Imagine that you are a human resources director. An employee comes to you, claiming that she believes she is being subjected to sexual harassment in the form of a hostile work environment.
She recounts how several of her fellow co-workers – they all work in a cluster of cubicles – enjoy listening to a certain morning radio program known for its sexual humor. This employee also says that the language amongst the group is vulgar, with a steady stream of words that would make George Carlin proud, and that e-mails containing inappropriate content, such as lewd jokes, are regularly circulated.
Imagine, too, that you are a good human resources director, so you investigate. You talk with this employee’s fellow co-workers. You find out that it is true that some of the employees do listen to the program and that they routinely use foul language. They readily admit that “funny” e-mails have been forwarded to all in the department, including to the complaining employee.
But these co-workers are also quick to tell you the complaining employee laughs sometimes while listening to the radio program, has dropped the f-bomb more than once, and even has forwarded some e-mails, in the same vein of humor, to some of the very same people whom she alleges are the harassers.
Does her own participation bar her from recovering in a hostile work environment claim?
How employers can respond
It is a long-standing principle that an employee must show that the work environment was both subjectively and objectively hostile in order to prevail on a hostile environment claim.
The underlying rationale of the subjectivity requirement is that if the employee does not subjectively perceive the environment as harassing, then it necessarily follows that the employee’s working conditions were not altered. Thus, where evidence exists that an employee was engaging in the exact same – or at least similar – type of conduct that is being complained about, it behooves an employer to present that evidence when defending a hostile work environment claim.
But what evidence can the employer use to show that the complaining employee was not really offended by the conduct?
In some instances, courts have allowed employers to present evidence of the employee’s own e-mails of questionable taste. In a case from the Eastern District of Pennsylvania, Seybert v. The International Group, Inc., 2009 WL 3297304 (E.D.Pa. 2009), the complaining employee moved to exclude certain e-mails – consisting of jokes, stories, photographs and cartoons that used sexual language or other innuendo – that she had sent to some of her co-workers.
The court permitted the evidence, reasoning that, “By exchanging these e-mails with others during her [company] work hours, and using [company] computers, [the plaintiff] may have been sanctioning the humor that the emails contained – a humor that may be found to be similar to the supposed humor underlying” the conduct to which she objected.
In a California state case, Rieger v. Arnold, 104 Cal.App.4th 451 (Cal.App. 3 Dist. 2002), the employer attempted to introduce evidence in a sexual harassment case showing that the plaintiff herself had engaged extensively in sexual banter, touching, and relationships in an admittedly sexually-charged workplace.
The court held that the evidence as to the plaintiff’s own conduct had to be limited to behavior done in the presence of the accused harasser, so some evidence was allowed in and some was not.
In both of the above instances, the plaintiffs attempted to bar evidence of their own behavior by citing statutory prohibitions on the admissibility of evidence of an alleged victim’s own sexual behavior.
In the Seybert matter, the plaintiff relied upon Rule 412 of the Federal Rules of Evidence. Rule 412(a) provides that, in sex offense cases, evidence offered to prove either “that any alleged victim engaged in other sexual behavior” or “any alleged victim's sexual predisposition” is generally inadmissible.
Subsection (b) of Rule 412 provides for an exception where evidence of an alleged victim's reputation “has been placed in controversy by the alleged victim.”
While the Seventh Circuit has not yet ruled as to whether Rule 412 applies to sexual harassment lawsuits, other circuits, including the Second Circuit, have held that it does. (Wolak v. Spucci, 217 F.3d 157 (2nd Cir 2000).) In reaching its conclusion, the Wolak court cited the Advisory Committee Notes, which state that Rule 412 “applies in any civil case in which a person claims to be the victim of sexual misconduct, such as … sexual harassment.”
This means that employers defending a claim of hostile work environment in federal court need to be aware of the procedural safeguard mandated by Rule 412. In order to introduce any evidence under the 412(b)(2) exception, a party intending to offer evidence regarding the other party’s sexual past or reputation must file a motion specifically describing the evidence and its purpose at least 14 days before trial. Further, the court, before admitting the evidence, must conduct an in camera review.
Despite these limitations, the value of evidence of the alleged victim’s own conduct in negating any subjective offense can be well worth the effort it takes to seek and ensure its admissibility.
Jerilyn Jacobs, is an attorney at Gonzalez Saggio & Harlan LLP, practicing employment law in the Milwaukee office. She is available at 414-277-8500 or via e-mail.