False Allegations of Sexual Harassment: Misunderstandings and Realities

proof

Since sexual harassment can be in the eye of the beholder, only evidence that meets civil standards of proof, argues a university complaints investigator, can fairly decide what happened.

Why is there a great concern about false allegations of sexual harassment (or other forms of harassment) when few formal complaint investigations result in findings of false allegations? Simply put, the stakes are high. There may be negative impacts on career and reputation. Potential job loss or discipline is a reality. The stress, time, effort, frustration, and financial cost take a toll on the parties. Establishing the basis for a complaint, or defending against allegations,
particularly if this entails proving a negative—that something did not happen when it is alleged it did—is often a difficult and lengthy process. The embarrassment and emotions attached to allegations and evidence can undermine even the strongest individual.

As an investigator of hundreds of complaints I have seen much confusion and many misconceptions about false allegations. Using illustrations from university settings and popular culture, this article explains and clarifies what is and is not a false allegation, contrasts false allegations with allegations that are not proven (not substantiated) following an investigation, and discusses some important considerations when dealing with allegations of sexual harassment.

Don’t think of allegations as being “true” or “false”

It is simplistic and unhelpful to frame allegations as “true” or “false”. Doing so leads to confusion and misunderstandings. Here’s why. An allegation is a statement of belief that some wrong or harm has occurred. For example, a student alleges that a professor has sexually harassed her; she believes the professor has crossed the line into behaviour that is illegal, contravenes the university’s policies, is unacceptable, and harms her (her learning, her grade in the course, her completion of the course, academic references, her comfort level with the faculty member, her academic or personal reputation, etc.).

Allegations of sexual harassment (or, indeed, of other types of harassment, such as racial harassment, bullying, homophobia, or psychological harassment) will—following a fact-finding investigation—either have merit or not. Merit is determined through a proper investigation: a fact-finding process aimed at clarifying and assessing the issues raised by the allegations. Complaints investigators do this by gathering evidence relevant to the allegations and assessing this evidence against established standards of what constitutes sexual harassment. These standards have evolved over the years through decisions of courts, human rights administrative tribunals, and arbitrators, and are informed by research and policy development. Credibility of the parties is also assessed.

If the allegation has merit it will be substantiated by the evidence. If it does not, it will not be substantiated. In a few instances, a determination of “unable to substantiate” may apply, if the investigation has not been able to find evidence persuasive either way, often the result of a lack of any evidence (direct or similar fact) which might shed light on the matter.

true or false?What is a “false allegation”?

In sexual harassment investigations, a false allegation is one the complainant brings knowing that what is alleged did not occur and, therefore, could not constitute sexual harassment. Malice may or may not exist. Generally, we consider fabrications to be false allegations.

However, be careful not to define lying as a false allegation. While popular discourse may equate false allegations with lies, not all lies are false allegations. For example, a complainant may not disclose relevant facts owing to shame, embarrassment, fear, mental illness, or simple mistake. While this may undermine the complainant’s credibility, it does not in itself make the allegation a fabrication. For example, let us say a complainant (an administrative staff member) does not disclose the fact that he engaged in kissing and sexual behaviour with the alleged harasser (a professor) or that such behaviour was consensual in the early days of their intimate relationship. However, this “lie” (lack of full disclosure) does not necessarily mean his allegations of subsequent sexual harassment by the faculty member are false.

The aim of an investigation

A proper investigation ensures that the fact-finding process—including the identification, gathering and assessment of evidence—is fair, objective, and thorough. It answers two questions: Did it (what is alleged) occur? And if it did, what is the significance of it? In other words, is it sexual harassment?

A superficial understanding of harassment is inadequate, and a superficial analysis based merely on the complainant’s prima facie case, or focussing on subjective impressions, is insufficient. The totality of the evidence must be assessed to determine whether specific behaviours constituted sexual harassment—or something else, such as interpersonal conflict, miscommunication, unprofessional behaviour, or potential criminal behaviour, such as sexual assault or criminal harassment (stalking). An evidence-based process is fundamental to a careful, objective, and thorough analysis using the required “balance of probabilities” that is the civil standard of proof.

