When the tables are turned; courts consider suits by alleged sexual harassers.

The concept of sexual harassment as sex discrimination spent a decade earning judicial acceptance before the U.S. Supreme Court announced its first relevant ruling in Vinson v. Meritor Savings Bank.(1) It took another five years and a contracts professor named Anita Hill to finally catapult the issue into the public arena.

Thanks to the military and a number of other public servants, a week rarely goes by without a reminder of the pervasiveness of sexual harassment as a social problem. More women than ever before are seeking redress, and employers are on notice that this conduct will no longer be tolerated in the workplace.(2)

Interestingly, the increase in sexual harassment litigation has generated a new body of law in the form of suits by people accused of and disciplined for sexual harassment. Some have challenged their termination or discipline directly. These claims may be subject to the provisions of the Labor Management Relations Act or other labor laws.(3) Others have brought Title VII suits claiming that the sexual harassment charge and the subsequent adverse employment action were simply a pretext for sex,(4) race,(5) ethnic,(6) religious,(7) or age(8) discrimination or retaliatory discharge.

Claims brought by alleged sexual harassers include wrongful termination, invasion of privacy, violation of due process and free speech rights, defamation, and intentional infliction of emotional distress. Alleged harassers have also challenged denials of workers' compensation benefits.

There may be a number of reasons for the emergence of these claims. The integration of women into a discrimination free workplace has been an arduous process. These cases seem to indicate that perhaps alleged harassers cannot yet accept the breadth of inappropriate conduct and do not grasp that the rules regarding interaction between men and women at work are different from the rules that apply to them in other social situations.

A 1995 report by the U.S. Merit Systems Protection Board indicates that there are still some behaviors that many people do not recognize as sexual harassment--even though the law does. The report also shows that many people believe that whether conduct constitutes sexual harassment depends on the intent of the harasser.(9) These results support the notion that people disciplined for harassment may tend to feel wronged and may want to be vindicated.

Whatever the reason for these claims, they have generally faced a cool reception in the courts. Except when the discipline was clearly improper, judges have supported employers in their efforts to curb sex-ual harassment in the workplace.

When an employer discharges an employee for violating a sexual harassment policy, the relevant inquiry is whether "the decisionmakers believed at the time of the discharge that the employee was guilty of harassment, and, if so, whether this belief was the reason for the discharge."(10) Alleged harassers with records of other disciplinary problems have had less success challenging their termination or discipline.

For example, in Carosella P. United States Postal Service, the court found that a supervisor was properly discharged when a preponderance of the: evidence showed that he had sexually harassed six female subordinates.(11) But in Downes v. Federal Aviation Administration, the court held that a manager was improperly demoted and reassigned when the alleged harassment was "trivial," did not establish a pattern, and did not alter the woman's job status.(12)

Wrongful Termination

Many states adhere to the employment-at-will doctrine. This gives the employer and the employee the right to terminate the employment relationship at any time with or without cause unless there is an agreement to the contrary. To sustain an action for wrongful termination in these states, the terminated employee must show that the employment relationship was based on a contract that specifically indicated the employment was not terminable at will.

Some courts have held that an employee may not rely on the existence of an employment handbook to create such a contract. In Johnson v. J. C Penney Co., in which an employee challenged his termination for alleged sexual harassment, the court held that the company's employment manual did not change the plaintiff's status as an employee-at-will under Texas case law. The court noted that if a manual has a disclaimer stating the manual does not constitute a contract, the disclaimer will negate any implication that the personnel procedures restrict the at-will relationship.(13)

Privacy

Employers have a duty to investigate allegations of sexual harassment, and their employees have a legitimate interest in knowing what activities could result in their termination. Courts have rejected most privacy claims by alleged harassers because other employees or the public at large have an overriding interest in the information.

In Smith v Arkansas Louisiana Gas Go., the court reversed a judgment against an employer for invasion of privacy.(14) Management had distributed memos advising staff managers of the plaintiffs demotion and another employee's termination because of alleged sexual harassment. The plaintiff said the employer violated his privacy rights when it disseminated the memos both inside and outside the company.

