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Explicit Sex Talk by the ‘Victim’ Can Be Used as Harassment Defense

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in Discrimination and Harassment,HR Management,Human Resources

If an employee claims she was sexually harassed but the evidence shows that she gave as good as she got, you have a good defense in hand. As a new ruling shows, employees' sexual statements can be used against them when they sue for sexual harassment. (Remember, federal law says sexual harassment must be "unwelcome" to be illegal.)

That's why HR professionals investigating harassment should make careful notes about the alleged victim's own conduct. Ask co-workers directly whether the employee making the harassment charge has contributed to the allegedly sexually charged environment. But don't pry into conduct outside the workplace. As the following case shows, only workplace behavior is relevant.

Recent case: Mary Wilson was the only woman in the Des Moines public works' sewer division. After being fired for absentee problems, she filed a sexual harassment lawsuit.

At trial, the city presented evidence that Wilson regularly engaged in sexually explicit language and behavior at work, including talk about vibrators and male sex organs. She objected to the testimony, but the 8th Circuit ruled it admissible, finding it persuasive evidence that the alleged sexual harassment was welcomed and therefore not sexual harassment. The court refused to allow testimony about Wilson's activities outside of work. (Wilson v. City of Des Moines, No. 05-1444, 8th Cir., 2006)

Final tip: Collect co-worker statements as soon as possible after a complaint, before memories fade.

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