It is not unusual for a male employee disciplined for sexual harassment to in turn accuse the employer of sex, race or age discrimination based on the investigation and subsequent disciplinary action taken. Plaintiffs rarely prevail on these claims before the EEOC or federal courts due the difficulty in demonstrating discrimination in the investigation. Last month in Durant v. MillerCoors LLC, the Tenth Circuit Court of Appeals rejected these claims from an accused harasser.

The plaintiff was terminated after an investigation of complaints made by a female subordinate. He claimed reverse sex discrimination based on his assertion that the harassment allegations were so incredible that hostility toward males could have been the only reason for the decision. The Tenth Circuit rejected this position, noting that in reverse discrimination cases, plaintiffs have a higher burden of proof to demonstrate that an employer discriminated against a traditionally favored group.

In this case, the plaintiff offered no evidence of bias beyond his characterization of the credibility of the complaint. He alleged that he had been sexually harassed by another female employee who was not disciplined, but the court concluded that the circumstances were distinguishable.

The plaintiff also took the novel position that his participation as the accused party in the harassment investigation protected him against retaliation under Title VII. The Tenth Circuit noted that defending oneself against harassment claims is not protected activity under the statute.

Employers should not be dissuaded from taking prompt and effective steps in response to sexual harassment complaints due to concerns over legal claims by the accused party. While the investigation needs to be fair and complete, the employer is entitled to make credibility judgments without the likely possibility of being faced with a second viable discrimination claim from the accused harasser.