Newton’s Third Law of Physics states that “for every action, there is an equal and opposite reaction.” A recent Complaint filed in the Southern District of New York suggests that this principle may also hold true for the recent “Me Too” movement.
On February 4, 2018, Aaron Glaser, a New York male comic, sued the theater and improvisational and sketch comedy training center at which he worked, the Upright Citizens Brigade (“UCB”), alleging that UCB improperly handled an investigation into allegations that he raped and drugged several women, which resulted in the wrongful termination of his employment. Glaser alleges that in August 2016, he was called to a meeting at UCB during which he was informed that “in the past people feel as though you raped them.” According to Glaser, he was given no other information about the allegations other than being told that the alleged conduct occurred in 2010, approximately six years prior to the meeting. Glaser further alleges that he was not questioned and had no opportunity to explain any alleged conduct, and was never informed how UCB reached its conclusions. According to Glaser, he was then summarily terminated and banned by UCB and told he could not enter the premises of UCB to perform. He also alleges that he was told that he could appeal the UCB banning and that the banning and the complaints against him would remain confidential. Glaser further complains that two days after the meeting the allegations against him and his banning were leaked by UCB and were posted on social media and as a result, “Aaron Glaser is a rapist” went viral across the internet, which resulted in him being unable to find work. Furthermore, according to Glaser, his attempts to appeal UCB’s findings were ignored.
In his Complaint, Glaser further alleges that he “believes that there was a gender bias at UCB, especially because of the movement that followed within the comedy community was labeled ‘believe all women.’” In the Complaint, Glaser also alleges that he believes that UCB labeled Glaser a “‘privileged white man’ and decided that he must be guilty because he looks like other people who have been guilty of crimes in the past.”
Based on the above allegations, Glaser has asserted claims for gender discrimination, hostile work environment, retaliation, and wrongful termination under Title VII and the New York State and City Human Rights Laws as well as claims for negligence under the common law. It remains to be seen whether any of Glaser’s claims can withstand a motion to dismiss, but if they do, employers should expect to see more of these types of claims.
The best protection against these types of claims is a full and fair investigation. Although there may be pressure to curtail or skip such an investigation in the current environment, it is still a best practice for employers seeking to avoid claims from individuals accused of sexual misconduct. Key components for a fair investigation include:
- Promptly investigating all complaints (including those which may initially appear to be meritless).
- Conducting investigations by persons with training and experience who have the ability to be neutral and impartial (i.e., who don’t report to or have relationships with those individuals involved in the complaint).
- Interviewing all relevant parties – including the complaining party, the accused employee, other employees and third parties (contractors, outside witnesses, etc.) who may have relevant information.
- Reviewing relevant and pertinent communications and documents.
- Considering how to resolve credibility in assessing conflicting reports.
- Making a determination of whether the employer’s anti-harassment (and any related or other) policies were violated by the conduct at issue.
- Notifying the complainant and the accused of the results of the investigation.
- Taking appropriate remedial measures, where necessary.