Not proven (not substantiated) does not mean a false allegation

An investigation may conclude that allegations are unsubstantiated by the evidence for any number of reasons, none of which relate to fabrication or false allegations. For example, Faculty Member A may allege sexual harassment by Faculty Member B. The allegation is not proven. Person A may misunderstand what is defined as sexual harassment; for example, the jokes told or the comments made by B are inappropriate but do not constitute sexual harassment. Person A may not have accurately identified who made the comments; therefore, the allegation made about Person B is not substantiated. Person A may not have accurately or completely identified the comments or the context in which the comments were made. Or, the comments were made, but the evidence shows that the conduct was mutual, and Person B could not reasonably know her or his comments were unwelcome. Or, a single event is complained of—Person B shows Person A a YouTube video of women swimming naked—yet the investigation concludes that this single event is not sufficiently severe (or, perhaps, sexual) to be considered sexual harassment. Keep in mind that any of these examples may indicate that inappropriate or unprofessional conduct occurred, but it does not fit the definition of sexual harassment.

Don’t assume a complainant’s prima facie case is sufficient proof of harassment

Essentially, a prima facie case of sexual harassment exists when a complainant’s allegations, on the face of it, appear to have all the elements of sexual harassment. While the onus is first on the complainant to make out a prima facie case (before the onus shifts to the alleged harasser to respond to the allegations), the prima facie case does not in itself create proof of substantiation.

As noted earlier, whether the complaint has merit will be determined through a fact-finding process. Too often people quickly and inappropriately rush to judgment, declaring harassment exists before the facts are known, the evidence is assessed, and a proper determination is made. The college-based play Oleanna illustrates this. Indeed, David Mamet’s controversial play is sometimes referred to as a he-said-she-said sexual harassment story. It is also considered to be a play about false accusations of sexual harassment.

lawWritten in the early 1990s and still performed today, Oleanna prompts us to interpret the dialogue, tone and body language of John, a professor in his mid-forties, and Carol, his student. Over three provocative acts, the play may enrage audience members as they empathize with either character, or both, or neither. Or, it may challenge us to unpack an unhealthy brew of sexual harassment (or inappropriate behaviour? or rape?), unclear communication, partisan perceptions, and strong emotions, as well as issues of power, gender, class, and age. We struggle with what appears to be the male (and professorial?) privilege of John and the awakening feminist (and mob?) analysis by Carol.

But is it sexual harassment? Are these false allegations? As an investigator I am intrigued and frustrated by the play. It presents prima facie evidence of “something”—possibly of sexual harassment, maybe of assault, probably of abuse of power (by the professor? the student? the tenure committee?), certainly of unclear communication and mixed (misguided? malicious?) motives. As theatre it is enormously effective, as it places us in the role of judge and jury but without the benefit of fact-finding and analysis. We overlay our own subjective impressions on those of the prime characters. As an attempt to discover the truth and deliver fairness, justice, or equity it fails miserably—and that may be why it makes good theatre.

The power—and Achilles heel—of subjective impressions

Over the years, labour arbitrators have cautioned against using subjective impressions to decide the merit of workplace grievances of harassment. They have emphasized that objective standards, not solely the subjective impressions of the alleged victim or alleged harasser, must be applied in determining whether harassment or abuse has occurred. A famous photograph illustrates this; conduct occurred, but does it constitute sexual harassment?

American Girl in Italy by Ruth Orkin is one of the best-known street photographs. Taken in 1951 in Florence, Italy, the photo shows a woman walking along a sidewalk while men look at her. My description is carefully worded. I could have said “young woman” or “girl,” a “gauntlet of gawking men” (as some have said), or “ogled by 15 men,” or “hassled” or “harassed.” I could describe the body language of the woman, the look on her face, or that of the men, especially the man sitting on a motorcycle and another man with pursed lips who has his hand near (on?) his crotch. The latter has been described by some as “grabbing his junk” or “that not-so-innocent-looking gesture with his hand.” Some describe the men as “leering and lascivious,” the woman representing “either stoic independence or sheer vulnerability.”

