Legal Trends

By Jonathan A. Segal Mar 1, 2008
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HR Magazine, March 2008 'I Did It, But ...'

The best defense to a hostile work environment harassment claim is “I didn’t do it,” at least when an alleged harasser’s assertion to this effect is completely true. Otherwise, the defense won’t work.

In many hostile work environment harassment cases, an employee investigated for harassment will admit to having engaged in some or all of the alleged conduct and yet insist that his or her conduct was not improper. The alleged harasser may believe that bad intent is a necessary element to be proved, even though it is not. Or, the accused may erroneously believe that, because the other employee did not immediately complain, the conduct was not unwelcome. Other justifications, such as assertions that a complainant started the inappropriate behavior, aren’t, as some investigated employees assume, get-out-of-jail-free cards.

Then there are the excuses, running the gamut from pathetic (e.g., assertions that a harassed employee was “asking for it”) to the laughable (a harasser’s attitude that “I am too important” to be limited in what I do)

Of course, in some cases the employee accused of harassment really didn’t do it.

In its search for what really happened when responding to allegations of hostile work environment harassment, HR should be on the alert during internal investigations for the difference between assertions of irrelevant innocence that won’t stand up in a court of law and a true defense. Understanding this distinction can help HR identify the most appropriate corrective action.

Hostile Work Environment

To hold up in a court of law, the “but” in the “I did it, but …” defense should relate to the alleged absence of one of the elements of a hostile work environment claim. While different jurisdictions have defined the elements differently, the following are generally required in every jurisdiction for a viable hostile work environment claim to exist:

  • The conduct was unwelcome.
  • The conduct was objectively offensive to a reasonable person. In some jurisdictions, the gender, race, religion, national origin, age or disability of the complainant is considered in making this determination.
  • The conduct was subjectively offensive to the complainant. In other words, regardless of whether the conduct was objectively offensive, the employee actually had to be offended by it.
  • The offensive conduct was severe or pervasive.
  • The conduct was “because of” sex, race, religion or other protected status.
  • The employer should be held liable for the conduct based on its actions or nonactions. This determination depends in part on whether the person engaging in the offensive conduct is a supervisor, coworker or non-employee.

No Bad Intent

The most common response employees have to a harassment investigation is that they did not intend to make anyone uncomfortable.

However, bad intent is not one of the requirements for a harassment claim. A hostile work environment can be based on the purpose (intent) or effect (impact). Accordingly, the fact that an employee did not intend to make anyone uncomfortable is not a defense to an employee’s bringing a noose into a workplace, leaving a Hustler magazine on a desk or mimicking an immigrant’s accent.

While intent is 100 percent irrelevant to objectively offensive behaviors, intent is not necessarily 100 percent irrelevant with regard to conduct that is less clear in terms of its appropriateness.

For example, assume an employee tells a co-worker that she looks “attractive,” which he means as “nice” but which she hears as “hot.” Can we honestly say that the absence of bad intent is completely immaterial here?

When we are in an arguably gray area, intent is one factor an employer may consider in assessing what is the appropriate corrective action. In other words, the absence of bad intent does not excuse the wrong, but in some circumstances it may mitigate the remedy.

Even if we are in a gray area, whether the absence of bad intent is a mitigating factor with regard to corrective action may turn on other factors, such as:

  • Whether there have been prior warnings from management.
  • Whether the complainant previously had indicated that the conduct was unwelcome.
  • Whether the employee engaging in the inappropriate conduct has received sensitivity training.

Affirmative responses to these kinds of questions make it more difficult to mitigate the corrective action based on intent.

A variation of the “no bad intent” defense is the “accidental harassment” defense: The employees engaging in the inappropriate bantering or other conduct contend that they did not intend the employee who has complained to hear or see such bantering or other conduct. This defense almost always fails.

In these circumstances, the harassment is akin to “secondhand smut.” If conduct pollutes an employee’s work area, he or she may have a viable claim, even if the conversations or materials were not about or directed at the employee.

