Assessed as intimidating
When there is some indication of welcomeness or when the credibility of the parties is at issue, the charging party's claim will be considerably strengthened if she made a contemporaneous complaint or protest. § 1604.11(b), evaluating each situation on a case-by-case basis.Other employees should be asked if they noticed changes in charging party's behavior at work or in the alleged harasser's treatment of charging party.As stated earlier, a contemporaneous complaint by the victim would be persuasive evidence both that the conduct occurred and that it was unwelcome ( Section A). After the harassment continued and worsened, she filed a charge with states that she feared that complaining about the harassment would cause her to lose her job. 84-1 ("acquiescence in sexual conduct at the workplace may not mean that the conduct is welcome to the individual"). In rejecting the plaintiff's claim of "hostile environment" harassment, the court found that any propositions or sexual remarks by co-workers were "prompted by her own sexual aggressiveness and her own sexually- explicit conversations" inadmissible but the trial court should carefully weigh its relevance against the potential for unfair prejudice. Any past conduct of the charging party that is offered to show "welcomeness" must relate to the alleged harasser. 1987), the Fourth Circuit held the district court wrongly concluded that the plaintiff's own past conduct and use of foul language showed that "she was the kind of person who could not be offended by such comments and therefore welcomed them generally, " even though she had told the harasser to leave her alone. The relevance of whether the victim has complained varies depending upon "the nature of the sexual advances and the context in which the alleged incidents occurred." 29 C. The investigation into her charge discloses that her supervisor began making intermittent sexual advances to her in June, 1987, but she did not complain to management about the harassment. 1982), the plaintiff regularly used vulgar language, initiated sexually-oriented conversations with her co-workers, asked male employees about their marital sex lives and whether they engaged in extramarital affairs, and discussed her own sexual encounters. Although a charging party's use of sexual terms or off-color jokes may suggest that sexual comments by others in that situation were not unwelcome, more extreme and abusive or persistent comments or a physical assault will not be excused, nor would "quid pro quo" harassment be allowed. A contemporaneous complaint or protest may also provide persuasive evidence that the sexual harassment in fact occurred as alleged ( Section B). The Eleventh Circuit provided a general definition of "unwelcome conduct" in , 682 F.2d at 903: the challenged conduct must be unwelcome "in the sense that the employee did not solicit or incite it, and in the sense that the employee regarded the conduct as undesirable or offensive." When confronted with conflicting evidence as to welcomeness, the Commission looks "at the record as a whole and at the totality of circumstances . This may stop the harassment before it becomes more serious.
The 's Guidelines define two types of sexual harassment: "quid pro quo" and "hostile environment." The Guidelines provide that "unwelcome" sexual conduct constitutes sexual harassment when "submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment," 29 C. Sexual harassment may culminate in a retaliatory discharge if a victim tells the harasser or her employer she will no longer submit to the harassment, and is then fired in retaliation for this protest. Therefore, "the fact that sex-related conduct was 'voluntary,' in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. Even sexual conduct that occurs openly in the workplace may appear to be consensual.So too is evidence that other employees were sexually harassed by the same person.The investigator should determine whether the employer was aware of any other instances of harassment and if so what was the response. inability to produce eyewitnesses to the harassment does not defeat her claim.The corroborating witness testimony and her complaint to higher management would be sufficient to establish her claim.
Her allegations would be further buttressed if other employees testified that the supervisor propositioned them as well.
As with any other charge of discrimination, a victim's account must be sufficiently detailed and internally consistent so as to be plausible, and lack of corroborative evidence where such evidence logically should exist would undermine the allegation.