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Employment Law: Accused of Harassment?
Here's What You Need to Know If a Worker Complains of Sexual Harassment

by Deborah Weinstein

Fall 2002, Vol. 65, No. 3

A secretary has complained to the firm's management that I sexually harassed her. This is basically a "he-said/she-said" with no witnesses. I don't think I did anything wrong. I'm concerned because I think the investigator believes her and not me. I am a senior associate on track for partnership. What should I do? If they fire me, do I have grounds to sue them? Get a grip. You have a lot at stake here. How you handle this situation likely will affect your legal career, now and for years to come. Retain counsel, initially to coach you from behind the curtain. When an employer receives a complaint of sexual harassment, the law requires it to take "prompt" remedial action. Ergo, be prepared for things to move quickly.

The Investigation
Participate fully in the investigation. You want to show that you haven't violated the firm's sexual harassment policy. Ask to see the written complaint, and request that the firm keep the allegations confidential.

Defend yourself by telling your side of the story truthfully and persuasively. Deny firmly any untruthful allegations. Cooperate. Tell the investigators that you hadn't meant to offend anyone and/or that your intentions were misunderstood. Reaffirm your commitment to the firm's anti-harassment policy and promise to be ever more vigilant in the future not to unintentionally offend anyone. Keep your cool. Do not express anger. If you succeed in convincing the investigators that your conduct met the standards set by the firm's sexual harassment policy, ask again for the matter to remain confidential and that the firm refrain from placing anything about it in your personnel file. And count yourself among the very fortunate.

Fight or Flight?
If, despite your efforts, the firm is prepared to find against you, whether or not you believe this would be a just result, the law provides you with little recourse. The law of sexual harassment should be changed to better balance the rights of an alleged harasser with those of the complainant and to provide stronger incentives for the employer to protect the rights of both equally. Unless and until these changes are made, the options for vindicating your rights through the courts may be inadequate.

Discuss your options with your attorney. Unless counsel can assure you that you have a legally cognizable claim and strong evidence to support it, then the best course may be to cut your losses. Any lawsuit you bring against your employer likely will expose the allegations of sexual harassment against you to the world. If you are interested in having a legal career in the future, think seriously about the potential risks to your reputation that may accompany litigation whether you win or lose.

Ask yourself, which do you want more-a legal victory or an unblemished reputation? If your answer is your reputation, then forget about suing your employer and move on of your own accord. This may be a bitter pill to swallow if you feel that you have been unjustly accused and want to set the record straight. But unless you have a slam dunk case to bring against your employer and are willing to risk the public associating you with sexual harassment, you'll be glad you chose this course. Here's why:

Favoring Alleged Victim
In general, sexual harassment law may encourage employers in a he-said/she-said situation to favor the complainant, particularly when the alleged harasser is in a supervisory or management position and the complainant is a subordinate. A brief look at sexual harassment law explains why frequently the most prudent course for the employer is to terminate or otherwise discipline the alleged harasser even when the evidence of any wrongdoing is thin or inconclusive.

The Equal Employment Opportunity Commission (EEOC) defines sexual harassment as unwelcome advances, requests for sexual favors or other verbal or physical conduct of a sexual nature when (1) submission to such conduct is an explicit or implicit condition of employment, (2) submission to or rejection of such conduct is used as the basis for employment decisions, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive work environment. Historically, the first and second have been known as "quid pro quo sexual harassment" and the last category as "hostile work environment sexual harassment." To be actionable, hostile work environment sexual harassment must be "severe and pervasive."

When the harassment involves co-workers, the employer may be held liable if it knew or should have known of the harassment and failed to take "prompt effective remedial action." The U.S. Supreme Court has held that the employer may, under some circumstances, have a defense to liability for hostile work environment sexual harassment perpetrated by a supervisor where it can prove that it exercised reasonable care to prevent and promptly correct sexually harassing behavior and the complainant unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer to avoid harm.

