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7 Key Defenses for Sexual Harassment Cases

sexual harassment

Dedicated New York Lawyers for Defense of Sexual Harassment

Employers have a duty to protect their employees from sexual harassment. When sexual harassment does occur, however, the employer can be vulnerable to significant financial liability, or even criminal charges.

Sexual Harassment Defense in Troy

The courts do allow employers to defend against employee allegations of sexual harassment. Individuals accused of criminal sexual misconduct can also use many of the same defenses. Here are some of the most common defenses for civil and criminal sexual harassment cases.

1) The Sexual Harassment Didn’t Happen

Perhaps the most obvious argument that can be made in defense of sexual harassment claims is that the harassment didn’t happen. The truth of the plaintiff’s claims can be challenged in court, and the court will want proof that the conduct in question is indeed actionable. Isolated incidents or teasing events are most likely not actionable. Courts may also permit testimony as to whether the plaintiff’s behavior has changed in a manner consistent with someone who has suffered from sexual harassment.

In a criminal sexual assault or harassment case, the defendant may argue that he or she was in a different place at the time the alleged crime occurred by providing the court with an alibi. Such an alibi must be supported with credible evidence. A defendant could also argue that he or she was misidentified by the plaintiff. DNA evidence is often used to establish whether or not a defendant was present at the scene of a crime.

2) The Conduct Was Welcomed

One defense available to defendants in sexual harassment cases is to claim that the sexual conduct in question was welcomed by the plaintiff. No matter how offensive the conduct was, the employer cannot be held responsible if it can be proven that the employee consented to or welcomed the conduct. The Supreme Court held, in Meritor Savings Bank v. Vinson, that a plaintiff must demonstrate the following in order to successfully establish claims of a hostile work environment due to sexual harassment:

  • That he or she was subjected to unwelcome advances
  • That the unwelcome advances were sexual in nature
  • That they represented a condition of employment
  • That the conduct could be attributed to the employer

The Equal Employment Opportunity Commission defines unwelcome conduct as conduct that “the employee did not solicit or incite” and that “the employee regarded as undesirable or offensive.” The court may consider whether the plaintiff participated in the conduct, whether he or she complained to his or her supervisors, and whether a reasonable period of time elapsed between the conduct and the employee’s complaints.

In criminal cases, consent can be an effective defense against allegations. In such a defense, the defendant might admit to the conduct in question, but argue that the behavior was consensual. Whether civil or criminal, sexual assault or harassment cannot be committed when the victim consents. This defense can be very effective if the defendant can prove consent.

3) The Conduct Was Not Sexual in Nature

A plaintiff alleging sexual harassment must prove that the conduct in question was sexual in nature or based on sex. Generally, the “but for” rule is used to determine sexual harassment. The plaintiff must prove, by a preponderance of the evidence, that he or she would not have suffered sexual harassment but for having been a representative of the defendant’s preferred gender. Courts have traditionally considered that sexual harassment allegations are inherently gender based.

4) First Amendment Rights

Someone who has been accused of sexual harassment may use the defense that his or her allegedly harassing speech is protected by the First Amendment. First Amendment rights can come into play in a sexual harassment case where conduct is based on verbal expression. However, the First Amendment does not protect extortions or threats, so the courts will only recognize the First Amendment defense to the extent that the allegedly harassing verbal expression is protected speech.

5) The Employer Had Valid Business Reasons for Adverse Action

Even if sexual misconduct has occurred in the workplace, the courts have held that employers may successfully defend against allegations by showing that adverse actions taken against the harassed employee were taken for legitimate business reasons, and not for reasons related to the harassment. It is not the court’s responsibility to question a business’s valid decisions.

6) The Plaintiff Was Incapacitated

In criminal sexual assault cases, defendants may be able to claim that they were mentally incapacitated at the time of the offense and that they should not be held criminally liable for their actions. This is known in the popular parlance as the insanity defense. In many jurisdictions, the courts will treat an offender with more lenience if they can show that a mental defect or disorder prevented him or her from fully comprehending the nature of their actions. Generally, the defendant must prove that they had no understanding that unwanted sexual contact is against the law.

7) Affirmative Defense

Under Title VII, an employer can successfully defend against sexual harassment allegations using the affirmative defense. In order to do so, the employer must prove that 1) they took reasonable action to prevent and correct sexual harassment in the workplace, and 2) the plaintiff unreasonably failed to take advantage of those corrective or preventative measures. This is often known as the “Faragher/Ellerth affirmative defense after two U.S. Supreme Court decisions which established the defense in 1998.

According to a recent decision by the Ninth Circuit Court of Appeals ruling in Hardage v. CBS Broadcasting, an employer can use this affirmative defense even if, after the plaintiff’s request, they did not fully investigate the claims of sexual harassment or take any kind of corrective action on the plaintiff’s behalf.

Experienced Attorneys at E. Stewart Jones Hacker Murphy Law

If you’ve been accused of sexual harassment or criminal sexual misconduct, you need the help of a sexual harassment attorney to mount a successful defense. Successfully defending against sexual harassment and assault charges is possible.

To request a free consultation with one of our experienced attorneys at E. Stewart Jones Hacker Murphy law firm, call us at (518) 274-5820, or fill out our online contact form to get started.

7 Key Defenses for Sexual Harassment Cases was last modified: January 18th, 2018 by E. Stewart Jones Hacker Murphy