As the national media spotlight continues to glare on Harvey Weinstein’s arrogant and shameful sexual misconduct (and possible criminal assault) and the “me too” social media campaign demonstrates the grotesque depth of the problem nationwide, a variety of questions swirl around the perplexing complexity of sexual harassment laws.
Employment lawyers often are called upon to conduct or coordinate investigations into workplace misconduct. An employee is suspected or accused of criminal or illegal activity and the attorney is retained to get to the bottom of it all. From drug offenses, to petty theft, to embezzlement or fraud, these workplace investigations can be perplexing and complex.
But investigations of sexual harassment in the workplace without doubt are the most challenging of investigatory assignments. As with the confirmation hearings for Justice Clarence Thomas, most sexual harassment investigations involve difficult credibility resolutions resulting from accusations and denials regarding one-on-one situations. Often, there isn’t one shred of corroborating evidence.
Also, the stakes may be very high. The victim or harasser alike may be aggrieved, angered, and injured by the results of the investigation. The employer often is caught in the middle between two very angry employees and expects to be sued no matter what action is taken. Emotionally charged investigations of alleged sexual harassment can result in a wide variety of dangerous legal claims and counterclaims including the following: Title VII sex discrimination and harassment, defamation, wrongful discharge, intentional infliction of emotional distress, or even negligent hiring/negligent retention, and so on.
Whom do you believe in the course of your investigation, the victim or the alleged harasser? Rarely does the alleged harasser break down and confess à la Perry Mason and throw himself (herself) on the mercy of the investigator. Often the result of the investigation will be inconclusive.
After the complaint of sexual harassment has been made and the alleged victim interviewed, the next step ordinarily will be to interview the alleged harasser to get his response to each of the allegations. It is important for investigators to be familiar with and prepared to deal with the wide variety of explanations, excuses, and statements in mitigation they may hear from the alleged harasser. The investigator should also know whether the proffered explanations, if proven, would constitute a legal defense to a Title VII sexual harassment complaint in federal court or whether they are merely legally insignificant rationalizations for his alleged conduct the alleged harasser might offer to friends or family.
Here is a sampling of explanations we have heard over the years in the course of dealing with allegations of sexual harassment. We have categorized the excuses for convenience and offer our comments on whether the explanations are relevant evidence in a sexual harassment complaint under Title VII. Obviously, in all cases, the credibility of the proffered testimony will be crucial; our comments are addressed solely to the issue of admissibility. With apologies in advance to those who may be outraged by the very suggestion that some of these theories would ever fly, here is our list of the spectrum responses to allegations of sexual harassment, together with our comments:
“Why, I can’t imagine that anyone would even give this a second thought, much less be offended by it.”
“No one else would have reacted that way.”
“She should have known I was joking.”
“Hey, how am I to know it’s unwelcome joking if she doesn’t say so.”
Comment: The courts have adopted an objective standard to protect employers from a hypersensitive or idiosyncratic employee. In the Supreme Court’s recent decision in Harris v. Forklift Systems, the court adopted an objective “reasonable person” standard for determining whether a work environment is sexually hostile. Under this standard each of the above explanations for the claim of sexual harassment would be relevant and material to the case.
“I treat everyone who reports to me that way.”
“I’ll admit it, my conduct is immature, nasty and annoying. But I’m just that way to everyone.”
“I’m the innocent victim of my own friendliness. I’m just a very personal, touchy-feely kind of guy with everyone.”
Comment: While this is by no means a fool-proof defense, the equal opportunity nastiness argument is not unprecedented. Last year a federal judge in Brooklyn threw out a flight attendant’s sexual harassment complaint on the grounds that her supervisor’s “immature, nasty, vulgar, and annoying conduct” was directed toward all his colleagues, regardless of gender. Obviously, in a workplace with a small percentage of female employees, this argument would lose its luster and might even run afoul of Rule 11.
“She never objected or told me to stop.”
“I’m simply blind-sided by this.”
“I never knew it bothered her.”
“Why, she always laughed at my jokes.”
“The more vulgar the story the harder she laughed.”
Comment: In addition to the objective standard for determining sexual harassment, the courts, including the Supreme Court in Harris, require a plaintiff to show that she actually (subjectively) believed that her work environment was sexually hostile. In other words, she must prove that she was offended, intimidated, or humiliated by the alleged conduct or that it interfered with her job performance. In the words of the EEOC’s Guidelines, the conduct must be “unwelcome.” Thus, evidence that the alleged victim of harassment initiated the sexual banter, joined in the joke telling, never objected to the conduct, or never made a formal complaint under the company’s written policy prohibiting sexual harassment, is all relevant to the issue of whether she was in fact personally offended.
“We work in a rough and tough environment.”
“Everybody joined in. This ain’t no uptight workplace.”
“We were just blowing off some steam.”
“Hey, the Christmas party is only once a year. It’s not as if this goes on every day.”
“We were just treating her like one of the boys. If we didn’t she might claim discrimination.”
“It was just innocent fun, horseplay, nothing serious. We didn’t mean anything by it.”
Comment: The Supreme Court, observing that there is no “mathematically precise test,” has emphasized that whether a work environment is sexually hostile can be determined only on a case-by-case basis considering all the surrounding circumstances. The Court listed the following relevant factors: “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.” Under these broad parameters, many of the above explanations may be relevant, especially to the frequency and severity tests. However, the contention that the alleged harassers “didn’t mean it” or that everyone understood it was a rough environment are probably irrelevant even under the broad Harris standard.
“She could have just excused herself and walked away.”
“She didn’t have to listen to the story.”
“I didn’t invite her to look at the pin-ups on my locker.”
“I don’t care if she puts up Playgirl centerfolds in her workspace. She has no business dictating what I have in mine.”
