Finding the Facts - Disciplinary and Harassment Investigation

harasser that the conduct is unwelcome. But, any past conduct of the complainant that is offered to show “welcomeness” must relate to the alleged harasser.

Case Studies In a case before the EEOC, the Commission rejected a complainant’s charge of sexual harassment because the complainant failed to establish that the alleged conduct was unwelcome. The complainant and the alleged harasser had a two month history of mutual sexual bantering (e.g., telling dirty jokes and making vulgar comments). The Commission held that the complainant had created the impression among co-workers, including the alleged harasser, that she welcomed the sexual banter. The simple fact that she subsequently ceased participating in the banter was not tantamount to affirmatively notifying the alleged harasser that such conduct was no longer welcome. 195 Likewise, a district court held that a complainant’s charge of sexual harassment was without merit because she had initially participated in the alleged offensive conduct. The district court determined that if the complainant subsequently found the conduct to be objectionable, the complainant should have notified the alleged harasser that the conduct was unwelcome. 196 However, the Fourth Circuit held that “[the complainant’s] use of foul language or sexual innuendo in a consensual setting does not waive her legal protections against unwelcome harassment.” In so holding, the Fourth Circuit rejected the trial court’s conclusion that the complainant’s past conduct with other individuals established that “she was the kind of person who could not be offended by such comments and therefore welcomed them generally.” Therefore, investigators must be cautioned that statements regarding the complainant’s prior conduct with individuals other than the alleged harasser carry little, if any, weight in determining whether a hostile environment was created by the alleged harasser. 197

The Objective Standard Was the conduct so severe and/or pervasive that a reasonable person of the complainant’s gender, sexual orientation, race, etc., would consider it to be abusive or hostile? Note that the legal standard is whether a reasonable person in the same protected class as the complainant would find the conduct offensive, abusive, or hostile. 198 That is, if a woman complained about sexual harassment, would a reasonable woman consider the conduct to be sexual harassment? Alternatively, if a man complained about sexual harassment, would a reasonable man consider the conduct to be sexual harassment?

The subjective and objective standards are intertwined with the totality of the circumstances factors to determine whether harassment occurred:

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 120