Montgomery County Sexual Harassment Lawyers

With the wake of the #MeToo movement, there has been an increased focus on sexual harassment in the workplace. As victims come forward, employers are not only faced with disciplinary action decisions, but also, how to respond to reference checkers when the accused job applicant seeks employment elsewhere. To complicate matters, the law does not provide clear-cut guidance on whether a former employer has a legal obligation to disclose accusations of sexual misconduct to a reference checker.

Certain state laws limit what employers can divulge about former employees, including the reasons the employee was terminated. If an employer agrees to provide a reference, it could be liable for rendering evasive information. For example, if an employer provided a positive reference for a former employee, knowing that the employee was terminated for sexually harassing a coworker, the employer could be liable for misleading half-truths if the former employee sexually harassed another person at their new job.

Confidentiality Agreements

In addition to state laws, sometimes employers adhere to a confidentiality agreement. If the sexual misconduct evidence is inconclusive, the employer may ask the accused employee to resign. With this voluntary resignation, the employer may agree to keep the allegations confidential. The victim may also be in support of the confidentiality agreement.

Defamation Suits

Certain employers fear defamation suits from the accused employee. In most cases, employers win defamation cases, provided they act in good faith and are honest. Even though they typically win, it is still an inconvenience to be sued. Consequently, some employers choose not to reveal negative information. Instead, many employers take the name, rank, and serial number route, refusing to provide information about former employees aside from dates of employment and titles.

Moral and Legal Dilemmas

Like former employers, prospective employers also face dilemmas concerning employment for those who have committed or been accused of a sexual offense. While it may be extremely difficult for a prospective employer to determine the job applicant’s sexual misconduct culpability at their former job, employers still have legal incentives to avoid hiring applicants who might commit sexual misconduct. Additionally, state laws for sexual harassment of adults may create liability for negligent hiring.

Because prospective employers have a moral and business obligation to avoid hiring anyone with a history of sexual harassment, they may make decisions based on hearsay and speculation. Since most private-sector employees are at will employees, the Constitution’s due process clause does not apply. The likelihood of a job applicant having a legal basis for demanding due process would be minimal.

Ultimately, prospective employers are left to their due diligence to assess the evidence they can collect and render a decision that is fair to the accuser, while ensuring that the workplace is safe and non-discriminatory.