By Lawrence P. Schaefer |
I will be moderating a panel discussion, with three other experienced employment litigators, on tips for successfully litigating harassment claims in the May 21-22 Upper Midwest Employment Law Institute. This blog summarizes the “tips” we intend to cover, which can make the difference between winning or losing these cases.
The Nature of Litigating Harassment and Sexual Harassment
First, harassment cases can involve far more than sexual harassment, and even sexual harassment cases don’t have to be based on conduct that is “sexual” in nature. If abusive conduct is motivated by any protected class status (i.e. race, gender, age, national origin, religion, sexual orientation, marital status, etc.), or even by a desire to retaliate because of past complaints, then it can be actionable as “harassment.” Moreover, “sexual” harassment claims encompass situations were women are treated more harshly than others, even if the conduct isn’t “sexual” in nature.
Second, the key to proving most harassment cases is establishing that the conduct at issue is sufficiently “severe or pervasive” to really affect the work environment. This generally requires either verbally abusive and/or demeaning statements being made frequently (i.e. more than just a few times), or establishing physically abusive or intimidating conduct – grabbing, touching, kissing, hugging, or threats to engage in this kind of behavior. If both categories are present, the chances of establishing a severe or pervasive impact is significantly enhanced.
Third, proving liability on a harassment case can often hinge on the investigation the employer conducts, and whether the investigation resulted in “prompt and appropriate corrective action.” Indeed, if the harassment is based on the conduct of a co-worker, and the employer has promptly investigated the complaint and terminated the co-worker, it is likely that this will provide a complete defense to liability. By contrast, if the employer has either refused to investigate a complaint, or conducted a perfunctory or “whitewash” investigation, then this will be critical evidence supporting liability.
Fourth, these cases are often won or lost based on how discovery is conducted. Counsel for the victim needs to be prepared to aggressively limit the scope of discovery permitted into the victim’s past sexual and/or medical history, and needs to probe extensively into other past incidents of harassment, especially if these past incidents involve the same or similar wrongdoers or decision makers.
The Victims of workplace Harassment
Finally, be prepared to maximize the victim’s ability to recover damages in these cases, and especially damage to reputation and emotional distress damages. This can and should often involve retaining expert treating and/or forensic mental health professionals to convey and gravity and likely duration of the harm suffered, and can be critical in helping a jury really understand this harm and value it appropriately. Furthermore, if the victim was “fragile” when the harassment occurred, this should lead to a far more significant award, as the general rule that a tortfeasor takes his or her victim as he or she finds them applies fully to recovery in sexual harassment cases, and understanding this principle should help maximize the damages awarded.
The Political Climate’s Impact on Litigating Harassment Cases
Unfortunately, harassment cases are on the rise as individuals prone to this behavior have likely been emboldened by the election of a President who has a history of treating women in this fashion, and who has fanned the flames of xenophobia by caricaturing immigrants and those of the Muslim faith. Individuals victimized by a workplace tainted by harassment need advocates who fully understand all of the above principles.
Lawrence P. Schaefer has earned the respect of judges and other lawyers for his thorough and aggressive client advocacy in negotiation and litigation. He focuses exclusively on representing people who have been subject to employment discrimination at work. Larry serves as the firm’s President and head of litigation.