Labor and Employment Law

The "She Asked For It" Defense Strikes Again

In another example of why women hesitate to bring sexual harassment claims, a judge has ordered twenty two women who are bringing a sexual harassment claim to turn over their cell phones and social networking passwords to attorneys for their former employers. The judge will allow these attorneys to examine their chats, text messages, tweets, private messages, pictures, posts and emails.

The former employer claims that they need the information to explore whether the women used the words they claim offended them, their romantic lives, and other information to determine whether they were indeed subjected to unwelcome sexual harassment and, if so, the extent of their emotional damage.

The big smoking gun the employer pointed to was a shirt one of the women wore in a photo with the word, "Cu**" on it. Apparently, if you wear such a shirt on your own time, no matter your intent, you have extended an open invitation to all your supervisors and male coworkers to sexually harass you. Sort of like the argument that African-American employees who use the n-word can't be offended when someone else uses it toward them.

The judge said this about his reasoning: "I view this content logically as though each class member had a file folder titled "Everything About Me," which they have voluntarily shared with others. If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced."

This is a case where twenty-two women say they were propositioned, fondled, and subjected to unwanted comments by their manager. Twenty-two! That means this employer is claiming twenty-two women are all making up the same story. That twenty-two women asked for this behavior.

Which brings me back to the "she asked for it" defense. Too many judges in sexual harassment cases allow the harasser to claim that a woman's use of four-letter words, her clothing, or her sex life with others mean that she wasn't offended when she was groped, insulted or grabbed by her supervisor. If a woman isn't a delicate flower, blushing at the merest hint of foul language or the mention of sex, she's apparently an open target.

So, ladies, open your diaries, love letters, private email, intimate discussions with friends and anything else in your life. If you are bringing a sexual harassment claim, your harasser can see it all so they can claim you asked for it.

I have to say this to management-side employment lawyers who use this tactic to humiliate sexual harassment victims: "Have you no sense of decency, sir? At long last, have you left no sense of decency?"

See more employment law posts on Donna Ballman's blog, Screw You Guys, I'm Going Home

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