, while ignoring another.

I am trying to convey the notion that with this line of thought, anyone could be doing anything because they are unreasonable or selfish. The original poster could be experimenting on us to mine text and find differing levels of consensus per time when HN faces controversy. I could be a bot trying to be more human. Without taking evidence into account, most of society is garbage.

Self-interest/motivation has its own MO. Also, sometimes motive isn't so important - physical behavior is. This is the evidence which can be collected. Otherwise you can't really assume much. Your original comment seemed to imply a conspiracy though through "built by".

This is a little detached from the original context though, and there's another issue there; People are not random processes, they may choose to pursue selfish strategies conditional on being in a system where it is uncritically "assume[d] people are being reasonable by default".

In the US, almost all employment is at-will. There's no probationary period and any one can be let go at any time without notice for any reason (or no reason) except for a certain list of protected things (gender, race, marital status, and the like).

Also, from the description, it seems like the conversation was way more than just "would you like to get a drink" and the guy already didn't back down.

> from the description, it seems like

Exactly, nothing that any HN observer can come to any conclusion with.

Probationary periods are basically fictional unless you've laid out some formalized termination process.

Perhaps fictional in the US. They are very much legal fact in (most of?) Europe where at-will employment isn't really a thing.

I assumed this story took place in the US, where people talk about "probationary periods" all the time despite basically your entire term of employment being "probationary" in this sense. Yes, if you're in Europe it's a totally different story.

Referring to someone as a MILF at work is inappropriate at work, even if you are trying to 'spark a romance'. You don't get a free pass to try anything once. If you are trying to spark a romance, you have to do it in a professional way that leaves the other person an out before you take it to an inappropriate level.

See I think this is a culutre thing, but I imagine it doesn't work for the entire USA but is locked down to the left politically correct spectrum, because to me it's not all that bad a word.

Point being, I could quite happily call someone from work a MILF in a semi-serious / semi-jokey way and get away with it. In fact, I've said worse and had success because if the woman likes you, she'll like the fact you said it.

Now where the problem lies in this example is the guy should have read the signals that she wasn't interested and not just try it on anyways. Then again, I'm not sure why she'd move over to a private medium if she wasn't acting interested.

But I get it, you're outraged at a couple of tidbits of information that aren't guaranteed to be in order and are largely without context of the conversation. I can't really argue with that.

> had success

That's a really gross way of describing your overbearing behavior in a work setting. As if spitting out sexually-charged comments is some sort of win/not-quite-lose scenario.

Yeah, let's just keep calling women MILFs, or calling guys DILFs, or whatever the pickup line du jour is, until it "succeeds", and until then, well, just keep trying. That doesn't sound like a creepy, overbearing trait to exhibit at all. /sarcasm

There's a difference between me calling you a DILF either in jest, as an actual compliment or because I want to see how you react than repeating it ad nauseam.

Also you seem to be imagining that everyone's doing this during working hours and that there's no context to the comments. If I just walked into work and started yelling such things at people, I imagine folks would quite rightly pause, but the "had success" point was that there is obviously situations where this is appreciated.

Why do you keep harping on someone "appreciating" or "liking" the comments? It comes off as you equivocating your sexual advances towards coworkers as being something worth giving, that the existence of one time where you made a comment that wasn't rebuked is now the case law for it being OK that these things are said to people who might very well be totally disgusted by the person who says it, because one person, at one point in time, wasn't disgusted.

Sigh. You seem to be missing the point which is that a not insignificant percentage of relationships spawn from the work place. You may want no part in that, and that's fine, but the idea that we should never act human to each other because professionalism is something that a significant percentage of people dont appear to agree with.

So whilst I'm not suggesting you go in tomorrow and tell your nearest female colleague they have nice tits, I'm arguing that at some place at some point in some context it's entirely possible to compliment and make appreciated advancements on a colleague, otherwise office relationships wouldn't happen.

Now if you accept that sometimes it may be okay, under certain circumstances, to do such things, you also need to accept it's possible to make an unwanted pass at someone. You may find that disgusting but most people would just find it slightly awkward and am slightly bemused at the reaction of some of you.

The other point I was generally making, is that whilst some woman will never appreciate such a comment and some will, some of the time some will appreciate you making the comment whilst being quite annoyed if I did. But all I'm really saying is the matter may be more complex that the "he needs to be fired" comments.

Of course you're free to draw the line before calling someone a MILF, and again this is without context, but if you really find saying such a thing under any circumstances abhorrent, I'm going to go out in a limb here and suggest you're just no fun.

