DISCUSS THE ELEMENTS OF THE LAW AND ANALYZE WHETHER THESE FACTS WOULD RESULT IN LIABILITY TO THE EMPLOYER FOR SEXUAL HARASSMENT OR GENDER DISCRIMINATION.

Sexual Harassment

Employees from the sales department of a large company held training at an out of town location.  After working hours, the team was invited to dinner and to a concert.  The company paid for these after-work events. There were 20 people who attended the dinner and event.  Several employees became intoxicated.  After the dinner and event, the employees returned to the hotel where many of the employees went to the bar for more drinks.  The next day, a male employee contacts HR back at the home office to say that he had been grabbed in his privates by another female employee and that she also tried to kiss him.  There were no witnesses to this event.

The employees returned to their regular work location.  HR investigated, interviewing both the male and female employee.  The HR representative told the male employee, who had disclosed that he was gay, that it was unlikely that the female employee was sexually harassing him because he was gay and questioned why she would go for a gay guy.  And besides, she was drunk.  Following the investigation, the female employee was suspended without pay for one week for her drunken behavior. She denied that she had touched the male employee or tried to kiss him.   There were no further incidents involving these employees.

The male employee’s performance had been declining for quite some time.  Six months before the offsite training, his sales numbers had drastically declined.  He had been counseled by his supervisor that improvement was needed.   While he had some improvement, his performance was still below expectations.

The male employee’s performance did not improve and following progressive discipline, he was terminated from employment.The male employee filed a claim with the EEOC alleging he was sexual harassed, discriminated against because of his gender, and that the company did not adequately investigate his claims.  He also alleges that his termination was retaliation for complaining about the female employee.

 

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