It is common for male employees disciplined over allegations of sexual harassment to file discrimination claims against their employers, alleging age, sex or other discrimination as a motivating factor behind the decision. The EEOC and federal courts are usually reluctant to support such claims when the employer acts after having conducted a reasonable investigation of the initial harassment complaints.

Last month, the Ninth Circuit Court of Appeals rejected sex and other discrimination claims made by a group of male pilots terminated following complaints of sexual harassment by a female flight attendant. In Hawn v. Executive Jet Mgmt., Inc., the accused pilots alleged that a number of female flight attendants had participated in sexual conduct and banter, yet they were not disciplined for this behavior.

The Ninth Circuit concluded that the two groups of employees were not similarly situated, and could not be used to compare treatment by the employer. The main distinction between the male and female employees in this case was that no one ever complained about the conduct of the female flight attendants. Presumably, their behavior was not severe enough or unwelcomed to the point where other employees considered it to be harassing.

The court realized that this distinction should not result in a "race to the HR office" to complain. It noted other distinguishing factors between the male and female employees' conduct, including several instances of particularly severe harassment by the terminated males.

Employers investigating and responding to harassment complaints should not feel compelled to take identical disciplinary action against every employee found to have participated in such behavior. Employers can make distinctions in their responses based upon the individual circumstances, context and severity of the alleged conduct.