After investigating allegations of sexual harassment and taking disciplinary action, we see a surprising number of claims from the accused harassers that they were actually the victims of alleged discriminatory behavior that led to the investigation and punitive action taken. These allegations sometimes place employers in the uncomfortable position of facing civil rights claims regardless of the final outcome of the investigation. A new unpublished decision from the Eleventh Circuit Court of Appeals (which includes Georgia) demonstrates how employers can justify disciplinary action taken against an accused harasser who is also a member of a protected classification.

In Choate v. Atlanta Radio LLC, the plaintiff was terminated following complaints that he grabbed a coworker’s rear end and was grinding against their leg. He sued, claiming that he had been discriminated against based on his sexual orientation. As proof, he cited a coworker accused of belligerent behavior who was not fired, as well as alleged bias on the part of one of his managers. The district court dismissed the claim and the plaintiff appealed to the Eleventh Circuit.

The appellate court rejected his arguments, affirming the dismissal. The Eleventh Circuit concluded that the manager in question did not participate in determining disciplinary action. The alleged comparator was accused of engaging in rude behavior, but this was not similar in gravity to non-consensual touching. The level and severity of the two incidents justified the different actions taken in response.

In most situations, bald allegations of bias by an accused harasser should not affect the outcome of the harassment investigation. Title VII obligates employers to investigate and address legitimate harassment complaints in a manner intended to prevent their repetition. Allowing harassers to escape appropriate disciplinary action based on fear of speculative legal claims can result in employers failing to meet their legal obligations to the harassment victims.

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