If you were the judge: Was it mutual flirtation or harassment?

by on September 27, 2010 · 0 Comment POSTED IN: HR Cafe
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Based on the facts presented in the scenario below, how do you think the court ruled on this employment law case?

THE CASE
“You claim your boss harassed you, but your co-workers tell a different story,” supervisor Leonore Martin told employee Cami Peters. “They complained to me about your unprofessional, flirtatious conduct with Mark Delgado, and the fact that, as shift leader, he seemed to be giving you preferential treatment.”

Cami’s eyes flashed indignantly. “No way,” she snapped. “Mark was flirting with me. All I tried to do was distance myself without being disagreeable. After all, I couldn’t afford to make my shift leader angry.”

Romantic or unwelcome?
“We investigated whether you two were involved in a romantic relationship, and three people said they’d seen a number of incidents suggesting you were,” Leonore said. “Mark won’t say whether that’s true or not. Is it? Because we have a policy against people dating their subordinates.”

“No!” Cami said. “He constantly tries to grope me, but that’s not a ‘romantic relationship.’ I’ve told Mark to back off, but he won’t.”

“Well, we’ve looked into this pretty thoroughly, and we don’t think you have a harassment problem,” Leonore said. “But we do have a problem with you. You’ve been late to work four days this month. If you don’t start getting here on time, your employment is at risk.”

Cami was eventually terminated for tardiness, and she sued for sexual harassment. Did the company manage to get the case dismissed?

THE DECISION
No, a federal judge refused to dismiss Cami’s sexual harassment lawsuit against the company. The judge noted that although Cami’s co-workers thought she was involved in a consensual relationship with her shift leader, she herself denied it, and the shift leader refused to say one way or another.

When it’s one person’s word against that of others, a case should go to a jury trial as the best way of determining the truth, the judge said. And of course, a jury trial can be long and expensive for the defending employer.

This case illustrates the perils of investigating harassment complaints, where there’s often an element of “he said, she said,” or even “she said, they said.”

The supervisor, Leonore, made the mistake of being unwilling to look at new evidence – i.e., Cami’s categorical denial that Mark and she had a consensual relationship, and her claim that Mark’s behavior was unwelcome.

If you’ve already investigated a harassment complaint and new facts come to light, you have a responsibility either to look into them or to report them up your chain of command, or to HR. Don’t insist that a closed book stay closed if there’s a credible reason to reopen it.

Cite: Pitter v. Community Imaging Partners, No. 07-2968, D. Md., 8/18/10. Fictionalized for dramatic effect.

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