Finding the Facts - Disciplinary and Harassment Investigation

Note: The lack of a contemporaneous complaint(s) does not dispose of the validity of a harassment complaint if the complainant has legitimate reason to fear repercussions from complaining about the harassment. Reasonable fear of retaliation may very well explain a delay by the complainant in opposing the conduct.

 Did the complainant actively participate in the conduct?

Note: The fact that a complainant may have participated in the conduct does not necessarily indicate that the conduct was welcome. Because sexual attraction may often plan a role in the day-to-day social exchange between employees, “ the distinction between invited, uninvited-but-welcome, offensive-but-tolerated, and flatly rejected” sexual advances may well be difficult to discern. 191 However, impermissible “unwelcome conduct” has been generally defined “in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive. ” 192

Case Studies The Supreme Court, relying on the guidelines published by the EEOC, has held that “the fact that sex-related conduct was ‘voluntary,’ in the sense that the complainant was not forced to participate, is not a defense to a sexual harassment lawsuit brought under Title VII . . . . The correct inquiry is whether [the complainant] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.” The Court further noted that although evidence of the complainant’s sexually provocative physical or verbal conduct may be relevant in determining whether she found the alleged harasser’s conduct unwelcome, the evidence should be admitted with caution to avoid an unfair prejudice against the complainant. 193 However, under certain circumstances, the voluntary and participatory conduct of the complainant can mitigate the creation of a “hostile work environment.” For example, a court rejected a female complainant’s claim of sexual harassment because she regularly used vulgar and sexually charged language with her co-workers, engaged in sexually exhibitionist conduct, and sexual horseplay. The court determined that the complainant welcomed the sexual hijinx of her co-workers and the evidence of her welcoming the activity proved “fatal to her claim.” 194

 Did the complainant and alleged harasser have a prior, consensual relationship?

If there was a prior, consensual relationship which would lead the alleged harasser to believe that the advances were welcomed, it is important for the complainant to communicate to the alleged

Disciplinary and Harassment Investigations ©2019 (e) Liebert Cassidy Whitmore 119