The “You Can’t Prove It, He’s the CEO” Defense

Here’s some legal advice to employers everywhere: When an employee complains of sexual harassment, don’t respond by saying, “You can’t prove it, he’s the CEO, and nobody is going to back you.”

That may be legal advice, but in the employment setting, legal advice is often just plain ol’ common sense.

In a case from New York, a woman working for a financial services company complained that her boss, the CEO, was sexually harassing her. But when she first complained, the HR manager was gone, and her only supervisor was the CEO. So she complained to the head compliance officer about the CEO’s boorish behavior.

The head compliance manager, who must the poster-boy for what a company does not want in a head compliance manager, proferred the “You can’t prove it, he’s the CEO, and nobody is going to back you.” defense.

I’m not making this up!

Plaintiff had a poor work record: she missed a lot of work, sales were low, etc… Some of which may be explained by harassment. After all, who wants to go to work everyday so she can be sexually harassed by the CEO?

Employer fired plaintiff — ostensibly for poor work performance — and she sued for sexual harassment and retaliation. The case was brought under the New York City Human Rights Law which is similar to California’s FEHA. The federal trial court granted employer’s motion for summary judgment.

Plaintiff appealed and the Second Circuit Court of Appeals essentially concluded that a jury could find that the CEO used the employee’s work performance as a cover-up for retaliation and the court noted that even an employee with a poor work record is entitled to a workplace free from sexual harassment.

So now plaintiff will get her day in court, unless both parties wise-up and settle this matter. Which probably should have been settled before, but since it wasn’t and defense counsel apparently wanted to play hardball, Mr. CEO is now the star character in a published federal opinion that will be around for eons detailing his boorish behavior.

Take that, plaintiff!

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F. 3d 102 (2nd Cir. 2013).

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