We've heard this many times, nearly always from men facing allegations from women in the workplace. The standard fact pattern was usually a "he said, she said" scenario, where, given a choice of whom to believe, the employer chooses the female accuser over the male accused. Almost always, it seemed, the employer was playing it safe, risking an aggrieved male without a likely legal remedy over a female accuser with a certain legal remedy in the event the employer handled the accusations 'the wrong way.'
Until recently, the standard answer from our firm to such people was that we couldn't help. Employers, we explained, faced significant liability for failing to respond to allegations of sexual harassment, and if in the face of that liability, some employers simply chose to credit bare allegations, it was within their right to do so, however unfair it seemed. The historic pattern of sexual harassment of women in the workplace, combined with the policy requiring that, presented with accusations, the employer must respond in some reasonable way, meant that choices of whom to believe meant the choice usually favors the accuser.
To which the response from most of the callers has been words to the effect of "so then, someone can say anything they want about me and I can be fired?" My response is often, basically, yes, at least here in New Jersey. And since New Jersey's Law Against Discrimination (LAD) is a fairly proactive, liberal and far-reaching civil rights statute, that was probably the way it was going to be in nearly every other state as well.
But that might changing. Slightly.
We've had some questions of late regarding a recent decision out of the 2nd Federal Circuit Court in Sassaman v. Gamache, issued May 22, 2009. Here's what happened in that case:
What happens when the male is fired not just because the employer wants to make the safe decision and believe the accuser for practical or economic reasons, but when the employer goes as far as to say words to the effect of "well, since you are a man, you probably did it anyway"?
Isn't that sexual discrimination as well?
After all, isn't discrimination for the most part based on stereotypes? And don't stereotypes derive from broad-based assumptions about particular individuals, not judging them based on their individual conduct, but rather judging them on how they look or to what group they belong? And if an employer decides that women are inherently truthful about sexual harassment and men are inherently untruthful, isn't that exactly the type of discrimination the LAD prohibits?
And if the answer to all of that is "yes", collectively, does that really put employers in a "no-win" position?
It is important to read the Sassaman decision. The supervisor very stupidly stated to the male that he discharged words to the effect of "I really don't have any choice. [The alleged victim of the harassment] 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."
Well, that was stupid.
The 2nd Circuit Court decided that, combined with a failure to adequately investigate the allegations, the "gender stereotyping" inherent in the decision to fire the male was no different than any primary sexual discrimination which might otherwise be committed in the course of employment. Assuming that a male is going to lie about sexual harassment and is more likely to have committed the act than a female is to lie about the act having been committed is no different than, and certainly just as bad as, assuming other discriminatory stereotypes about men, women, straight people, gay people, black people, white people, etc.
The 2nd Circuit also noted that the rush to judgment and the failure to adequately investigate was very much akin to the failure to investigate when an employer is protecting an illegal harasser or discriminator. The "rush to judgment" here was simply an apparent validation of the employer's pre-existing stereotypical impression of men as perpetrators and women as truthful victims.
Now, to be fair, in all the years we've been unable to help the general male in the general scenario absent evidence supporting the discriminatory assumptions about men, we've never heard a fact pattern like the one above. Had we, we would have accepted the case for the same reasons that the attorney in Sassaman obviously accepted his or hers, and I believe we would have prevailed.
It will still be a cold day in July when an employer or their agent is foolish enough to make the sorts of admissions that the employer's agent in the Sassaman case made and escape liability for them. That won't only be because most employers aren't that dumb, especially not after many of them have read Sassaman, but it's also because a lot of the time, gender stereotyping isn't necessarily at the bottom of a termination of a male accused by a female of sexual harassment. Sometimes, it's a gut reaction or a gut hunch that the employer has that the allegations are truthful. Sometimes it's simply an economic argument; firing the harasser is less legally dangerous than believing the harassee.
Also, it should be very clearly noted that the Sassaman Court in no way authorizes a new breed of lawsuit for a simple failure to investigate adequately when such a failure is not coupled with the sort of "gender stereotyping" evident here. Nothing in the decision seems to open the door for "negligent failure to investigate" claims under the LAD on the part of fired alleged harassers, though common law defamation claims for such men have and continue to exist; they just don't have a great chance of success, or significant value.
While the Court thought that the failure to properly investigate and the "rush to judgment" were relevant here, it felt that they were relevant to the issue of admitted gender stereotyping. I don't believe that the Court has opened the door, as some suggest, to create an independent cause of action under Title VII (or under any State scheme which mimics Title VII, such as does the LAD) based upon nothing more than an alleged failure to reasonably investigate the allegation. I don't believe such a cause of action will ever arise statutorily, and if it does, it won't be soon.
Obviously, what we can infer is that employers are going to have to be a bit more careful about making sure that they investigate claims of sexual harassment before they act, especially in "he said, she said" one-witness-on-either-side scenarios such as this one. It is also important that the employer not predispose or "prejudge" the fact pattern simply because a woman is making a complaint against a man, nor let any "gender stereotyping" infect how it deals with the issue.
Unlike many of the defense attorneys that I know who are panicked over this decision, both because they see a new potential cause of action against their clients and also because they feel that it puts their clients in a no-win situation, I feel that nothing has really changed. As long as an employer intends not to discriminate, and truly does not discriminate in its heart, I think it extraordinarily unlikely that a "Sassaman" type claim will find any footing. While some courts may not require direct evidence of gender stereotyping in firing a male harasser accused by a female alleged victim, I think many courts will require something more than simply a "hunch" or an "inference."