How to lose a harassment case without ever committing harassment

Sexual harassment does not have to be proved for retaliation to be claimed.

A New York sexual harassment case has demonstrated that an employer, and the offending manager, can lose a sexual harassment case without ever being found guilty of sexual harassment. How you wonder? Let me explain.

The case

The case involved a professor at Columbia University who claimed she was harassed and then denied tenure for reporting the harasser. She filed suit and a three-week trial was held. At the end of the trial the jury found that no harassment had occurred, but, the jury did find that the professor had been the subject of retaliation. The jury found that although the accused male professor had not engaged in any harassment, he had written and distributed emails that were critical and damaging to the female professor. On the basis of these damning emails, the female professor was denied tenure, which in the eyes of the jury amounted to retaliation on the part of the male professor, her boss, and the university. As a result, the jury found for the female professor and fined the university $750,000 in punitive damages and the male professor $500,000 in punitive damages (as allowed in New York.) It could have been worse, but she had moved on to another university making more money, so the court did not charge compensatory damages.

What was done wrong?

If the jury had concluded no harassment took place why was this verdict made? The answer is retaliation, which is perceived as bad as, if not worse, than the harassment. After all, it is the retaliation that cost her job and tenure. Almost half the cases the Equal Employment Opportunity Commission (EEOC) investigates are based on retaliation.
Attorney Barbara Hoey, of Kelley Drye & Warren LLP, says that all employers need to take note of this case. If the male professor had not written the damning emails, and if the University had not acted on these emails, there would have been no case. Hoey advises:

All companies and institutions need to be on notice that behavior that could be perceived as ‘harassing’ or ‘bullying’, particularly when directed by a superior against a lower level employee of another race or gender, is a red flag.  What the boss may regard as ‘tough’ or ‘harsh’, a jury could see as discrimination or harassment….Emails remain the most potent piece of evidence in employment litigation today, and everyone needs to be cautious about what they say via email and text.  One “nasty” email can influence a jury, as may have happened here.

Finally, she says, “…be careful of retaliation claims, as they are serious business and present real liability.” and I echo her statement.

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