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Include complainer’s actions in sexual harassment investigation

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in Discrimination and Harassment,Human Resources

Sooner or later, you’ll be deep in a sexual harassment investigation. When you are, make sure you look at everyone’s words and actions, not just the alleged harasser’s. Take detailed notes, preserve any records that may exist and save them for possible use later.

It’s especially important to get a complete picture if you sense that the employee who came forward with the complaint was actively participating in what she’s now alleging was sexual harassment and a hostile work environment. If you can prove she took part, a court likely will allow you to show the “victim” wasn’t at all offended by what was happening around her.

Recent case: Tera Cunningham was a patrol officer for the town of Ellicott. She sued, alleging she had worked in a sexually hostile work environment. Her employer conducted an investigation after she complained.

During the investigation, her employer spoke with co-workers, who reported the sexually explicit comments Cunningham routinely made. In addition, there were transcripts of sexual banter over the police radio between Cunningham and fellow officers.

Cunningham asked the court to ban the radio transmissions transcripts from court so the jury wouldn’t hear them. The court refused, concluding that Cunningham’s “initiation of inappropriate, sexually charged language could be admissible to refute her claim.” It also said it would allow co-workers to testify about her “graphic language.” (Cunningham v. Town of Ellicott, No. 04-CV-301, WD NY, 2007)

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