‘It Was Only a Joke’

Related to the “no bad intent” defense is the “it was only a joke” defense. Harassment is no joking matter, and the fact that an employee was only “joking about” something is not a defense to sexist jokes, religious jokes or jokes that relate to any other protected group under federal, state or local law. Substitute “make fun of ” for “joke about” and the emptiness of the defense becomes clear.

Employers need to be careful not to state or suggest that jokes involving protected groups are unfunny solely because individuals in the groups being maligned could be offended by them. Unfortunately, sometimes what is said to redress harassment allegations sends the dangerous message that the diversity of the workforce interferes with having a good time.

You don’t need to be black to be offended by racist jokes any more than you need to be Catholic to be offended by pope jokes. As part of the explanation for the correction action, companies need to make clear that these kinds of jokes (whether written, oral or electronic) are inconsistent with company policy and offensive to the company, regardless of whether they offend anyone else in the workplace.

Consent

Another common defense is that the conduct was consensual. The employee might argue implied consent by virtue of the fact that the employee who is complaining now never complained before. Or, the employee may argue express consent on the ground that the complainant actively participated in the conduct about which he or she now complains.

As a legal matter, the state of mind of the complainant may be relevant. As noted above, harassment is actionable only if it is unwelcome.

The absence of a complaint, though, does not necessarily mean that the conduct was welcome. The complainant’s failure to make clear that the conduct was unwelcome may be excused for many reasons—for example, if the employer does not have a viable complaint procedure.

Even active participation in the conduct does not necessarily mean that the conduct was welcome. In the seminal case on this issue, Meritor Savings Bank FSB v. Vinson (477 U.S. 57 (1986)), the U.S. Supreme Court held that the plaintiff could proceed with her sexual harassment claim, even though she admittedly had sexual intercourse with her manager on numerous occasions. For Chief Justice William Rehnquist, the issue was not whether the intercourse was “voluntary” but rather whether it was “welcome.”

While the absence of a complaint and/or participation in the conduct are not necessarily defenses in and of themselves, they may provide factual support for the employer’s general defense that the conduct was not unwelcome. The dilemma is how to preserve the legal defense without suggesting that the company is excusing the unacceptable conduct at issue.

The key is to document the legal defense for future use but to focus on inappropriateness when taking corrective action. Consider the following example, which is designed to walk this razor’s edge: “Even though Jeff did not complain before and in fact actively participated in the bantering, this does not excuse what you did. Regardless of Jeff’s conduct, your conduct was unacceptable.”

‘He Started It’

Sometimes the “consent” defense goes one step further: The alleged wrongdoer contends that the complainant not only participated in the inappropriate conduct but also actually initiated the conduct about which he or she now complains. Is “he started it” a valid defense?

As a practical matter, the fact that the complainant may have initiated the conduct does not let the other employee off the hook. Assume two employees are having what they both acknowledge to be consensual sex in a conference room. Would you ask the employees who made the first move and then punish only him or her?

If the complainant initiated the conduct about which he or she complains, that may mean that he or she is subject to corrective action too. However, it does not excuse the accused.

Don’t forget the issue of power. Identical behavior is not identical if there is a power differential with regard to the parties engaging in it. A supervisor and subordinate who engage in sexual banter are not equally at fault.

Even so, an employee’s initiation of the inappropriate conduct may be helpful to a defense that the conduct was not unwelcome (or subjectively offensive). Again, the key is to preserve for the record the complainant’s role in initiating the conduct about which he or she now complains but without stating or suggesting that this excuses the behavior of others.

‘She Asked for It’

The wrongdoer may suggest that the complainant instigated the inappropriate conduct not by what the complainant said but by, for example, how he or she dressed or walked. This argument should be rejected outright as it comes dangerously close to what used to happen in rape cases—defense counsel hatefully argued that “she asked for it.”

If an employee’s attire or demeanor is too provocative, the employer can and should respond to the inappropriateness of the attire or demeanor but without focusing on how desirable the employee looks under the circumstances. This is particularly important, as many organizations now have more-flexible dress codes and employees sometimes come to work dressed (or not dressed) in ways we never would have dreamed of just a short time ago. Even so, employees don’t need to leave their sexual attractiveness at home; colleagues just need to control their responses.

