‘Equal-opportunity harasser’ defense may not save you in court

You may think that if an employee subjects both male and female co-workers to the same offensive conduct, employees of neither sex can file a sexual-harassment lawsuit.

In past cases, employers have won such lawsuits by pointing out that the employee was an "equal opportunity" harasser.

Our advice: Don't count on this equal-opportunity harasser defense to save you in court. Employees can't harass simply because they do it to both sexes. You can still draw a hostile-environment claim in such cases.

Best bet: Focus your efforts on preventing and stopping all inappropriate behavior in the first place.

Recent case: Technician Lisa Petrosino was the only female employee in her facility. She claimed her work environment was hostile to women, due to her male co-workers' sexual comments, drawing of graphic pictures and making disparaging remarks about women. Petrosino felt forced to quit. Then she sued, alleging a hostile work environment under Title VII.

A lower court initially sided with the company, agreeing that the inappropriate conduct wasn't always directed toward her. Men were sometimes the targets, as well. But a federal appeals court overturned that decision. It drew a distinction between situations in which the hostile environment is more offensive to women than men. While all employees were exposed to the sexually offensive behavior, a jury could reasonably find the conduct more demeaning of women than men. And that defines a sexually harassing work environment, the court said. (Petrosino v. Bell Atlantic, Nos. 03-7366, 03-7708, 2nd Cir., 2004)