The recent and growing #MeToo and #TimesUp movements give us all hope that we can make real progress in eradicating sexual harassment from the workplace.
Unfortunately, this hope often meets harsh reality when sexual harassment cases proceed into litigation, where decades of difficult precedent creates sometimes insurmountable obstacles to seeking justice for clients subject to harassment in the workplace. Advocates in this field need to understand that these two arenas – the broader societal and cultural recognition of the damage caused by sexual harassment as exemplified by these movements and the legal system where these claims are adjudicated – are not distinct, but that the legal system can and should be influenced by our growing societal awareness of the need to eradicate this problem.
Steps need to be taken throughout the process of advocating for individuals subject to sexual harassment which can help to ensure that past legal standards are re-evaluated in light of the impact of these movements.
Terminology Matters when Prosecuting Sexual Harassment
At the outset of advocating for individuals subject to workplace harassment, discard the practice of characterizing your client as a “victim” in the workplace. This can serve to de-humanize your client, and results in a focus on him or her, when the focus needs to be on the nature of the harassment to which they were subjected. Instead, focus on detailed descriptions of the harassing conduct, and understand whether it states a “quid-pro-quo” or hostile environment claim. The former involves sexual conduct which conditions employment, or perks of employment, on acquiescing to sexual advances. The latter involves conduct which is only actionable if it is sufficiently “severe or pervasive” to alter a term or condition of employment, thus creating a “hostile environment.” This is the area where extremely difficult legal precedent creates sometimes insurmountable obstacles in litigation.
If the claim is quid-pro-quo harassment, don’t confuse the claim by conflating it with “hostile environment” harassment. Too often, what should be quid-pro-quo claims are alleged as hostile environment claims, which is unnecessary and can lead to judges applying past legal standards which are not intended to govern these very simple claims.
If Alleging Hostile Environment, Be Sure the “Totality” of the Circumstances are Properly Alleged and Considered
If the claim is hostile environment harassment, be sure that you allege and present every incident, whether words or actions, which is part of the pattern of illegal conduct creating the hostile environment. Both the number of incidents and details about these incidents, including any witness or documentary support, is critical. It is extremely difficult to successfully allege a hostile environment claim based on very few incidents of alleged harassment, unless these few incidents can legally be considered sufficiently “severe” to create a hostile environment. Therefore, when you are relying on a small number of incidents, be sure the severity of these incidents is presented in sufficient detail, both in terms of the conduct itself and the immediate and lasting impact on your client.
When the court applies the law to this evidence, usually at the summary judgment stage, be sure you educate the judge that the standard is “severe OR pervasive” (not “and,” which is a surprisingly common mistake), and that the “totality” of the incidents must be considered, as well as their “cumulative effect” on your client. These application of these three standards can and should be influenced by the #MeToo and #TimesUp movements and the resulting growing societal awareness of the impact of sexual harassment.
For instance, the severe or pervasive standard is to be evaluated based on the “reasonable person” standard, which is intended to be an “objective” lens requiring the impact of the conduct to be assessed by the judge in terms of how a “reasonable person” would have reacted. This shouldn’t be a static, unchanging focus over time, but instead can and should evolve to now encompass the increased awareness about the devastating impact of harassment which these two movements have brought. If necessary, distinguish past negative precedent based on this growing understanding.
Insist on Appropriate Limits in Discovery
The defendant may seek broad discovery into every aspect of the plaintiff’s life, sexual past and medical/psychological history and treatment, ostensibly assert a defense that the alleged conduct was not “unwelcome” or that the plaintiff is mentally unstable and misperceived events to which no “reasonable person” would have objected. RESIST broad discovery in these areas. Responsible judges can and will place appropriate limits on this type of discovery, and ample precedent, evidentiary rules, and statutes (i.e. the Violence Against Women Act) support these limits.
Maximize Emotional Distress Damages at Trial
At trial, an individual subject to illegal harassment may recover for all emotional distress caused by this conduct. Contrary to the “reasonable person” standard which applies to assess liability evidence, the standard in assessing these damages is entirely subjective, and the maxim that “a tortfeasor takes their victim as they find them” fully applies to these damages. Therefore, if your client has any past or present mental health condition which caused the emotional harm to be exacerbated, this can and should be fully developed and assessed by the jury in this area. This can often result in significant compensatory damage verdicts.
Schaefer Halleen lawyers understand every aspect of prosecuting sexual harassment cases, and have vast experience in this sensitive area of the law. We are committed to doing everything we can to vindicate the rights of individuals subject to sexual harassment. We are available for a free consultation to assist you in determining whether you have been subject to harassment or retaliation in the workplace, and can develop a strategy for proving the case, usually on a contingent fee basis (i.e. you pay nothing for legal fees until a favorable result is achieved by settlement or judgment).