At trial, the employer had relied on a defense of qualified privilege, which protects employers from liability for communicating to selected employees its reason for disciplinary action against another employee. This privilege arises from the need to allow unrestricted communication--without threat of liability--about a matter in which the parties have an interest or duty. The trial judge had not instructed the jury about this defense, but the appeals court held that the defense applied.

The general public may have a legitimate interest in the disclosure of facts surrounding a sexual harassment investigation of a public employee. For example, the Montana Supreme Court rejected a mayor's privacy claim relating to a sexual harassment investigation. In an action against the mayor and city council of Hamilton by a public interest group under the state open meetings law, the city counterclaimed. It asked for a declaratory judgment on whether the mayor's constitutional right of privacy prevented disclosing the results of an investigation into his alleged harassment of city employees.

The court held that because the mayor, as an elected official, did not have a "reasonable expectation of privacy," he could not assert an overriding privacy interest in preventing publication of the report. Moreover, the city had already used public funds to settle with the complainant, and public funds would possibly be used to indemnify the mayor for his attorney fees. The court said the public was entitled to know the reason for this expenditure.(15)

Due Process and Free Speech

Alleged harassers have also pressed due process and First Amendment claims against their employers. In most reported opinions, these cases have been unsuccessfull.

For example, in Kennedy v. Marion Correctional Institution, the Ohio Supreme Court rejected the plaintiff's argument that he was entitled to prehearing discovery and a formal evidentiary hearing before being disciplined.(16) The court noted that he had been given written notice of the charges, copies of statements regarding the alleged harassment, and an opportunity to present his side of the story. These steps were sufficient to constitute due process, the court held.

Similarly, in Black v. City of Auburn, the court dismissed an action by a municipal police officer who was demoted for alleged sexual harassment of female officers, holding that the plaintiff did not prove that his demotion violated his due process or equal protection rights.(17) The court found that the plaintiff was not denied procedural due process for a number of reasons, including that he was afforded ample notice of the charges, a hearing was held, and he was aware of what types of behavior might offend female officers because he had attended seminars about sexual harassment.

Even employees who have been exonerated of sexual harassment charges have had difficulty bringing constitutional claims against their employers. In Workman v. jordan, a discharged captain in a sheriff's department sued after he was reinstated with back pay when it was determined in a hearing that he had not committed sexual harassment. He claimed procedural due process and First Amendment violations by the sheriff and others.(18)

The captain claimed he was deprived of a liberty interest in his good name and his property interest in continued employment when his supervisors placed allegedly stigmatizing documents in his personnel file. The court disagreed because the documents did not contradict the finding by the hearing officer exonerating the captain of the harassment charge.

The court also rejected the captain's First Amendment claim, which alleged that the sheriff's department had retaliated against the captain for, among other things, testifying at his own posttermination hearing. To proceed with a First Amendment claim, the captain had to show that the testimony he gave at the hearing related to a matter of public concern.(19)

The court held that a sexist atmosphere in the workplace is a matter of public concern but that internal personnel disputes are not. According to the court, the captain's testimony regarding the alleged sexual harassment and the department's alleged tolerance of a sexist environment did not touch on a matter of public concern but was motivated by the captain's desire to show that his behavior was not anomalous.

However, under certain exceptional circumstances, courts have allowed due process claims to proceed. One example is Civil Service Employees Association P. Southold Union Free School District.(20) The court held that a "formal reprimand" was improperly placed in the personnel file of a school custodian accused of sexual harassment because the custodian had not been afforded due process protections under state civil service law. Documents like critical administrative evaluations or admonitions intended to warn or instruct an employee may be placed in personnel files without a formal hearing, the court said, but placing in the file documents that are a form of discipline intended to punish an employee for improper conduct may violate due process if no hearing is held.

