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Inadequate Sexual Harassment Investigation Can Help Support Discrimination Claim By Alleged Harasser

On May 22, 2009, in the case of Sassaman v. Gamache, Commissioner, Dutchess County Board of Elections, the United States Court of Appeals for the Second Circuit reinstated the gender discrimination claim of an employee who was forced to resign because another employee accused him of sexual harassment. The Second Circuit is the federal appellate court that covers several states, including New York.

The plaintiff in that case, Carl Thomas Sassaman, worked for the Dutchess County Board of Elections. In March 2005, another Board of Elections employee, Michelle Brant, accused Mr. Sassaman of harassing and stalking her. Mr. Sassaman denied harassing Ms. Brant. He also claimed that she had previously asked him if he was interested in a one-time sexual encounter with her, which he declined.

When Ms. Brant complained about the sexual harassment, the Commissioner of the Board of Election, David Gamache, suggested that Ms. Brant file a complaint with the Dutchess County Prosecutor’s office. The Prosecutor’s office subsequently found insufficient proof that Mr. Sassaman had enaged in a crime.

However, Mr. Gamache and the Board of Elections conducted virually no sexual harassment investigation of their own. Instead, they immediately suspended Mr. Sassaman without pay. A few weeks later, Mr. Gamache gave Mr. Sassaman the option to resign, or he would be fired. According to Mr. Sassaman, Mr. Gamache told him “I really don’t have any choice, Michelle [Brant] knows a lot of attorneys; I’m afraid she’ll sue me. And besides you probably did what she said you did because you’re male and nobody would believe you anyway.” Given the options, Mr. Sassaman resigned.

Mr. Sassaman then filed a lawsuit, alleging Mr. Gamache, the Dutchess County Board of Elections, and Dutchess County discriminated against him because of his gender in violation of Title VII of the Civil Rights Acts of 1964. The United States District Court for the Southern District of New York dismissed Mr. Sassaman’s case, concluding he did not have sufficient evidence of sex discrimination to even get to a jury. However, on appeal, the Second Circuit reinstated his case.

The Second Circuit reasoned that a jury could interpret Mr. Gamache’s statement that Mr. Sassaman “probably did what [Ms. Brant] said you did because you’re male,” as evidence of gender discrimination. Specifically, a jury could reasonably interpret his statement to mean that Mr. Gamache assumed Mr. Sassaman sexually harassed Ms. Brant based on a discriminatory assumption that men are likely to engage in sexual harassment. Adverse employment decisions based on stereotypes about the behavior of men or women are discriminatory, and violate Title VII.

The Court noted that, in context, the fact that Mr. Gamache terminated Mr. Sassaman’s employment without adequately investigating Ms. Brant’s sexual harassment allegations further support his gender discrimination claim. While Mr. Gamache claims he terminated Mr. Sassaman’s employment because he was afraid Ms. Brant would sue for sexual harassment, a jury might not believe that argument.

However, the Second Circuit was careful to note that an insufficient sexual harassment investigation, on its own, is not enough to prove sex discrimination. Rather, when there is other evidence of discrimination, the lack of a proper investigation potentially can support a discrimination claim. In other words, the Court did not rule that an alleged harasser can sue for discrimination merely because the employer fired him or her without engaging in an adequate investigation. It merely recognized that, in some cases, the employer’s failure to conduct a thorough sexual harassment investigation can further support a discrimination claim.

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