Look, I know all about workplace romances - I am married to a woman I met at work.

I think YOU are missing the point. There is no word (MILF included) that I will categorically say should NEVER be uttered at work.

I will say, however, that you better be VERY close with your coworkers before you start saying it. The kind of close that is IMPOSSIBLE to get to in the first few weeks of employment at a place. The fact that this guy just started working at the company and already called someone a MILF (and who clearly didn't like it, since she complained to the CEO) means he is being horribly inappropriate, and has no excuse.

> I will say, however, that you better be VERY close with your coworkers before you start saying it. The kind of close that is IMPOSSIBLE to get to in the first few weeks of employment at a place.

I disagree. I'm a "contractor" which means I've had a lot of short engagements. Part of what makes me good at being a contractor is I usually get on with people pretty well and being a working class Scottish lad, I do have a rough sense of humour. I joke around with both men and woman, and that's okay because people like that part of me.

> The fact that this guy just started working at the company and already called someone a MILF (and who clearly didn't like it, since she complained to the CEO) means he is being horribly inappropriate, and has no excuse.

Well yeah, but that's still the no smoke without fire argument. She clearly doesn't like it, it shouldn't be said again, but do we extend that you immedaitly firing the guy if he simply misread the situation and dropped it from there?

If you are friends with your coworker, and you know each other well, then sure, you can get away with calling her a lot of things. I have specific coworkers that I am like this with (in private, away from other coworkers who might not know our relationship)

There is no WAY this would be acceptable until you have established that type of relationship over a long period of time. This guy just started working there, so that is not the case here. The fact that she complained about it means that they don't have that type of relationship, as well.

Yes, ownagefool, I think that this thread, the more extreme reactions come from an oversensitized USA to the sexual harassment.

One has barely any info other than the attitude of the guy made the CEO upset [and we don't know exactly if that translate to harassment, improper conduct or maybe latent feelings (consider all of these)], yet, everyone is saying fire him.

The asking for a whatsapp and she saying 'only as friends in a work context' can't be seen as a first advance, so it can't be seen as he got rebuked the first time, he got it clear with the MILF remark, she probably rebuked him, if he continued, it is harassment, if not, I wouldn't call it that.

99.9% with you, but I would suggest a minor change to your last sentence. Either: - Don't say anything about the departing employee - Note that his/her behavior violated company policy/policies - Give the euphemistic "X decided they weren't a good fit for our organization and is pursuing other opportunities"

Yes, +1 to this.

Also, just because this one innocent employee says she "can handle it" doesn't mean that he isn't behaving like this to other employees, current or future. In order to (1) protect your other employees, and (2) set the tone for what is acceptable at your company, you need to get rid of this guy immediately.

> I think the consensus in the grown-up business world is "fire immediately for cause."

Not in my experience, and it's not the law (as taught in the myriad of training courses I've endured over the years). The man should have an opportunity to learn from this mistake, then be fired when he proves incapable of learning.

Providing the warning and training is enough to legally cover the company's ass if the guy screws up again.

Yes, it's a big mistake to make, but when your hiring pool is predominately college graduates, it's pretty likely they don't know the law (or how to navigate romance in the workplace) either. Time to educate them.

EDIT: It's also important to get the other side of the story; why did this guy feel it was appropriate to approach the woman in the first place? Were there conversations not included in the record? Was there body language the man misinterpreted?

It's not a mistake. He didn't leave the server room door open. He called her a MILF.... TO HER FACE.

He's not 12 (I assume). If he hasn't learned to be respectful to women before now, it's not this guy's job to teach him.

" He called her a MILF.... TO HER FACE. He's not 12 (I assume)"

Good point. This kind of person will probably need more self-improvement lessons than most companies can justify investing in him. Plus likely cause other headaches. Best to get rid of him if claims are true.

Its a shame to see how aggressively this is being down-voted. All you're saying is to take a step back and try to improve the behavior before firing the guy. Face to face dialogue, communication, etc etc is much more likely to prevent this in the future.

Just firing him is kicking the can down the road to the next company.

So, instead, you pick up the can, and have a stern talk with the guy, have him sign some paperwork, and move on. Later, the guy makes untoward comments to someone on a PIP. You don't find out he did this until after you terminate the PIP person, and they sue you. Right in the middle of your next fundraising effort.

I personally believe that short of committing a felony, every employee gets a warning first. I'm not going to be held hostage by the abstract threat of frivolous lawsuits. And yes, with everything including the PIP being documented, that would be a frivolous lawsuit.