In interviews this year, on the 60th anniversary exhibition of this iconic photograph and other works by Orkin, Nina Craig, who is the subject of American Girl in Italy, says, “Some people want to use it [the photo] as a symbol of harassment of women, but that’s what we’ve been fighting all these years. It’s not a symbol of harassment. It’s a symbol of a woman having an absolutely wonderful time!” Craig describes the street behaviour of the men (in the photo, in Italy, and elsewhere in Europe) as making her feel “appreciated.” And what of the gesture by the man in the photo? Craig explains her experience and interpretation of his behaviour and of the other men this way: “That young man is not whistling, by the way; he’s making a happy, yelping sound, and where you see him touching the family jewels, or indicating them, with his hand—well, for a long time that was considered an image people should not look at. That part was airbrushed out for years… But none of those men crossed the line at all.” Were the men harassing her? “I can tell you that it wasn’t the intent of any man there to harass me.”

Are “facts” socially constructed?

For her part, Orkin says “Being a photographer is making people look at what I want them to look at.” What do you see when you look at her striking photo? How are we to “factually” interpret the experience of the woman in American Girl in Italy and the behaviour of the men? Craig does not allege harassment. Others who witness the behaviour or who experience similar treatment by men might do so. Which version do we believe? (Note that the Supreme Court of Canada has ruled that if only some women, and not all women, are victims of sexual harassment, it does not mean the conduct is not sex discrimination.)

The law and case law also tell us we need to consider what is known or ought to be known to be unwelcome comment or conduct, and what might constitute sexual harassment. What would a reasonable person, in 1951, conclude? In 2011? In Italy versus Canada? What would a similarly situated reasonable woman conclude?

I recall a young, second-generation Asian student I interviewed many years ago. Another student had brought a complaint against a professor alleging sexist, homophobic, and racist behaviour and the creation of a poisoned environment. This witness recounted several examples of classroom comments that struck me as being potentially racist (as well as sexist, and some as homophobic). I asked if she considered the professor’s behaviour to be racist. “No,” she replied, “it’s inappropriate—he shouldn’t be saying these things. It’s not good.” I probed, wanting to understand her interpretation. She looked at me (an older, white woman) as though to say, “You don’t get it” and then patiently explained, “This is my daily experience. I am a young Korean woman. If I called this racism and sexism, I wouldn’t be able to get through my day. I don’t have time to do this. I have to live my life.” The effect of this professor’s behaviour was one thread in the rich and sometimes painful tapestry of this woman’s life.

What can we learn from such examples? As teachers and colleagues we can minimize the possibility that our behaviour may cause harm or be interpreted as harassment by being mindful of the value of being respectful, reasonable, and empathetic in our interactions with others.

Catherine Burr is a conflict and investigation specialist. She has more than 30 years’ experience investigating workplace sexual harassment, discrimination, bullying, and workplace violence complaints. She teaches human resources management in the Masters of Public Administration program at The University of Western Ontario.

  • MD

    I posted previously on this blog. I was falsely accused of sexual harassment out of vengeance by a young female co-worker who was upset about comments commending another student who outdid her research. I lost everything (job, education, house, healthcare, etc.). I was forced to take legal action against the false accuser and won a judgment in my favor. Now 3 years later I’ll be going to court against the institution. Hateful, overzealous HR employees withheld information from, misled, and lied to witnesses and fabricated factually false reports when witnesses didn’t confirm their preconceptions. One should never assume investigators will be honest and impartial. HR employees have been demonstrated to lie pervasively in many court cases across the country and these are the same types who ignored genuine sexual harassment complaints 20 years ago. Sexual harassment undoubtedly occurs and causes grief to those affected. However, false accusations of sexual harassment are much, much more damaging and yet those accused have no protection or recourse.