Defamation

The key issues in a defamation claim are generally whether the allegedly defamatory information is true and whether the person spreading the information did so with actual malice. These elements make defamation claims difficult to prove, particularly in the face of evidence that the employer actually believed the harassment allegations or passed on true information to its own employees or to the public.(21)

In Duffy v. Leading Edge Products, Inc., the Fifth Circuit affirmed a lower court's rejection of a defamation claim.(22) The court found that a man who charged that his former employer made false allegations against him failed to establish actual malice, necessary to overcome the employer's qualified privilege with respect to alleged defamatory statements. There was no evidence that the supervisor who investigated two coworkers' allegations did not believe their statements or that the alleged conduct did not constitute sexual harassment.

In Harper v. Walters, the court held that a former Equal Employment Opportunity Commission (EEOC) attorney did not state a claim for defamation against a television news operation. It had reported that the attorney was charged with sexually harassing 13 women while he worked at the agency and that the agency had recommended terminating him, although he ultimately was allowed to retire first.(23)

According to the court, the reports--which were made without actual malice--were complete md accurate representations of EEOC notices of adverse employment actions specifying particular acts of harassment allegedly committed by the attorney as required for the broadcast to be privileged under District of Columbia law.

In another case, an alleged harasser unsuccessfully brought a claim for defamation and intentional interference with a business relationship against a coworker. The coworker had complained to their employer of a touching incident. The plaintiff in Miller v. Service-master by Rees alleged that the written and verbal reports filed after the incident were defamatory as a matter of law because they adversely damaged his professional reputation.

The Arizona Court of Appeals found that the man failed to make a prima facie case that the woman's report of the alleged harassment was improper.(24) The court found there was no actual malice in the report.

Also, according to the court's ruling, "[T]here is strong public policy to protect a worker's right to report alleged sexual harassment. Workers should be free to report alleged sexual harassment without fear of liability, absent malice in fact."(25)

In Lambert v. Morehouse, an action by a discharged employee against other employees who had accused him of sexual harassment, the Washington Court of Appeals held that complaints of harassment made in the context of workplace investigations were conditionally privileged under the laws of both defamation and tortious interference.(26) The court affirmed the trial court's finding that the charged employee--who did not deny specific facts alleged by subordinate employees but denied the conclusion that he had sexually harassed them--did not create a genuine issue as to the truth or falsity of the allegations or as to whether the subordinate employees had abused the conditional privilege.

Rattray v. City of National City was an action by a former police officer who was terminated for dishonesty regarding allegations that he had sexually harassed a female coworker. A jury returned a verdict in the officer's favor on his defamation claim.

The judge granted the city's motion for a new trial, holding that the evidence showed that the chief who terminated the officer made his statements regarding the officer's dishonesty in good faith. The Ninth Circuit affirmed the district court's ruling.(27)

At least one court has held that statements about alleged sexual harassment--even if false and malicious--may fall within the intracorporate immunity exception in defamation law. This holds that communications between employees in the regular course of business cannot be subject to defamation claims.

In Lovelace v. Long John Silver's, the Missouri Court of Appeals held that female employees' oral and written statements to their employer regarding a manager's alleged sexual harassment toward them were not publications of defamatory material under Missouri law.

As the court stated, "A corporation has an interest to see that business runs efficiently. The sexual harassment of an employee by a supervisor not only affects the efficiency of the employee--and hence of the business--but also may incur the legal obligation of the employer to take steps against the practice."(28)

Emotional Distress 

In most states, in order to prove intentional infliction of emotional distress a plaintiff must show that the defendant acted outrageously and that the plaintiff suff-ered severe or extreme emotional distress as a result. Generally, courts have held that disciplining an employee for alleged sexual harassment is not outrageous conduct likely to result in severe emotional injury.

Ekokotu v. Pizza Hut, Inc., involved an action by a former assistant manager of a restaurant against his employer and two supervisors. The case alleged conspiracy to fabricate false charges of sexual harassment, libel, tortious interference with employment, and severe mental and physical anguish.

