In defending sexual harassment cases, employers try to use the conduct of the complaining employee against her in sexual harassment or hostile work environment claim. Recently, the Massachusetts Supreme Judicial Court faced the interesting question in a sexual harassment case of whether certain conduct and comments by a complaining female employee can be used against her. Kimberly Dahms had filed a sexual harassment charge against a company’s Chief Financial Officer for creating a hostile work environment. The gist of her claim was that the CFO retaliated and undermined her position at work after she refused to date him.
In a hostile work environment claim, the employee must show that she was offended by the work environment. The employer claimed that Ms. Dahms was not “offended” because she was a willing participant in the sexualization of her work environment. The employer relied on that Ms. Dahms had apparently worn provocative clothing, told sexual and crude jokes at a company party and shared her sexual preferences with co-workers.
The Court said that evidence of Ms. Dahms language, apparel and conduct was evidence of whether she was actually offended by her work environment or invited the CFO’s attention. While it was proper for the jury to consider Ms. Dahm’s behavior in evaluating her hostile work environment claim, evidence of her willing participation in sexualized behavior was admissible on whether she was in fact offended by the work environment.
The decision is a reminder that employers will try to use a female employee’s conduct against her in defending a sexual harassment claim for a hostile work environment. The internet and various blogs and social network postings by female employees are being used by the employer’s lawyers to find something negative or sexual about a female employee. Thus, your conduct, attire, and joke-telling at the office is a factor to consider as it may affect a sexual harassment case.