Comment: While each of these explanations may be relevant to the subjective standard (whether the victim was actually offended by the conduct), the victim’s rejoinder may be compelling. “He was my boss. I was intimidated by his status in the company. I was offended but I tried to go along with it to a point. I didn’t want to jeopardize my career.” Ultimately, the weight of all the relevant evidence will be determined by a jury that may well be singularly unimpressed (and even personally offended) by the above explanations by the alleged harasser.
“Lighten up, it’s not as if I’ve driven her crazy or anything. It was all in fun and she took it that way.”
Comment: “Title VII comes into play before the harassing conduct leads to a nervous breakdown.” That’s what the Supreme Court said in rejecting an argument that the plaintiff must show psychological harm to prove sexual harassment. Nonetheless, the court concluded that the effect of the conduct on the plaintiff’s psychological well-being is a relevant factor in determining whether she actually found the environment hostile. But, if there was no provable psychological harm, there might still be a foul under Title VII.
“I think she has always had a thing for me.”
“These are all things from her dreams.”
Comment: These explanations challenge the credibility of the alleged victim’s story. While the veracity of the plaintiff is always an issue, a defense based upon this stereotypically male chauvinist theory of woman’s motivation may outrage a jury of peers.
“She was the one who flirted with me and egged me on.”
“Take a look at the way she dresses and tell me she’s some prude.”
“She is such a flirt. Just listen to her sometime.”
“Hey, a man is a man. You can only take so much of this seduction.”
“I’m no different than Adam, except I didn’t bite the apple.”
Comment: Under the “totality of the circumstances” test, some might argue that the plaintiff’s workplace conduct is relevant to the issues of whether the conduct was “unwelcome” and whether she was “actually offended” by it. However, most observers have suggested that provocation (dress and language) is no more relevant to a sexual harassment charge than it is to a rape charge. At the very least, this would amount to a controversial and potentially dangerous defense.
“Gee, I never knew what I was doing violates federal law.”
“Golly, if I’d only known, I wouldn’t have gone near her.”
“I just read the policy again and I still don’t understand where you draw the line.”
Comment: Ignorance of sexual harassment law is no defense. The definition of harassment, like that of pornography is inherently vague and will evolve on a case-by-case basis. It is difficult to define, but most will know it when they see it.
“She had the worst sailor mouth of the lot of them.”
“She could cuss and tell filthy stories with the best of them.”
“Why, she told me five Bobbit jokes I hadn’t heard.”
“I was just following her lead, swapping stories with her!”
Comment: Can someone who shares five Lorena Bobbit jokes with her fellow employees “reasonably” be offended by the latest ribald and sexist stories about Hillary Clinton? Yes. Like beauty, harassment is all in the eye of the beholder. However, it must be a reasonable eye. She who willingly participates in swapping sexy jokes today, may find difficulties with her hostile environment claim tomorrow.
“At first, she just needed a shoulder to cry on. Then, she needed more.”
“She was going through a rough divorce. I was just trying to be there for her, to give her my support and then it happened. It had nothing to do with work.”
“We were just friends. Can’t a boss be a friend, too? Is that a violation of federal law?”
“Traveling together on business is just a very personal experience. I never meant to get involved.”
Comment: Human resources professionals would counsel that fraternization and socializing with subordinates is dangerous and should be discouraged. They recognize that they have been deputized by federal and state law as workplace sex police. Perceptions and the realities of power in the workplace can convert the most voluntary of relationships into conditions of employment. A voluntary relationship becomes involuntary when the subordinate says no. Was she really offended that he was “there for her” in her moment of need? Was it reasonable for her to turn on him by suddenly rejecting his advice and counsel on her personal life?
“She made all this up to get back at me. When I rebuffed her advances, she told me I’d be sorry. She was right. I really am.”
“Yeah, we had an affair. It was all purely voluntary. Things were tough at home and I was vulnerable. When I straightened things out with my wife, I broke off our relationship. She was really angry.”
“The last time we were together romantically was really rough. Lots of tears and then big time anger. She said my career would be over by the time she got through with me. And I guess it is.”
Comment: The Plaintiff’s motive is often an important element in a sexual harassment case. However, attacking the plaintiff’s motivation can be a risky strategy that might backfire. Hell hath no fury like the jury that concludes the defense falsely accused the victim of being a vindictive, spurned lover set on revenge.
“She’s simply trying to hold up the company. She’s got one of those shyster lawyers advising her. You can tell by her pat answers.”
“This political correctness stuff is driving me nuts.”
“This sex harassment stuff is just a license for legalized extortion. She wants to take us to the cleaners. It’s like the woman who cries rape after consensual sex.”
“Mike Tyson and I should start a new organization called MALE (Men Against Legalized Extortion)”.
Comment: Employment litigation is time-consuming and expensive. Prudent employers will investigate promptly and fully all claims of sexual harassment (even where the complainant insists that no action be taken), and take “immediate and appropriate” remedial action that is “reasonably calculated to end the harassment.” Employers should take a firm no-nonsense approach to the investigation and take appropriate remedial action without regard to the relative position of the alleged victim and harasser in the corporate hierarchy. Needless to say, any evidence of “whitewash” or “cover-ups” will be disastrous before a jury deliberating the issue of punitive damages. Employers should also be consistent in implementing and enforcing their non-harassment policy. Inferences that different policies or double standards were applied will not play well before a jury of peers.
There are no “bright line” tests for determining whether workplace conduct creates a sexually hostile environment. The courts and EEOC have ruled that each situation must be reviewed on a case-by-case basis considering all the surrounding circumstances. As a result, the standards of relevancy will be quite broad (and no doubt offensive to some). But since these cases involve a complex combination of subjective and objective factors, tighter evidentiary limitations would be inappropriate.
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