The Georgia Court of Appeals held that reporting the results of sexual harassment investigations against the plaintiff to his supervisors and firing him did not constitute the outrageous conduct necessary for a claim for intentional infliction of emotional distress in the absence of physical injury.(29) Another court held that even if a termination is shown to be illegal, this is not normally enough to constitute extreme and outrageous conduct.(30)

Workers' Compensation

Several alleged harassers have attempted to obtain workers' compensation benefits for alleged injuries stemming from accusations of sexual harassment. In Martone v. State of Rhode Island/Registry of Motor Vehicles, the state supreme court held that an employee who alleged psychological injury from coworkers' treatment of him after he was disciplined for harassment could not receive workers' compensation. The court said he had not shown a causal relationship between his injury and his employment. The court also found that the sexual harassment was not a deviation from work that was substantially motivated by influences that originated in his job; rather, the employee was motivated by his own desire for sexual excitement and his wish to manipulate the victim.(31)

Similarly, in Crowley v. SAIF Corp., the Oregon Court of Appeals held that the state workers' compensation board properly concluded that an employee's mental disorder was not compensable under the state workers' compensation statute.(32)

The employee claimed his disorder resulted from a conference with his supervisor in which he was advised that a female employee had accused him of sexual harassment.

The court said the conference was reasonable, corrective action and rejected the contention that the disorder resulted from the false accusation, not the discipline. According to the court, "The board gave a reasoned conclusion on the basis of findings that are supported by substantial evidence. It rejected the fine distinction that claimant wishes to draw that his awareness of the allegations, not the supervisor's corrective action, produced the reaction."(33)

Alleged harassers have pressed other claims not discussed here, including claims for libel,(34) breach of contract,(35) and negligent investigation.(36) They have also challenged denials of unemployment and severance benefits.(37)

Despite increased attention to sexual harassment issues in recent years, there is still some confusion in U.S. workplaces regarding what types of conduct are offensive. Some male workers fear that even the most benign compliment will be parlayed into a sexual harassment suit. Many male employees are tentative in their interactions with female coworkers, and employers are vigilant in avoiding liability. The cases discussed above indicate that many employers are carefully evaluating the implications of their employment decisions.

Although alleged harassers have been largely unsuccessful in cases against their employers or accusers, courts have recognized the need for fairness to all parties when these sensitive charges are brought. When due process is lacking, courts will not allow disciplinary actions to stand.

For example, in Statishevsky v. Hofstra University--a sexual harassment case involving a student rather than an employee--a university panel fired an administrator who allegedly kissed a student. The panel found the behavior inappropriate but concluded that no sexual harassment had occurred.

The New York court discussed the care an employer must take to give due process to those accused of sexual harassment. The court found the termination of the administrator arbitrary and capricious, holding that he was denied his right to a fair and reasonable hearing.(38)

The court noted that with the recognition of the need to eliminate sexual harassment has come an awareness of how difficult the task will be. As the court stated, "The process of eliminating sexual harassment must go forward with recognition of the rights of all involved and without the creation of new wrongs. The process must be propelled by a sense of fairness and not motivated by any other less appropriate notions."(39)

Confusion about sexual harassment seems inevitable as employers and workers try to come to grips with changing social mores. While there will always be shades of gray with respect to inappropriate workplace behavior, increasing numbers of women in positions of power and sexual harassment prevention through training and education will ultimately lower the number of suits by all parties.