Employer's Best Defense
From a risk control point of view, the prudent employer will want to avoid a situation where a complainant is unhappy with the employer's response to his or her complaint. If the employer determines that the allegations are false and takes no action against the alleged harasser or decides that the conduct occurred but doesn't warrant serious discipline, the complainant may not be satisfied. He or she may file a charge of discrimination with the EEOC or other administrative agency and later a complaint in court against the employer. To avoid liability, the employer will want to be prepared to defend by showing it took prompt and effective remedial action.

An employer may reasonably determine that the best way to forestall this circumstance and to prepare to defend itself in a worst-case scenario of litigation is to terminate the alleged harasser or otherwise to treat the offense as extremely serious. As a result, in an abundance of caution, many employers respond to an internal complaint with what may be overly harsh consequences to the alleged harasser. In this way, the employer will be best prepared to show that it has complied with the law.

Compounding this situation, many employers have "zero tolerance" policies with respect to sexual harassment. These policies prohibit sexual harassment in the workplace and allow an employer to terminate or otherwise discipline an employee for harassing conduct that is prohibited by the employer's policy but fails to rise to the level of actionable sexual harassment.

Zero tolerance policies, for example, may provide that a harasser will be disciplined or terminated for one indiscretion. The law, however, is unsettled with respect to when one incidence of harassing conduct is sufficient for liability. This was an issue in Jones v. Clinton where Paula Jones alleged that then-Governor Clinton had exposed himself to her and groped her on one occasion. But an employer is free to impose a zero tolerance policy concerning sexual harassment that prohibits such conduct regardless of whether a court would find the harassment sufficiently "severe and pervasive" to violate the law.

As a result, an alleged harasser's defense to the employer that the conduct was not "sexual harassment" may fall on deaf ears. And rightly so because an employer is free to set higher standards for conduct in its workplace than the law requires. The general rule of "at-will" employment, followed by most states, is that an employer may terminate an employee for any reason or no reason at all as long as it is not an unlawful reason. Because an employer's zero tolerance policy may be more stringent than applicable legal standards, showing that you haven't broken any laws isn't enough to show that the employer wrongly terminated you.

Branded With a Scarlet H
Do you have a case against your employer if it disciplines you or terminates your employment, you believe unjustly? Probably not. More likely, you may find yourself named as a defendant or a witness in a suit brought by the complainant against the employer. There, allegations against you will be aired in open court and you will have the opportunity to defend against them.

You'll have your day in court, but at great expense to your reputation. Even if you and the employer prevail, the allegations alone may damage your reputation and affect your future employability, albeit unjustly. The risk is that even if you are exonerated in the litigation, people will remember the allegations against you and always wonder whether they may be true-despite a verdict in your favor. As a result, you could be branded with a virtual "Scarlet H," for harasser, a label that tends to stick.

Who can forget Anita Hill's allegations against Justice Clarence Thomas or Paula Jones' against Clinton? Both men had opportunities to defend themselves, though not with the safeguards imposed in litigation, in the court of public opinion and neither escaped being associated with sexual harassment.

Tempting as it may be to fight against these injustices, this is not a situation where the truth will set you free. Because of the employment-at-will rule, in most states there is no cause of action for an alleged harasser being treated too harshly or unjustly by an employer. Many have tried to exonerate themselves in court, but most have failed.

For example, in Mackenzie v. Miller Brewing Co., a longtime employee was terminated, inter alia, after repeating to a female co-worker a sexual joke he heard on the television show "Seinfeld." He filed suit claiming wrongful termination. At trial, the jury returned a twenty-five-million-dollar verdict against the employer. The verdict was reversed on appeal and the employee never received a dime from the company.

In Pennsylvania, the Workers Compensation Act, the exclusive remedy for workplace injuries, may bar many claims. Last year, a Philadelphia jury awarded $150,000 to a man who claimed that his employer, to head off a possible sexual harassment suit, invaded his privacy by subjecting him to an embarrassing, police-style interrogation after he had an innocent tryst with a female co-worker that she reported to management as rape. The court overturned the jury award finding that the Workers' Compensation Act barred his invasion of privacy claim because his alleged injuries occurred during the course of his employment. The court upheld the jury's decision on an attendant claim that the employer defamed him by making a false report about him, but decided that the jury correctly awarded no damages on that claim. The case is on appeal.

