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Men accused of sexual harassment can sue!

For years, employment lawyers like me have had to break the bad news to men who have been fired for allegedly sexually harassing women in the workplace:  there is very little I can do for you!  Title VII is designed to protect women (and men) from sexual harassment in the workplace.  It is not designed to protect men (or women) from being falsely accused.  Employers faced with a charge of sexual harassment are free to terminate the alleged harasser, even if they didn’t do it and even if the investigation proves inconclusive.

On May 22, 2009, the Second Circuit took a step toward providing men (and women) with a bit more protection when they are accused of sexual harassment.  In Sassaman v. Gamache … F.3d … , 2009 WL 1424433 (2d Cir. 2009), the court reversed the grant of summary judgment and permitted a man’s case to proceed to trial, based on allegations and evidence that he was forced to resign because of his employer’s belief that men have a propensity to commit sexual harassment.  Integral to the Court’s opinion was the employer’s failure to adequately investigate the claims.

The Court took great pains to clarify what it was not holding:

“We emphasize that we do not hold that an arguably insufficient investigation of a complaint of sexual harassment leading to an adverse employment action against the accused is, standing alone, sufficient to support an inference of discriminatory intent.

Rather, we hold only that where a plaintiff can point to evidence closely tied to the adverse employment action that could reasonably be interpreted as indicating that discrimination drove the decision, an arguably insufficient investigation may support an inference of discriminatory intent.”

The take away here is that men can bring Title VII cases of their own if they can provide evidence that the employer terminated them because of a belief that as a man, it was likely that he committed the sexual harassment complained of.  Relevant to this claim could be, as here, a poor investigation by the employer.

Going forward, Plaintiff’s employment lawyers need not dismiss a new caller’s claim that he was terminated for sexual harassment when he really didn’t do it!