The last thing an employer needs is to be sued by an employee being accused (and possible guilty) of harassment. However, this can easily occur unless the employer conducts its investigation carefully and implements its discipline of the harassing employee in a fair and consistent fashion. By taking a few considerations into account, employers can significantly reduce their potential liability stemming from their treatment of an alleged harasser.
A claim for defamation requires the publication of a false statement by the employer to a third person that damages the reputation of the employee. In the employment context, communications between supervisory and non-supervisory employees constitutes “publication.” Therefore, to limit exposure to such claims, employers should keep internal reports of harassment investigations as confidential as possible.
Moreover, before any disciplinary action is taken against a harassing employee, the employer must make sure that similar disciplinary action was taken against another harassing employee who engaged in similar conduct.