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Can you sue for sexual harassment if you played along at first?

There are many strategies people attempt when they’re dealing with a hostile work environment. Some people who experience sexual harassment or discrimination complain right away, but others don’t want to make waves. When interactions at work become sexually charged, many try at first to play along as if it were ordinary banter -- and banter back.

Unfortunately, that strategy can backfire, as a Pennsylvania sanitation service driver has reason to know. She was allegedly subjected to an unremitting barrage of lewd comments and groping, and her managers did nothing despite repeated complaints. Finally, it became so bad, she claims, she couldn’t bear to return to work and felt forced to quit.

When she filed a federal sexual harassment lawsuit, however, the company accused her of initiating the very sexual interaction she was complaining about.

The company, which sells and services portable toilets, responded to the lawsuit by moving for summary judgment. That means they asked the judge to consider the woman’s claims in the most favorable light and, they assumed, throw it out of court because she didn’t have a viable case. Why? According to the defendants, the woman had engaged in suggestive banter with male coworkers, sent them sexually explicit text messages and even shown topless photos of herself around the office.

Not so fast, she insisted. She admits she once showed male coworkers a photo of a topless woman who had competed in a “wet T-shirt contest,” but never one of herself. She denies ever having engaged in any other sexually inappropriate workplace behavior or having initiated any sexual interactions.

The question of who initiated what will have to be decided at trial, but a U.S. District Court judge denied the defendant’s attempt to get the case thrown out. Beyond those facts, the main question at that trial will be whether the co-workers’ behavior and the management’s lack of response were so egregious that her decision to quit was reasonable. If it was, the law considers it a form of wrongful termination called “constructive discharge.”

"Despite admitting to some voluntary actions, plaintiff claims that she did not consent to severe physical groping and repeated lewd remarks," the judge wrote. In fact, the man she claims was a primary perpetrator of the sexual harassment allegedly said this to the woman on her last day at work:

“See, nothing happens to me. I can do what I want and get away with it. I'm not going to be the one losing my job.”

Only a trial can “determine whether plaintiff's working conditions were so unendurable that she was forced to leave the job,” the judge wrote. The first hearing in the trial is scheduled for September.

Source: Courthouse News Service, "Suit Brings Porta Potties, Topless Photos Together," Rose Bouboushian, Aug. 15, 2013

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Law Offices of Allan A. Sigel, P.C.

Law Offices of Allan A. Sigel, P.C.
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