is Consent A Common Defense In Sexual Harassment Cases?
My Chicago office files many sexual harassment cases in Illinois and I see many types of defenses filed by the company. One of the most common types of defenses is consent. Why do so many companies choose this defense? One reason is that because of text messages and email, many times employees have proof that their supervisor is sending them inappropriate messages and is trying to have a sexual relationship with them. Once this evidence is provided to either human resources or the company attorney, the company has no defense. They can't claim the sexual harassment is not taking place, it is right there in black and white. So they must come up with some explanation of why the supervisor is sending the sexual messages. One of the most common reasons they tend to come up with is consent. By claiming consent, they try to avoid strict liability which attaches when a supervisor engages in sexual harassment of an employee. The consent defense is usually pretty easy to overcome by lack of evidence on the companies side. If there truly is consent, there should be messages from the employee to the supervisor showing a two-way sexual conversation.
Many times there is not and the only thing the company can produce are other employees who make the claim. The problem with this strategy is that the current employees have a reason to lie for the company as they fear for their own jobs. And if the current employees saw all of this going on, why didn't they something about it? Another easy way to overcome the consent defense is to look at the telephone logs. Generally one would see calls coming from the supervisor to the employee not the other way around. If it were truly a consensual relationship, you would not see that pattern. The same is true for email records. With current technology there is generally a good electronic trail of evidence and the trail don't lie. An attorney that has a good background in technology and is experienced in getting electronic evidence would be helpful in this type of case. Don't delete anything on your phone or any email. This will be your best evidence and legal issues could arise if you delete evidence.
Another thing to keep in mind is that many times the supervisor is married and therefore the whole consent defense doesn't make sense. It is hard to believe a married supervisor and unmarried employee are having a consensual relationship. Plus, even if they engaged in a consensual relationship, once the employee says no more, consent ends. So even if the company can prove a consensual relationship, that defense fails at the point where the employee tells the supervisor she does not want to see him anymore. In my experience, this usually results in some negative job action against the employee which is called retaliation. A company or its agent cannot take a negative job action against an employee for opposing sexual harassment. If the company does, strict liability attaches. A good experienced employment lawyer can go through all of the pros and cons of filing a complaint based on sexual harassment and retaliation with you. It is very important that you take action fast because there are very strict time limits that apply to the filing of a complaint. If you miss the filing deadline by one day your case will be lost, although there may be other venues with other causes of action that may apply to your case.