When Carl Sassaman’s boss demanded that he resign after a co-worker accused Sassaman of sexual harassment, the county employee shocked his boss by suing for sex discrimination. Sassaman says he was upset that in the “he said-she said” stand-off, his employer treated his female accuser’s word as gospel while discounting his own vehement denials. Rather than investigating, Sassaman’s male boss at the Dutchess County (N.Y.) Board of Elections asked police to look into the woman’s allegations of harassment and stalking. Police didn’t find evidence to justify criminal charges.
Meanwhile the 60-year-old elections administrator was offered two options in 2005: resign or be fired. According to Sassaman, his boss informed him at that time: “I really don’t have any choice. [Your accuser] knows a lot of attorneys; I’m afraid she’ll sue me. And besides, you probably did what she said you did because you’re male and nobody would believe you anyway.”
That alleged anti-male remark triggered Sassaman’s Title VII sex discrimination action and a recent 2nd Circuit judgment, illustrating the adage, “What’s sauce for the goose is sauce for the gander.”
In its May 22 decision reversing the summary judgment granted previously to Dutchess County, the 2nd Circuit admonishes employers that stereotyping men as sexual harassers is as discriminatory as stereotyping women as being unfit for the boardroom.
“Title VII requires employers to take claims of sexual harassment seriously … [but] it also requires that, in the course of investigating such claims, employers do not presume male employees to be ‘guilty until proven innocent’ based on invidious sex stereotypes,” Circuit judges Jose Cabranes, Wilfred Feinberg and Peter Hall warned in Sassaman v. Gamache.
Rights of Guys
The 2nd Circuit ruled that jurors could reasonably draw an inference of discriminatory intent if they accepted Sassaman’s combined allegations that his supervisor suggested men are apt to sexually harass their co-workers and that the employer failed to properly investigate the alleged harassment.
Sassaman’s counsel Lanny Walter, a partner at Walter, Thayer & Mishler, translates: “You can’t assume that because a guy is a guy, that a guy will do this, that or the other thing–it depends upon the facts. It’s important to defend women who are the primary victims of harassment, but it can’t be done in a way that ignores the rights of a guy who may actually be innocent.”
The panel flatly rejected Dutchess County’s defense that its fear of being sued by the female complainant justified forcing Sassaman to resign.
“We appreciate that employers who fail to address claims of sexual harassment expose themselves to civil liability,” Cabranes wrote. “However, fear of a lawsuit does not justify an employer’s reliance on sex stereotypes to resolve allegations of sexual harassment, discriminating against the accused employee in the process.”
Anne Yuengert, a partner at Bradley Arant Boult Cummings, says employers must consequently “be sure that they are following their [harassment] policy and that they can articulate and defend decisions, because the likelihood that a man who has been terminated after being accused of harassment will pursue some kind of Title VII claim is increased.”
The U.S. district judge who previously threw out Sassaman’s case held that the impugned “stray” and “ambiguous” remark could not demonstrate actionable gender stereotyping. But the 2nd Circuit deemed the remark “quite the opposite of stray.” Rather, the court said “it tended to show the decision-maker was motivated by assumptions or attitudes relating to the protected class.”
The appeals court also noted that the employer’s alleged failure to properly investigate could be seen by a reasonable jury as further evidence supporting an inference of discriminatory intent against men.
“Just as the lack of investigation of a reported claim of harassment may factor into the determination of an employer’s liability for discrimination against the complainant, so too it may indicate discrimination by an employer whose adverse determination against the putative harasser otherwise bears indicia of prohibited discrimination,” Judge Cabranes explained.
But in an important saving grace for employers, the panel stressed that a bungled sexual harassment investigation is not enough by itself to support an inference of discriminatory intent.
“Rather, we only hold that where a plaintiff can point to evidence closely tied to the adverse employment action that could reasonably be interpreted as indicating that discrimination drove the decision, an arguably insufficient investigation may support an inference of discriminatory intent,” the panel said.
This key proviso means employers need not fear successful Title VII attacks by alleged harassers based solely on inept sexual harassment investigations, says Stephen Bergstein, a partner at Bergstein & Ullrich. “I would look for … whether there is a way to show that he was stereotyped, and that they did a bad job [investigating], because they just assumed the allegation was true,” he says.
False and outdated gender stereotypes held by employers are still provoking plenty of complaints from both male and female employees, says Elizabeth Grossman, an attorney at the EEOC’s New York District Office.
“It’s very important to include discussion of sex stereotyping in anti-discrimination training,” she emphasizes. “My advice for employers would be to investigate every claim in a neutral manner, without applying stereotypes or jumping to conclusions, [and] attempt to get as many witnesses as possible interviewed as quickly as possible in a neutral manner.”