    • Quinn learn

      I am in a situation that sounds a lot like yours, I just got done going through the problem solving committee in the company I work for and I couldn’t believe they withheld the sexual harassment. I am confused as to what to do because it was an attack on me. How did you prove your case? My email is allreadymaid77@hotmail.com. Let’s talk please I can use your advice and experience.

      • MD

        Dear Quinn, I’m not sure what your situation is, were you harassed or falsely accused of harassment? I’m not sure what you mean by ‘withheld the sexual harassment’. Could you describe in more detail before I respond more fully?

        In my case I was falsely accused, I subpoenaed institution documents through the freedom of information act (or something similar), I had witnesses re-interviewed by a third party, I filed a civil suit against the false accuser, and I filed a complaint with the EEOC. If you were harassed as opposed to falsely accused, there are similar steps you need to take and usually hiring an attorney will be well worth the cost (I should have done it much sooner).

        MD

        • Ims

          MD help me it seems I am being falsely accussed by a new employee that I beleive wants to make a quick buck

        • Ims

          *believe

        • MD

          Dear Ims,

          I don’t know you’re situation and I’m not sure how a new employee would make any money by accusing you. Usually false accusations are for other reasons (as an excuse for something else, to remove an unliked employee, for a promotion, revenge, etc.). If you’re part of a union, you’re lucky as they have leverage, work with them. Company e-mails are free game for the company and they can look at whatever they want. Collect all the evidence you can, including from your colleagues. Get something in writing or record it, but be careful not to leak details about the false accuser as they’ll then accuse you of “retaliation”. Getting an attorney is highly recommended. It might cost a few hundred dollars, but you might be glad you did it. They can threaten your company with discrimination or wrongful termination. At the very least, get a free consultation. Lastly, if you’ve done nothing wrong, have faith in your integrity. Hope that helps.

        • Ims

          I was questioned with union representation a few days ago and only my intra company IM messages are being questioned.. I need your guidance please.

    • robert rodemich

      are you doing both of these as a civil case , im in a simalar situation and i got proof and no one will listen , i need to know what course i should take because it seem no lawyer is interested.so im thinking maybe a cival suit is in order

      • MD

        Hi Robert,

        I’m sorry to hear this has happened to you, but you’re not alone and worse things can happen. I can’t comment too much as my case is active. I did both as civil suits (discrimination/wrongful termination/civil rights violation). Most attorneys won’t be interested in your case unless you have solid proof, but keep trying. Currently the law works in favor of false accusers and institutions/organizations that take their side. Be prepared to spend a lot of money with no guarantee of a favorable outcome. I subpoenaed documents from the institution I was at that demonstrates prejudice/inappropriate behavior and have witnesses to bring to trial. Good luck!

  • mike jones

    i recently had a classmate file a sexual harassment complaint against me saying i offered her money in exchange for sex. She never told them she asked me how much money i had and that i would have to pay 1000$. she lied completely and there was no text message of me asking her for sex but yet they still charged me. Everytime i asked to see it they would never show it to me but i already know it doesnt exist. is there any thing that i can do

  • robert rodemich

    i just lost my job because i was accused of harassment, its a long story but her husband caught her and they were at my job claiming harassment , there is more to it i was a manager and she wanted to fix her marraige i said great hope it works out , next day i found out she was having another afair with one of my employees , i told to stop with all the men here and do your job , well she wouldn’t she even admitted it was all her fault and that she would leave , she did not ! so they did a non-investigation because there is not one piece of documentation of her claim or the investigation unless they are lying and that could be , but i believe the law gives me the right to have the finding and a copy of her claim , i got nothing resent request today , so after they fired me they banned me and no one would even talk to me , the plant manager told her to get a restraining order and she did and this is were it gets even better other then being full of lies there was a letter from plant manager to her and he makes a very strong point to say the first time he heard of the claim was nov 30 but on page 25 there is a email i sent her and she points out another plant manager who is embedded in her email and date nov 21 , now they are both lying about what they knew , its obvious they were working with her to set me up and i can prove it all they got not paperwork for anything , she is lying through her teeth , i know my rights have been violated and i can find no one to look at the case as a whole.. i was one of the top sales managers and i realize my mistake and i was trying to fix it , this is so dirty on so many levels and im very frustrated that no one will listen , once your accused you amy as well be a murderer , they people i have worked with side by side for 11 years wont talk to me she is still employed she hasn’t even hit her first year there yet ,im not giving up because i know there is something that can be done i just have to find what it is , my life……ruined

