Case: Dismissal for constitutive act of sexual harassment against an employee (35 points)

Ms. Cruz was in her work area dispatching a patient file “standing and bent” when her supervisor “spanked her hip”. She expressed her indignation and told him that he had been disrespected and lacerated her dignity as a woman. This event occurred in the presence of several colleagues of Mrs. Cruz and around sixty (60) patients. The unwanted physical contact perpetrated by her supervisor towards that intimate part caused her to start crying and had to leave her work area to try to calm down. Since he could not get himself together, he requested authorization to leave his work shift early. Two days later, Mrs. Cruz returned to her place of employment and requested to be relocated to another area. On that same date, the department director interviewed her and drew up a preliminary report in which she described what happened. Later, and as a provisional measure, he relocated both Mr. Rosa and Mrs. Cruz to other areas of work. In addition, the Human Resources Office initiated a formal investigation of the incident. Meanwhile, Mrs. Cruz filed a formal complaint against Mr. Rosa for sexual harassment. Then the Director of Human Resources met with Mr. Rosa to provide him with the opportunity to react and to offer his version of events. In that interview, Mr. Rosa accepted that “he slapped the employee on the back and that it was a one-second event and nothing more.”

Once the investigation was completed, a hearing was held where Mr. Rosa was notified of the preliminary results of the investigation and was given a second opportunity to express his version of the facts. After holding that hearing, the company's Human Resources and Labor Relations Office issued a Resolution in which it detailed the results of the investigation, concluding that the act committed by him constituted sexual harassment in its hostile environment modality. Thus, and based on the company's Rules of Conduct and Disciplinary Measures, which establish as a sanction the dismissal of an employee when he incurs in a constitutive act of sexual harassment. The Human Resources Office recommended the dismissal of Mr. Rosa. In the dismissal letter, he was informed of the result of the investigation and it was explained that the reason for his dismissal was based on the fact that he was in breach of Code of Conduct number thirty-seven (37). Unhappy, the following day he appealed that determination to an Examining Officer. Mr. Rosa disagreed that it was unreasonable to conclude that the events that occurred resulted in the dismissal of a career employee who had never been the subject of such offenses or complaints. He also indicated that the incident that led to his dismissal was an isolated one that lasted only one second and that, therefore, did not constitute sexual harassment in its hostile environment mode.

Questions to answer:
1. What were the events that led to the case of sexual harassment?
2. What could be the consequences for the employee, the company and the supervisor if no action had been taken?

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