Friday, August 11, 2017

Takeaway from the Taylor Swift Case: Sometimes Employers Almost Have No Choice

From my partner here in Denver, Nick Haynes:

The U.S District Court of Colorado is all abuzz with a trial involving celebrity singer Taylor Swift. Swift was sued by former radio host David Mueller, who is seeking $3 million in damages, saying he was falsely accused of groping the star and was slandered as a result. Swift countersued, claiming sexual assault, for a symbolic $1. 

Mueller allegedly grabbed Swift’s buttocks during a photo opportunity. The facts alleged state that she complained to her bodyguard, who confronted Mueller, and Mueller was eventually escorted out of the venue. Someone from Swift’s team contacted Mueller’s employer, radio station KYGO in Denver, and he was terminated after an investigation.

KYGO almost had no choice but to terminate Mueller. After an investigation, they most likely determined that it was more probable than not that Mueller was guilty of the offense, which is generally the standard for termination decisions. The risk would have been too great to keep Mueller on as an employee. This incident could have been used against the employer in future allegations of sexual harassment of a coworker, negligent retention by KYGO had he sexually assaulted another third-party, or negligence in a general tort action due to similar behavior. Once an employer conducts an investigation and determines something like this most likely occurred, the safest route is to terminate the accused employee.

Any employer who is faced with a similar allegation, either by a third-party like Swift or by a coworker, should conduct and immediate investigation and use the following credibility factors (promulgated by the EEOC):
Inherent plausibility: Is it believable that Mueller would grab Swift’s buttocks?
Demeanor: When questioned, did Mueller seem to be telling the truth or lying?
Motive to falsify: Did Taylor swift have anything to gain by making such an allegation?
Corroboration: Was there additional evidence to support that the incident occurred – like a bodyguard to testify it happened or a photo that purportedly shows the incident?
Past record: It is unknown if Mueller had a past record, but anyone can see how KYGO did not want to see something like this happen a second time.

And it's very important that the assessment of these factors be made in writing, and kept in the event the employer has to recreate the decision process for the EEOC, the NLRB, or some other tribunal.

For Swift’s sake, we can all hope her lyric is true, “I’ve found that time can heal most anything.”

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