In addition to defamation, claims for conspiracy or unlawful discrimination may be cognizable depending on the circumstances. A New Jersey jury awarded a teacher more than $300,000 where it found that a group of employees conspired to falsely accuse the plaintiff of sexual harassment. Discipline for alleged sexual harassment may give rise to a discrimination claim where the employer's actions are a pretext for discrimination. A cause of action may arise, for example, where the employer chooses to believe a minority complainant because of concerns the complainant will allege that the employer's investigation was tainted by discriminatory bias in favor of the alleged harasser. Likewise, where the alleged harasser is a minority and the employer disbelieves his defense because of his race, age or other protected status, the alleged harasser may have a cause of action for unlawful discrimination.

An alleged harasser may be in luck if he has an employment agreement and can show that the termination of his employment breached that agreement. If unfounded discipline is meted out to a union or governmental employee, then the employee may have a claim for discipline or termination without "good cause."

But even good cause cases are not easy for a falsely accused harasser to win. In most jurisdictions, the jury's role in deciding these cases is not to decide whether misconduct actually occurred but whether the employer concluded misconduct occurred fairly, honestly and in good faith. The California Supreme Court, reviewing a case brought by an executive discharged for sexual harassment that he denied committing, found that the lower court erred in instructing the jury that to prevail the employer must prove the sexual harassment actually occurred. The proper instruction, the court held, was that no liability can be found if the jury determines that the employer, acting in good faith and following an appropriate investigation, had reasonable grounds for believing at the time the discharge decision was made that the plaintiff had engaged in harassment, not whether he in fact had done so.

A Valuable Player?
While management is unlikely to take risks associated with sexual harassment allegations for the purpose of keeping an associate attorney on board, it may take a different view if the alleged harasser is a big rainmaker or otherwise highly valued partner. An associate attorney could also fit this profile if a powerful partner needs or highly values the associate's assistance. Manage-ment may be motivated to side with the alleged harasser with this profile and take steps to keep the attorney in place. It is not unusual for management under these facts to negotiate with the complainant, usually in the context of a severance agreement, to agree not to sue the firm in exchange for a monetary payment. The risks to the firm of losing a valuable player, bad publicity and a lawsuit are alleviated and the complainant receives bargained-for compensation for her alleged damages to boot.

Over the long term, the law firm that takes this route does so at its own peril. The risk is that the attorney bailed out by his firm will fail to get the message that his prior conduct was unacceptable or, at best, may be easily misunderstood as sexual harassment. If another employee subsequently brings a sexual harassment claim in court alleging misconduct by the same attorney, the earlier complainant may be compelled by subpoena to testify in the litigation even if the severance agreement includes a confidentiality provision.

The law firm Baker & MacKenzie chose to keep a valuable rainmaker on board despite staff members' allegations of sexual harassment. When a secretary sued the firm because of the rainmaker's harassing conduct, her star witnesses were a parade of former firm employees who had been subjected to his harassment and whose complaints had been ignored or deflected by the firm. The jury returned a $6.9-million verdict, later reduced to $3.9 million.

Protect Your Reputation
The law of sexual harassment is, relatively speaking, still in its infancy. The U.S. Supreme Court first recognized a cause of action for sexual harassment in 1986. Courts and administrative agencies have made considerable progress in setting equitable workplace standards to prevent sexual harassment and to encourage employers to take prompt remedial action in response to unlawful conduct. In general, employers have jumped on the bandwagon to comply with the law. Much remains to be done, however, to balance the rights of the alleged harasser with those of the complainant and create greater incentives and safeguards for employers to protect the rights of the alleged harasser while preventing sexual harassment and responding effectively to protect employees subjected to harassing conduct at work.

As this magazine goes to press, a New Jersey Superior Court judge has just ruled that New Jersey law requires employers to make fair and thorough investigations of sexual harassment complaints. If an employer fails to do this and an alleged harasser is fired, the employer may be liable for wrongful discharge.

For safeguarding the rights of the innocent alleged harasser, this would appear to be as good as it gets. But stay tuned. This is a legal issue that is not likely to go away quietly.