Allegations of sexual harassment in the workplace can lead to significant liability and reputational harm. Our federal defense lawyers and former federal investigative agents rely on centuries of combined experience to protect employers against costly allegations.
For employers, few allegations carry more weight than allegations of sexual harassment. Not only can sexual harassment allegations lead to substantial damages if proven to be true; but, if made public, they can lead to incalculable loss of goodwill as well. Employees can quickly turn on employers that they feel are not doing enough to take the allegations seriously, and employees’ posts on social media can turn an isolated (and perhaps misrepresented or fabricated) incident into national news.
At Oberheiden P.C., we provide legal representation for employers facing sexual harassment allegations nationwide. We represent employers of all sizes in all industries, and we handle cases in federal district court as well as proceedings involving the U.S. Equal Employment Opportunity Commission (EEOC) and other federal agencies. If your company is at risk due to allegations of sexual harassment, we can protect it. But, it is extremely important that your company respond to the allegations quickly (and correctly); and, as a result, it is imperative that you contact us as soon as possible.
Companies Must Be More Careful Than Ever When Responding to Allegations of Sexual Harassment
In today’s world, companies must be more careful than ever when responding to allegations of sexual harassment. All types of allegations can lead to wide-ranging consequences, and companies must execute strategic and coordinated responses in order to uncover the facts and avoid additional allegations of being complicit in, ignoring, or attempting to “cover up” unlawful conduct.
As a baseline, companies should have policies and procedures in place for responding to sexual harassment allegations, and they must consistently follow these policies and procedures when faced with any allegations. Not only can this be critical to collecting key evidence for defending against the alleged victim’s allegations, but it can be essential for avoiding the types of additional allegations referenced above as well.
When Can Employers Face Liability for Sexual Harassment in the Workplace?
Broadly speaking, there are two types of sexual harassment that can expose employers to liability: (i) hostile work environment, and (ii) quid pro quo. However, there are numerous examples of prohibited conduct that fall into each category; and, when faced with allegations, employers must be careful to avoid building defenses that focus on certain allegations while leaving them exposed to others.
1. Hostile Work Environment
As summarized by the U.S. Equal Employment Opportunity Commission (EEOC), “[h]arassment becomes unlawful where . . . the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” In determining whether sexual harassment creates a hostile work environment, the federal courts and the EEOC consider various factors, including:
- Whether the alleged misconduct involves significant harassment or, “[p]etty slights, annoyances, and isolated incidents (unless extremely serious)”;
- Whether the alleged misconduct was physical, verbal, or perpetrated via emails or text messages;
- Whether the alleged misconduct can be considered patently offensive;
- Whether the alleged harasser is a co-worker, supervisor, executive, or third party;
- Whether there is a single alleged harasser or there are multiple alleged perpetrators;
- Whether the alleged harassment targeted one employee or multiple individuals; and,
- Whether the alleged misconduct, “create[s] a work environment that would be intimidating, hostile, or offensive to reasonable people.”
The conduct that creates a hostile work environment can be performed by employees at any level of the organization; and, in certain circumstances, employers can face liability for third-party sexual harassment as well. Once again, gaining a clear and comprehensive understanding of the alleged conduct is critical, as this will dictate the types of defenses that are available.
2. Quid Pro Quo Sexual Harassment
Sexual harassment is also prohibited in circumstances in which, “enduring the offensive conduct becomes a condition of continued employment.” This is what is commonly known as quid pro quo sexual harassment. If an employee is forced to submit to unwanted sexual advances, conduct, or contact, or if an employee feels as though he or she has no choice but to allow the conduct in order to preserve his or her job status and eligibility for advancement opportunities, then the conduct is unlawful as a form of quid pro quo.
With regard to both types of sexual harassment, prohibited conduct can take many forms, and it can be perpetrated by multiple parties against multiple individuals. As the EEOC explains:
“Offensive conduct may include, but is not limited to, offensive jokes, slurs, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Harassment can occur in a variety of circumstances, including, but not limited to, the following:
- “The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
- “The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
- “Unlawful harassment may occur without economic injury to, or discharge of, the victim.”
Defenses to Allegations of Sexual Harassment in the Workplace
While unlawful sexual harassment can take many different forms, there are also many potential defenses to employees’ allegations of sexual harassment in the workplace. Some examples of these defenses include:
- Proof of Falsity – Unfortunately, some employees will make false allegations in an attempt to secure financial compensation or protect their jobs. While this is an issue, it is also an issue that can be overcome. By conducting exhaustive investigations led by our former federal law enforcement agents, we are able to uncover false allegations and quickly resolve these types of claims.
- Conduct Insufficient to Constitute Sexual Harassment – Not all statements and conduct that are sexual in nature rise to the level of actionable sexual harassment. If an employee’s claims are based on conduct that, while perhaps ill-advised, does not amount to a violation of Title VII of the Civil Rights Act of 1964 (Title VII), our defense attorneys can use this to protect your company. We can also help your company enhance its anti-harassment policies and procedures and provide additional training or retraining as necessary.
- No Quid Pro Quo – In cases involving allegations of quid pro quo sexual harassment, a potential defense strategy is to prove that no employment opportunity or benefit was actually withheld (or threatened to be withheld). However, presenting this type of defense requires a strategic approach, as the alleged misconduct could still lead to exposure in some cases.
- Reasonable Care to Prevent and Address Sexual Harassment – In certain cases, employers can present an affirmative defense by demonstrating that they took reasonable care to prevent and address the prohibited conduct while the victim failed to take advantage of the protections and remedial measures that they offered. However, as an affirmative defense, this involves acknowledging that the alleged misconduct occurred; and, as a result, this defense requires careful and strategic execution as well.
- Evidentiary Issues, Statute of Limitations, and Other Defenses – In addition to defenses that are specific to sexual harassment allegations, employers will often be able to utilize various other types of defenses. For example, evidentiary issues may prevent the alleged victim from presenting a successful case, and Title VII’s statute of limitations will come into play in many cases as well. As employer defense counsel, we regularly represent companies in harassment and discrimination cases, and we can use our experience to effectively present all defenses your company has available.
About Oberheiden P.C. | Defense Counsel for Employers Nationwide
Oberheiden P.C. is a federal compliance and defense law firm that represents employers nationwide. Our firm is comprised entirely of senior attorneys and litigation consultants, many of whom are former prosecutors and investigative agents with the U.S. Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and other federal agencies.
In sexual harassment cases, this type of experience can be crucial. Employers need to make informed decisions, they need to do so quickly, and they need to do so with all pertinent federal litigation risks in mind. Conducting an efficient, exhaustive, and covert investigation can also be essential, as sexual harassment cases tend to be highly fact-intensive, and getting to the bottom of the alleged victim’s complaint is a key early step in determining what defenses are available.
At Oberheiden P.C., we offer employers that facing sexual harassment claims:
- Representation by senior attorneys, litigation consultants, and investigators
- Deep experience in federal employment discrimination and sexual harassment cases
- Direct, 24/7 access to our attorneys by phone, text, and email
- Effective defense representation driven by proven investigation and litigation strategies
- Comprehensive defense for employee lawsuits, EEOC claims, and federal law enforcement matters
Schedule a Free and Confidential Case Assessment Now
If your company is facing sexual harassment allegations, we encourage you to contact us for more information about our federal employer defense practice. To speak with a senior defense attorney at Oberheiden P.C. as soon as possible, call 888-680-1745 or inquire online now.