Bogus Harassment Excuse #4: But There Was Mutual Consent

Employees offer an array of creative excuses when trying
to defend their actions in what is known as a hostile work
environment harassment case. 

Here is excuse #4 of the top 10 excuses:
“But there was mutual consent.”

This issue usually involves a complaint from employee #1
about employee #2 regarding an event that both parties
participated in.  The response from employee #2 is
usually, “But it was consensual.”

HR CONTRARIAN POINTER: Harassment is actionable only if it
is unwelcome.  As such, “voluntary” participation in an
event does not necessarily mean that it was “welcome.”

In harassment cases, the “state of mind” of the person
complaining becomes a relevant matter.  If the complainant
states that he/she felt coerced into a certain activity,
then a company may have liability.  As such, the totality
of the circumstances will determine a company’s liability
in these cases.

Because the absence of a complaint does not mean that a
company has no liability, the best defense in cases such
as these is to:
1. Ensure that the company has written policies against
harassment.
2. Be able to prove that employees and especially
supervisors have been trained to identify such issues.
3. Have a viable internal complaint resolution process
that ensures protection of anyone who steps forward with a
complaint.
4. Be consistent in applying corrective action as soon as
a complaint is presented.

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