You may think that an employee who admitted to bringing a racy photo to work and showed it around couldn’t later complain when she became the target of sexual harassment. You would be wrong.
In most cases, the employee will still have a chance to let a jury decide whether the conduct the employee later complains about was, in fact, unwelcome.
Recent case: Deanna went to work for a company that provides portable toilets to construction sites and events. Her job was to deliver and pick up the units. She quit after complaining that a co-worker frequently sexually harassed her by making lewd comments and groping her.
Then she sued, alleging she had no choice but to quit after the owners failed to respond to her complaints and after the co-worker taunted her by saying that he wasn’t going to lose his job despite them.
The company responded to the lawsuit by alleging that the harassment wasn’t unwelcome. It said Deanna participated willingly and even started the harassment by bringing in a nude photograph. Deanna admitted to showing the photo, but claimed it wasn’t of her and that the co-worker’s behavior simply went too far.
The court said a jury should sort out whether the co-worker’s conduct was unwelcome and whether the harassment was severe enough to justify quitting. (Nelson v. Allan’s Waste Water Service, et al., No. 2:11-CV-01334, WD PA, 2013)
Final note: Immediately respond to sexual harassment complaints. Separate the individuals pending an investigation. Then reach a fast conclusion. If both parties participated, discipline them.
Whatever you do, don’t ignore the problem, because other employees also affected by the behavior (but who haven’t come forward) are waiting to see what you do.