Twice in my career I've seen sexual harassment claims raised at a company I worked for after someone departed the company, and twice I've been led to believe the result was a very large cash settlement for the accuser. (Neither case occurred in a company I was in management at).

If your firm has any money in the bank at all, the accuser's lawyer will take the case on contingency, knowing both that you are unlikely to prevail and that your likelihood of prevailing is besides the point because the case will cost a fortune to litigate and taken years to dispose of, during which time you will be frozen on any major business development moves.

You can call these kinds of suits "frivolous" or "unfair" or anything else you'd like. I don't care, as long as you don't also call them "ineffective".

I think there are better places for employees to learn basic standards of professional conduct than in a deposition.

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...

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.

Would you do the same for embezzlement?

Jobs are jobs, not training programs. It's not wrong to expect someone to just be able to do their job without opening the company up to lawsuits. People are fired for incompetence of all kinds -- no one is guaranteed a job. And do you really want to spend an hour a week discussing with this guy that MILF isn't appropriate workplace language and then checking in with all the coworkers to make sure he's not secretly getting away with more? What a waste of company resources on an adult who certainly knows better.

embezzlement is a felony.

> Jobs are jobs, not training programs.

As a manager, I'd say this couldn't be more false. Learning and development is a critical part of any job and if your manager isn't actively concerned with helping your L&D, look for a new one.

Also, if it were an "hour a week" he wouldn't last more than a very few weeks.

> Would you be worried about this if he had been embezzling?

That would be an egregious and illegal behavior taken against the company, and the company execs should take action.

However, this is a case of one adult sending inappropriate private messages to a co-worker (also an adult), but not on company time, and not using company resources.

Yes, but fast forward 5-10 years and we'll see Ask HN: how do I get rid of this lawyer who insists I can't do anything without his expert advice?

Stop paying them?

I imagine most lawyers tend to go away pretty quickly if you stop giving them money.

"I think the consensus in the grown-up business world is 'fire immediately for cause.'" Concurring that this is the correct answer.

I make this statement from the perspective of having employees since 1979 in multiple concurrent businesses. If they have no respect at the beginning they will have less respect next week.

You must choose between your business and the new guy. In a year, you will have one or neither.

I agree with the consensus that you need a lawyer to navigate you thru this, but if you fire them without their being made aware of their actions constituting harassment you are liable. Further if you do not conduct an investigation that involves all parties you are liable. I have seen more grey area cases where a complaint is filed and it comes out she is married, things went to far and now it gets walked back as harassment (usually due to a husband finding a chat log). Not saying this is what's happening here but that's the point you don't know, you have one side of the story and acting on one side of the story puts you in a bad legal position. Further harassment requires a warning that the actions are not appropriate and constitute harassment (documented) by either the individual or a supervisor and a second violation before it is actionable. This often gets construed with sexual assault which is actionable immediately. Basically the TL;DR is "get a lawyer before you do anything".

Ah, HN. The place where people complain that companies aren't willing to invest in their employees by (re)training them, and the place where firing is demanded if people make a misstep.

Embezzlement is not equatable here - embezzlement is an objective crime that attracts jail time. Flirting with someone in the office (even if clumsy) is not - there's plenty of office romances out there, and people don't go to jail for them.

Yes, talking to a lawyer and documentation is the right thing to do, but damn, why does every mistake require a scalp?

> As to messaging to the rest of the company, again lawyer lawyer lawyer, but "X made comments of a sexual nature to another employee. As a consequence, we fired him. If you have questions or concerns, speak to me later. Moving on."

No, not moving on. If you do that and then don't then make a sexual harrassment statement part of your hiring process, then you've half-arsed it and are setting yourself up for a repeat - and next time an employee won't come to you, because they don't want to get someone fired over the issue; you've both broken an employee's trust in you and not protected yourself in future. If you're going for the hardline approach, you have to do it completely.

OP: if you want to build a team, scalping people for any misstep won't be a good idea, especially if you have no clear policy regarding what is proper or not.

hahaha holy shit, this person thinks "calling your coworker a milf" is 'any (silly ol') misstep' and literally thinks a written HR policy is needed before you discipline them for clear sexual harassment

HR COMMANDMENT XVI: thou shalt not call your coworker a milf

HR COMMANDMENT XVII: thou shalt not ask your coworker to suck your d

HR COMMANDMENT XVIII: thou shalt not tell others in the office "your coworker has DSLs"

you know the flash animation video that goes "badger badger badger badger badger"?

https://www.youtube.com/watch?v=EIyixC9NsLI

well, think like that, except;

lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer lawyer

mushroom, mushroom

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