How not to prove "welcomeness" in a sex harassment case

Employers, know your limits.

As most of our readers know, for inappropriate behavior to be "sexual harassment,” it has to be "unwelcome" to the recipient.

When doing harassment training, I’ve found that a lot of people don’t know this. But as soon as I give them some examples, they pick it right up.

For example, if two co-workers are dating, or living together, or having an affair, or married, would it be sexual harassment if one partner kissed the other in the workplace?

Of course not. A kiss between partners is not unwelcome to the kissee. (Well, maybe if they had an argument the night before, and one partner was ready to make up before the other was, but even then the temporarily unwelcome kiss would not be sexual harassment in the context of their relationship.)

Another example: What if you had a major crush on your co-worker, and one day she propositioned you in the break room? And you’d been dreaming of this moment ever since you met her? Was her behavior inappropriate for the workplace? You bet. But did she sexually harass you? No. Again, her behavior was not unwelcome to you.

NOTE: There can be sexual harassment liability even in a consensual setting if co-workers see the behavior and find it offensive. But that's not the subject of this post.

Proving "welcomeness" the right way

"Welcomeness" is an issue in a lot of sexual harassment cases. In the typical scenario, a woman accuses a male supervisor or manager of sexual harassment and presents some damning evidence in support of her case. Explicit text messages, sometimes including video, recorded conversations or voice mail messages, you name it.

(Usually not email. After 30-some years, we've finally gotten it into our heads that email is not private, so we behave ourselves in email.)

The accused supervisor admits that those X-rated messages were all from him. But then he says he has texts and videos from his accuser that are even worse. If his are X-rated, hers are Triple X. That’s because they were in a consensual sexual relationship, he broke up, and she got mad and accused him of sexual harassment to get even OR her husband found out about the relationship and she's making the accusation to save her marriage. And, yes, that’s the supervisor on her recordings, but he has the full recording which includes all kinds of vile things she said to him as well. Which she edited out of the copy that she gave to her attorney.

The evidence is presented to the woman's attorney, and the case falls apart. And the employer walks out of the darkness into the beautiful, rosy dawn while schmaltzy music swells in the background.

Proving "welcomeness" the wrong way

But what if an employer tried to prove that the alleged harasser’s behavior was “welcome” by looking at the accuser’s sexual history -- with other people? Like, asking whether she is on the pill. Or asking her to list every person she’s ever had sex with, dating back to age 16. Or asking whether she views porn in the privacy of her own home. Or asking whether she’s ever had an extramarital affair. With anybody. Is that fair game?

No, it is not.

A recent decision from a federal court in Idaho provides a good lesson in how an employer should not try to prove that allegedly sexually harassing behavior was “welcome.”

In this case, Carbajal v. Hayes Management Service, the plaintiff alleged that the president and chief executive officer of the employer sexually harassed her. The employer wanted to prove that the behavior of the President/CEO was welcome (not “subjectively offensive”) to her. Or, that if it was unwelcome, it was only because she was overly sensitive.

Rather than try to present evidence that the plaintiff had a consensual relationship with the accused harasser, had the hots for the accused harasser, flirted with the accused harasser, or laughed at dirty jokes told by the accused harasser, the employer filed a motion asking the court to order the plaintiff to undergo what is called a “psychosexual evaluation.” Under Idaho law, that is “’an evaluation that specifically addresses sexual development, sexual deviancy, sexual history and risk of reoffense as part of a comprehensive evaluation of an offender.’” (Bold and italics in original.) The purpose of a psychosexual evaluation -- at least, in Idaho -- is to “assist with sentencing [criminally] convicted sex offenders and assess their ‘future dangerousness.’”

What's more, the employer had already served the plaintiff with a discovery request asking her to name every person with whom she had had “sexual contact” during a five-year period. And the request defined “sexual contact” in a very explicit and all-encompassing manner. (Since this is a G- or, at worst, PG-13-rated blog, I won't quote the definition here, but you can read it yourself in Footnote 20 of the court’s decision, linked above.)

As you have probably guessed, the court not only denied the employer’s motion but also ordered the employer to pay the plaintiff’s attorneys’ fees incurred in responding to the motion.

Moral of the story

Yes, you can win a harassment case by showing that the alleged harasser’s behavior was not “unwelcome” or “offensive” to the accuser, but you need to focus on her response to the alleged harasser – not consensual behavior she may have had with others. (Especially when the alleged harasser is the President and CEO of the company, which means she might have had difficulty rebuffing him, for cryin' out loud.)

Did you remember that Napoleon Dynamite lived in Idaho? I can't believe his house is worth $623,500. Oh, never mind. That was posted in February.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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