Name-clearing Hearings: How This "remedy" Fails to Safeguard the Procedural Due Process Rights of Employees Accused of Sexual Harassment

• Publication year: 2010

Georgia State University Law Review

Volume 26 . ,,

Article 11

Issue 4 Summer 2010

5-31-2012

Name-Clearing Hearings: How This "Remedy" Fails to Safeguard the Procedural Due Process Rights of Employees Accused of Sexual Harassment

Chiaman Wang

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Recommended Citation

Wang, Chiaman (2009) "Name-Clearing Hearings: How This "Remedy" Fails to Safeguard the Procedural Due Process Rights of Employees Accused of Sexual Harassment," Georgia State University Law Review: Vol. 26: Iss. 4, Article 11. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss4/11

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NAME-CLEARING HEARINGS: HOW THIS "REMEDY" FAILS TO SAFEGUARD THE PROCEDURAL DUE PROCESS RIGHTS OF PUBLIC EMPLOYEES ACCUSED OF SEXUAL HARASSMENT

Chiaman Wang*

Introduction

Although once reluctant to give credit to sexual harassment accusations,¹ courts have become increasingly receptive to sexual harassment complaints.² This change can be partially attributed to the Supreme Court's decision in Meritor Savings Bank, FSB v. Vinson,³ which created an affirmative duty on employers to safeguard employees from sexual harassment.⁴ In the past ten years alone, over 140,000 sexual harassment complaints have been filed with the Equal Employment Opportunity Commission (EEOC).⁵ But as the rights of alleged victims become increasingly protected, an important question

* J.D. 2010, Georgia State University College of Law.

1. Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... sex." 42 U.S.C. § 2000e-2(a)(l) (2006). Courts did not recognize sexual harassment as discrimination based on sex until 1976. See generally Williams v. Saxbe, 413 F. Supp. 654, 657-61 (D.D.C. 1976).

2. Stuart H. Bompey, Practical Problems in Investigating Sexual Harassment Claims, 426 PLI/LlT 141, 145(1992).

3. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

4. In Meritor, the Supreme Court raised the standard for employers while simultaneously lowering the standard for employees alleging sexual harassment. Employees could now bring sexual harassment claims despite an absence of economic or tangible discrimination. Id. at 64. On the other hand, employers could be liable for a hostile work environment based on sexual harassment despite creating a grievance procedure and implementing a "no sexual harassment" policy. Id. at 72; see also Bompey, supra note 2, at 145.

5. EEOC, Sexual Harassment Charges: EEOC & FEPA's Combined, FY 1997-FY 2009, http://www.eeoc.gov/eec (last visited Apr. 9, 2010) [hereinafter Sexual Harassment Charges]. The number of sexual harassment charges received by the EEOC and the Fair Employment Practices agencies (FEPA) steadily increased during the 1990's. Although the numbers have dropped since the early 2000's, the EEOC and FEPA are still receiving over 12,000 charges each year.

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arises: has there been a corresponding decline in the rights of individuals accused of sexual harassment?

Since Meritor, courts have consistently emphasized the employers' duty to respond to allegations of sexual harassment with "immediate and corrective action."⁶ The text of Title VII,⁷ or more importantly, the courts' interpretation of Title VII, requires employers to implement anti-sexual harassment policies "immediate[ly] and flawless[ly]" to ensure compliance.⁸ In response to congressional and judicial pressures, employers appear to be "protect[ing] the accusing victim at all costs"⁹ and, as a result, are "overzealous[ly]" disciplining individuals accused of sexual harassment.¹⁰ Without even a preliminary investigation into the allegations, many employers take adverse employment actions against the accused to avoid lawsuits from the accuser." Due to the increasingly protected interests of alleged sexual harassment victims, employers are more likely to be held liable for a hostile work environment than for violating the rights of the accused. Consequently, the accused's

6. Smith v. Oakland Scavenger Co., No. CV-94-01354-CAL, 1997 WL 661335, at *3 (9th Cir. Oct. 16, 1997) (quoting Yamaguchi v. U.S. Dep't of the Air Force, 109 F.3d 1475, 1483 (9th Cir. 1997)); Ballard v. Union Pac. R.R. Co., No. 8:06CV718, 2008 WL 1990787, at *5 (D. Neb. May 5, 2008); Jew v. Univ. of Iowa, 749 F. Supp. 946, 959-60 (S.D. Iowa 1990); see also Bompey, supra note 2, at 145; Hannah Katherine Vorwerk, The Forgotten Interest Group: Reforming Title VII to Address the Concerns of Workers While Eliminating Sexual Harassment, 48 vand. L. REV. 1019, 1021-22 (1995).

7. Title VII of the Civil Rights Act of 1964 provides that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... sex." 42 U.S.C. §2000e-2(a)(l)(2006).

