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The Practical Employer

Sexual Harassment is the Hiring Scarlet Letter

If I’m advising my client, I’m telling them not to make the hire unless they are convinced the allegations are false.

Dear Jon,

I resigned from my last job amid allegations of sexually inappropriate misconduct. The allegations became public. Even though the women are all liars, no one will hire me. What can I do?

Sincerely,
Steve W.

This example has played out (sort of) at my alma mater, Case Western Reserve School of Law.

In 2014 its dean, Lawrence Mitchell, resigned during a lawsuit in which a professor alleged Mitchell fired him after he had tried to blow the whistle on Mitchell’s alleged sexual impropriety at work. The story made headlines both in Cleveland and nationally. Mitchell has since resurfaced in China, as a professor of law at the Shanghai University of Finance and Economics.

It appears that his students have discovered his past (alleged) indiscretions.

They’ve published a 55-page brochure [pdf] calling for his ouster. In today’s #MeToo and #TimesUp climate, Professor Mitchell may very well soon find himself on the unemployment line.
What do you do when faced with someone applying for a position when you know he lost a prior job because of (alleged) harassment?
If he is otherwise the most qualified candidate, you might be tempted to make the hire.
Yet, the candidate is toxic. He might say all the right things about his past misdeeds and his rehabilitation. He might present glowing references. He might even submit documentation from a treatment facility.
None of that, however, will shield you from liability if the individual relapses while in your employ.
If you’re convinced the allegations are false, then you may decide to make the hire.
Yet, if an employer hires an individual despite knowledge of prior improper behavior in his former employment, the employer may be liable in tort for negligent hiring. If the allegations were public enough, and sordid enough, you might even face punitive damages for consciously disregarding for the rights and safety of other employees.
For this reason, you take a huge risk by hiring a former harasser. If I’m advising my client, I’m telling them not to make the hire unless they are convinced the allegations are false. And even in that case they are taking a risk.
Accusations of harassment are a scarlet letter for the accused. And, assuming the accusations are true, I can’t say I feel all that badly about it.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.