Who We Are

Another category of defenses that fail relates to the identity of the party who has made the complaint or who has engaged in the alleged wrong. How could I have harassed the complainant, they ask, when:

  • We are the same gender. As we know, there can be not only opposite-sex but also same-sex harassment.
  • We are peers.Even though they do not have the same power as a boss, peers can contribute to the creation of a hostile work environment.
  • I’m the subordinate.Though relatively rare, subordinates can harass supervisors and management has the responsibility to protect supervisors from subordinates’ unlawful harassment.
  • We have different employers. Harassing the employees of another employer with which your organization works is obviously hideous business.

Time and Place

Sometimes employees defend themselves on the ground that the inappropriate conduct did not occur in the workplace. The problem with this defense is that it focuses on venue rather than relationships.

Assume a supervisor repeatedly calls a subordinate at home at night to ask him out for a date. The fact that the calls are off the clock and off-site is no defense; to the contrary, it may actually increase the degree of discomfort felt by the subordinate.

Or, assume there is a holiday or other employer-sponsored party. Even if attendance is theoretically voluntary, it is still a work-related function. What happens there can affect the relationships when the employees go back to “work.”

What if a group of male employees goes to a strip club after work? If they invite a female colleague to attend, she may be uncomfortable and the experience could be used as evidence to support a hostile work environment claim. If they try to avoid the hostile work environment claim by excluding the woman, the exclusion may serve as evidence of a “boys’ club” in a gender discrimination claim.

When taking corrective action in response to inappropriate off-duty conduct, employers need to be clear that discrimination in the form of genderbased exclusions is not a viable strategy for avoiding harassment claims.

‘I Hate You’ Defense

Sometimes an employee will admit to abusing another employee but then deny being an equal opportunity abuser. To the contrary, she will admit to abusing the other person selectively for one simple reason: intense dislike.

No matter how offensive conduct may be, it is not actionable if it is not because of gender or some other protected group. Where the harassment is on account of “personal animus” unrelated to an employee’s membership in a protected group, it may be lawful even though reprehensible. Accordingly, where that is the reason for the offensive conduct, the employer should preserve the legal defense by documenting it.

But as a business matter, strong corrective action should be taken.

‘I Am Soooo Important’

One defense that is never available is that “I am a very important person.” This excuse is rarely articulated, but often underlies an employee’s feeling of entitlement to engage in harassment or inappropriate conduct with impunity.

The more power someone has organizationally (because of position or revenue generation), the more problematic their inappropriate conduct. Even if they don’t say so expressly in their decisions, judges and juries expect more from “very important” people and will hold them accountable if they flaunt legal principles that courts view as of the utmost importance.

Jonathan A. Segal, Esq., is vice chair of WolfBlock’s Employment Services Group and the managing principal of the WolfInstitute. His practice in Philadelphia concentrates on preventive planning, counseling and training.

Web Extras

SHRM web page
SHRM Online Workplace Law Focus Area

SHRM article:
Finally, California Sexual Harassment Training Regulations Are Final
(SHRM Online Workplace Law Focus Area)

SHRM toolkit:
Sexual Harassment


Equal Opportunity Abuser

Another defense that is being raised with increasing frequency is the equal opportunity abuser defense.

Assume an employee alleges “nonsexual” sexual harassment—that is, for example, “My manager yells and screams only at women.” The equal opportunity abuser defense would be “That’s absolutely not true. I yell and scream at everyone, women and men alike.”

There are a number of problems in raising the equal opportunity abuser defense. As an HR matter, raising the defense may cause serious injury to your employer’s brand. Proving that all employees are abused equally and consistently hardly makes your organization an employer of choice.

Moreover, the equal opportunity abuser defense may be a difficult defense to prevail on as a matter of law. That said, there are cases in which the defense has prevailed. Accordingly, as with many of the other defenses discussed in this article, employers should document that the abuse is meted out consistently to preserve the litigation defense but then take corrective action as if the defense were not available.

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