8. Vorwerk, supra note 6, at 1021-22.

9. Cynthia Wilson Veidt, Where There's Smoke, There Must Be Fire: Rights of the Accused Sexual Harasser, 19 REV. LlTIG. 71, 73 (2000).

10. Veidt, supra note 9, at 74. See Ann Hassenpflug & Robert O. Riggs, Guilty Until Proven Innocent? Protecting the Rights of School District Employees, 104 educ. L. REP. 981, 981-84 (1996) (highlighting several cases in which public school employees suffered adverse employment actions based on false allegations).

11. Gibson v. Shelly Co., 314 F. App'x 760,763 (6th Cir. 2008) (noting that plaintiff was terminated before the completion of the investigation into the sexual harassment allegations); Cotton v. Jackson, 216 F.3d 1328, 1329 (11th Cir. 2000) (stating that the employer suspended the accused without pay and prohibited him from entering campus just one day after receiving a complaint from the accused); Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d 773, 776 (9th Cir. 1982) (noting that the teacher was suspended upon his arrival at the meeting, prior to any discussion of the allegations against him); see also Veidt, supra note 9, at 74.

12. A hostile work environment is created when a supervisory employee subjects a subordinate employee to severe and pervasive sexual harassment Faragher v. City of Boca Raton, 524 U.S. 775, 780

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rights appear "non-existent or [are] of significantly reduced importance" in comparison to the accuser.¹³

However, this trend should not continue.¹⁴ Each year, thousands of sexual harassment accusations are found to be false.¹⁵ In 2009, 12,696 sexual harassment claims were filed against employers with the EEOC, but subsequent government investigations showed that almost half of these complaints lacked merit.¹⁶ In one year alone, 5,695 individuals made sexual harassment allegations without any reasonable basis for their claims.¹⁷ Thus, at least 5,695 individuals were wrongfully accused of sexual harassment.

The mere implication of sexual harassment can cause the accused to suffer substantial repercussions.¹⁹ Allegations of sexual harassment have a significant, negative effect on all aspects of an accused's life.²⁰ Burdened with the label of sexual harasser, the accused carries an "enormous social stigma"²¹ that affects his²² standing in the

(1998). To shield itself from claims by an alleged victim of sexual harassment, an employer must provide "immediate and corrective action" to avoid liability for a hostile work environment. Smith v. Oakland Scavenger Co., No. CV-94-01354-CAL, 1997 WL 661335, at *3 (9th Cir. Oct. 16, 1997); Yamaguchi v. U.S. Dep't of the Air Force, 109 F.3d 1475, 1483 (9th Cir. 1997); Ballard v. Union Pac. R.R. Co., No. 8:06CV718, 2008 WL 1990787, at *5 (D. Neb. May 5, 2008); Jew v. Univ. of Iowa, 749 F. Supp. 946, 959-30 (S.D. Iowa 1990). This action must be "reasonably calculated" to end the harassment and to prevent future occurrences of harassment. Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 340 (6th Cir. 2008); Magyar v. Saint Joseph Reg'l Med. Ctr., 544 F.3d 766, 780 (7th Cir. 2008); Weger v. City of Ladue, 500 F.3d 710, 720 (8th Cir. 2007); Yamaguchi, 109 F.3d at 1483. In contrast, to shield itself from claims brought by the accused, the employer need only provide the accused with notice of the charges and an opportunity to be heard. Boston v. Webb, 783 F.2d 1163, 1166 (4th Cir. 1986); Zueck v. City of Nokomis, 513 N.E.2d 125,127-28 (111. App. Ct. 1987).

13. Veidt, supra note 9, at 74.

14. Justice Alan D. Oshrin recognized this need in Starishevsky v. Hofstra University when he stated that the "process of eliminating sexual harassment must go forward with recognition of the rights of all involved and without the creation of new wrongs." 612 N.Y.S.2d 794, 796 (1994).

15. Sexual Harassment Charges, supra note 5.

16. Id.

17. Id. Of the 12,510 complaints received by the EEOC, 5,273 were found to have no reasonable cause (45.5%).

18. Id.

19. Hassenpflug & Riggs, supra note 10, at 988; Vorwerk, supra note 6, at 1022, 1050.

20. Hassenpflug & Riggs, supra note 11, at 988; Vorwerk, supra note 6, at 1022, 1050.

21. In re King Soopers, Inc. and United Food and Commercial Workers Union, 86 Lab. Arb. (BNA) 254 (1985) (Sass, Arb.) (stating that it is "not overly dramatic" to say that charges of sexual harassment put the accused's "life... on the line"); Veidt, supra note 9, at 72.

22. For purposes of clarity, this Note will assign the male pronoun to the accused because most individuals accused of sexual harassment are male. See Burlington N. &...