  • PhilA

    Simplest way to avoid harassment claims in the work place – if you are a male, stay the heck away from women. No lunch, no coffee, no after work drinks, no confidential meetings behind closed doors if you are a man and the person you are interacting with is a woman. There are several women who can and will twist facts to their advantage. In today’s litiguous society if you are a male accused of sexual harasment you are immediately fired.
    A close male friend of mine who was a huge proponent of affirmative action and dedicated to helping women succeed at the work place was just recently wrongfully fired due to a misundertood sexual harassment claim by a young female employee.
    Certainly do everything you can to stay collegial and fair to female employees, but please don’t find yourself in 1:1 situations wth them.

    • robert rodemich

      you are correct , I guess I thought I would not have the displeasure of meeting someone like that

  • robert rodemich

    what makes my blood boil is I can prove my bosses knew for 9 days ahead of time and were trying to set me up because this same girl started an affair with there buddy part of “the good-old-boy “network , and I cant get a lawyer to touch it , and I can prove all of it , maybe they all think its on contingency, I’m not giving up,But crap if its not cut and dry for them they don’t want it .I just had trial for the restraining order and I knew from my research I judge would give her the order if only to make sure the judgffe is protected, but the judge only gave her 6 months and said it was a cool down period , could tell judge was reading through her B.S and the judge asked what I did to make her fear me , and get this she said “nothing he is a nice guy he has never been like that ” and she also implied I was fired for a letter on my personal email on a weekend .all no threatening. ill find someone who likes to mix it up a little

  • mmcowby

    The laws are there because of what happened to my wife and I. A manager had an affair with my wife. When she decided to end it he couldn’t let it go. Constantly emailed and texted until she blocked him from her phone. Then emailed and called her into an unused office to confront her several times a day. He even had his mother text my wife at work about the affair that had ended. When my wife confessed the affair to me, she said she was leaving her job at the request of the manager who was worried about ” Quid Pro Quo” and loss of his job. My wife turned over the letters and poems and emails and as we were reading through them the manager emailed many more times not knowing I was on the receiving end and mentioned that he had just had sex with his girlfriend and that her private parts did not have any odor. Intent doesn’t need to be explained. I then sent him an email from my own account that stated the affair was over. First the manager apologized then a few hours later emailed myself that I needed to have my wife leave her employment and that if I talked with the business that he would ruin my life. I called the plant manager and requested a meeting with him to show the abuse and the threating media and to protect my wife. The plant manager
    told me that the one email sent to me about the request of termination of my wife and the threat of ruining my life was enough to terminate the manager. Years of training on the subject on my behalf by my employer and contacting the Department of Fair Labor was enough to require the manager to be terminated that same day. As the law states I too have the right to sue the manager and the franchise company as the spouse of the victim as well as my wife the victim. We have no plans to hire an attorney as we are both pleased with the way the company reacted to our claims. You see those laws have to be in place for the reason I have stated above.

  • http://falserape.blogspot.ca/ Sean Kayvon

    Please ready this article which is based on my own experience with the Canadian justice system on how to protect yourself against false accusations of sexual assault / false rape:

    http://falserape.blogspot.ca/2014/12/aviod-false-rape-sexual-accusations.html

  • solder_nut

    Well said and they automatically point finger at weaker link, the male because I was in that one percentile. Without stating too much info and for obvious reasons, I am going to use your provoke, distort and invent and add, a false arrest and a one day court scenario because they knew it was false. There is so much more that I am considering Investigative Journalism. So much more that it seems I have stumbled onto a protected witness! Yes, it is that crazy……..