Notes

(1) 477 U.S. 57 (1986). (2) Although there are reported cases involving female alleged harassers and male victims, an overwhelming number of sexual harassment suits are brought by female plaintiffs. This article addresses those types of actions only. (3) See, e.g., DeCoe v. General Motors Corp., 32 F.3d 212 (6th Cir. 1994); Cawthard v. Flagship Airlines, 863 F. Supp. 1567 (S.D. Fla. 1994). (4) Coen v. Elco Chevrolet, 756 F. Supp. 414 (E.D. Mo.), affd, 950 F.2d 728 (8th-cir. 1991); Jackson v. St. Joseph State Hosp., 840 F.2d 1387 (8th Cir. 1988), cert. denied, 488 U.S. 892 (1988); Evans v. Bally's Health and Tennis, 64 Fair Empl. Prac. Cas. (BNA) 33 (D. Md. 1994). (5) Baker v. McDonald's Corp., 45 Fair Empl. Prac. Cas. (BNA) 1505 (S.D. Fla. 1987); Indiana Civil Rights Comm'n v. Marion County Sheriff's Dep't, 644 N.e.2d 913 (Ind. Ct. App. 1994). (6) Valdez v. Church's Fried Chicken, Inc, 683 F. Supp. 596 (W.D. Tex. 1988). (7) Levitt v. University of Tex. at El Paso, 847 F.2d 221 (5th Cir. 1988), cert. denied, 488 U.S. 984 (1988). (8) Waggoner v. City of Garland, 987 F.2d 1160 (5th Cir. 1993). (9) U.S. MERIT SYS. PROTECTION BD., SEXUAL HARASSMENT IN THE FEDERAL WORKPLACE: TRENDS, PROGRESS, CONTINUING CHALLENGES 6 (1995). (10) Johnson v. J.C. Penney Co., 876 F. Supp. 135, 139 (N.D. Tex. 1995). (11) 816 F.2d 638 (Fed. Cir. 1987). (12) 775 F.2d 288 (Fed. Cir. 1985). See also Johnson, 876 F. Supp. 135; Jackson v. Veterans Admin., 768 F.2d 1325 (Fed. Cir. 1985). (13) 876 F. Supp. 135. (14) 645 So. 2d 785 (La. Ct. App. 1994). (15) Citizens to Recall Mayor James Whitlock v. Whitlock, 844 P.2d 74 (Mont. 1992). (16) 630 N.e.2d 324 (Ohio 1994). (17) 857 F. Supp. 1540 (M.D. Ala. 1994). (18) 32 F.3d 475 (10th Cir. 1994). (19) Connick v. Myers, 461 U.S. 138, 146 (1983). (20) 611 N.Y.S.2D 895 (N.Y. Sup. Ct. 1994). (21) Defamation claims may also be barred by state workers' compensation laws. See, e.g., Wolf v. F&M Banks, 534 N.W.2d 877 (Wis. Ct. App. 1995). (22) 44 F.3d 308 (5th Cir. 1995). (23) 822 F. Supp. 817 (D.D.C. 1993). (24) 851 P.2d 143 (Ariz. Ct. App. 1992). (25) Id. at 146. (26) 843 P.2d 1116 (Wash. Ct. App. 1993). (27) 36 F.3d 1480 (9th Cir. 1994). (28) 59 Fair Empl. prac. Cas. (BNA) 765, 767 (Mo. Ct. App. 1992). (29) 422 S.e.2d 903 (Ga. Ct. App. 1992). (30) Johnson, 876 F. Supp. 135; see also Ugalde v. McKenzie Asphalt Co., 990 F.2d 239,243 (5th Cir. 1993). (31) 611 A.2d 384 (R.I. 1992). (32) 839 P.2d 236 (Or. Ct. App. 1992). (33) Id. at 237-38. (34) Ekokotu, 422 S.e.2d 903. (35) Scherer v. Rockwell Int'l Corp., 975 F.2d 356 (7th Cir. 1992). (36) Ashway v. Ferrellgas, Inc., 59 Fair Empl. Prac. Cas. (BNA) 375 (D. Ariz. 1989). (37) McGahee v. Yamaha Motor Mfg. Corp., 448 S.E.2d 249 (Ga. Ct. App. 1994); Chalmers v. Quaker Oats Co., 859 F. Supp. 1149 (N.D. M. 1994). (38) 612 N.Y.S.2D 794 (N.Y. Sup. Ct. 1994). (39) Id. at 796.

Alba Conte of Portland, Oregon, is a legal consultant and author of Sexual Harassment in the Workplace: Law and Practice (John Wiley & Sons, 2d ed. 1994).