WHAT I WOULDN'T DO: Legal Updates from HR's Trenches: No go: Attempts to blame sexual harassment on plaintiff backfire.

One of our primary roles as attorneys is to protect our clients from their worse instincts, like this one: "Let's file a motion to require a sexual harass ment plaintiff to submit to a psychosexual examination."

Umm, no.

In a recent case, a federal court decided the propriety of just such a motion (very much) in the employee's favor. (Carbajal v. Hayes Management Services, No. 4:19-cv00287-BLW, DC ID 2022)

A psychosexual examination is an evaluation that specifically addresses sexual development, sexual deviancy, sexual history and risk of reoffense as part of a comprehensive evaluation of a sexual offender. In Carbajal, the defendant sought the examination to determine whether the plaintiff subjectively perceived the work environment as sexually offensive, specifically about some of her alleged "friendly" behavior towards her accused harasser.

The court wasn't having any of it. As stated in its ruling, "Hayes Management asks the Court to order Carbajala plaintiff in a civil case alleging she is a victim of sexual harassmentto undergo this highly intrusive and personal evaluation intended to ferret out a convicted sex offender's future dangerousness. Hayes Management's request not only demonstrates a gross misapprehension of [the] law ... but borders on being abusive and harassing ...

"Hayes Management's argument requires a psychosexual evaluation of Carbajal as a means of probing into her sexual attitudes and private sexual behavior to determine the subjective offensiveness of Chris Hayes' conduct, which grossly misconstrues what constitutes unwelcome...

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