In many hostile work environment claims, the employee under investigation for harassment will admit to having engaged in some or all of the alleged conduct, yet will insist that his or her conduct was not improper. Often, the alleged harasser will believe that the accuser will need to prove that the accused acted with bad intent. This is not the case. Other times, the accused may falsely believe that because the other employee did not immediately complain, the conduct was not unwelcome. There are also a whole range of excuses for why the behavior occurred. And sometimes, the accused really didn’t do anything wrong. In any investigation of a hostile work environment, it is an HR representative’s role to be aware of the differences between assertions of irrelevant innocence that won’t stand up in trial and a true defense. Understanding the difference can help HR representatives to determine the appropriate action.

For a viable hostile work environment claim to exist the following must be true:

• the conduct was unwelcome
• the conduct was objectively offensive to a reasonable person
• the conduct was subjectively offensive to the complainant
• the offensive conduct was severe or pervasive
• the conduct was “because of” race, sex, religion or other protected status
• the employer should be held liable for the conduct based on what it did or didn’t do.