A Go-To Employer Defense To Sexual Harassment: The Sexual Behavior Was Harmless Joking Around

Having represented sexual harassment victims for more than two decades, our sexual harassment lawyers in Citrus County, Florida know that employers often defend their failure to prevent sexual harassment by disingenuously characterizing unwanted sexual behavior as harmless joking. An employer’s attempt to recast unwanted sexual behavior as harmless joking often begins during its purported investigation into a sexual harassment complaint. During the employer’s investigation—which is frequently rigged to reach a pre-determined conclusion that no sexual harassment occurred—human resources representatives ask the sexual harassment victim leading questions intended to elicit admissions that the harasser did not intend to be offensive or cause harm and was only joking around.

In this article, our sexual harassment lawyers in Citrus County, Florida explain how the alleged facts in Rolley v. Modern Disposal Services Inc., 2024 WL 3819410 (W.D. N.Y. Aug. 14, 2024) are illustrative of how an employee’s allegations of unwanted sexual behavior are portrayed by employers as merely harmless joking.

Protection From Sexual Harassment

Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees from sexual harassment in the workplace. “Title VII,” as observed by the court in Curry v. District of Columbia, 195 F.3d 654 (D.C. Cir. 1999), “does not permit employers to stand idly by once they learn that sexual harassment has occurred.” Once an employer knows or should know of sexual harassment in the workplace, the employer is obligated under Title VII to take prompt and effective remedial action to stop the harassment and prevent the harassment from reoccurring. When an employer undertakes no remedial action, or where the remedial action does not end the harassment, the employer is liable under Title VII for creating and maintaining a sexually hostile work environment.

Having controlled the federal judiciary for decades, employers are supremely confident they will be able to persuade employer-friendly judges that a remedial obligation under Title VII never kicked because the sexual behavior amounted to, at most, harmless joking around. If the sexual behavior was merely harmless joking, then the employer was under no obligation to stop the behavior. An employer’s intent to recast sexual behavior as harmless joking is why human resources representatives, during a purported investigation into a sexual harassment complaint, ask the sexual harassment victim leading questions intended to elicit admissions that the harasser did not intend to be offensive or cause harm and was only joking. Any explicit or implicit admission by the sexual harassment victim will ultimately be used by the employer in arguing during litigation that the conduct complained of amounted to, at most, harmless joking around.

Sexual Harassment Lawsuit

In Rolley, a woman named Rolley brought a sexual harassment claim against her former employer, Modern Disposal Services, Inc. (“Modern Disposal”), pursuant to Title VII. Rolley alleges that she was required to work in a sexually hostile environment in violation of Title VII.

In November 2018, Rolley was hired by Modern Disposal as a truck driver. Rolley alleges that, in the middle of February 2021, a supervisor approached Rolley and offered to “eliminate a fictitious complaint about her performance in exchange for sexual favors.” The supervisor, according to Rolley, also suggested that Rolley “engage in an extracurricular relationship with him” because he had “approved Rolley’s recently submitted request for time off.”

Rolley alleges that she reported this incident to human resources. Rolley claims that, after speaking with a supervisor named Larry who overheard the exchange, human resources “concluded that the comment was in fact made.” Rolley maintains that despite investigating and confirming her allegations, Modern Disposal continued to allow the supervisor to supervise her, leading to additional harassment. For example, Rolley contends that the supervisor would make comments about Rolley “using her earned time off” and false allegations about her work performance. Rolley further asserts that the supervisor continued to “make sexual comments and advances,” which Rolley “rebuffed.”

In early June 2021, Rolley claims that she told human resources that because of her “growing discomfort, frustration, and distress caused by the hostile environment, she had no choice but to file a formal complaint” with the U.S. Equal Employment Opportunity Commission. Rolley alleges that Modern Disposal “immediately suspended her the same day without cause.” Four days later, Rolley was fired.

Not Merely “Harmless Joking”

Modern Disposal filed a motion with the trial court seeking dismissal of Rolley’s sexual harassment claim. In moving for dismissal, Modern Disposal argued that the incident report Rolley filed with human resources regarding the alleged sexual behavior by the supervisor “demonstrates that the conduct complained of amount to, at most, harmless joking around.” According to the incident report submitted by Modern Disposal to the trial court, the supervisor told Rolley that she seemed like she would be “a good time” when she was “drunk” and that she “should buy him a bourbon.” Rolley also reported that a supervisor named Larry heard this exchange.

In denying Modern Disposal’s motion for dismissal, the trial court concluded that the comments in the incident report “easily sustain an inference that [the supervisor’s] conduct was sexual and inappropriate—not merely ‘harmless joking’ as [Modern Disposal] contends.” The trial court further found that, contrary to Modern Disposal’s argument, “the incident report is not inconsistent with the complaint [filed by Rolley commencing the lawsuit] simply because the complaint includes allegations that the incident report does not.” “It is plausible,” the trial court reasoned, “that Rolley’s incident report did not describe everything that was said but only what Larry overheard, so the report provides no basis to contradict the complaint[.]”

Citrus County Sexual Harassment Lawyers

Based in Ocala, Florida and representing workers throughout Florida, our sexual harassment lawyers in Citrus County, Florida have fought for the rights of sexual harassment victims for more than twenty years. If you have endured sexual harassment in the workplace or have questions about your rights as a sexual harassment victim, please contact our office for a free consultation with our sexual harassment lawyers in Citrus County, Florida. Our employee rights law firm takes sexual harassment cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery, and our attorney’s fees come solely from the monetary award that you recover.