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Mounting a Successful Sexual Harassment Case

According to the law, what evidence is necessary to prove sexual harassment?

Prior to the Supreme Court’s decisions in Burlington Indus., Inc. v. Ellerth, 118 S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118 S. Ct. 2257 (1998), the federal courts as well as the EEOC categorized sexual harassment is either (1) “quid pro quo" where a supervisor seeks sexual favors in return for the Gaynor threatened loss of employment or some tangible aspect of employment; or (2) sexually hostile work environment where the unwelcome conduct of a sexual nature is sufficiently pervasive or severe as to alter the conditions of employment. The elements of these actions were as follows: 1. the employee belongs to a protected group; 2. That the employee was subject to an unwelcome sexual-harassment; 3. The harassment complained of was based upon sex; 4. The employee’ acceptance or rejection affected tangible aspects of employees compensation, terms, conditions or privileges of employment. In the Ellerth case, the Supreme Court clarified that in a quid pro quo claim, the essence of the merits of the claim may turn on whether a “tangible employment action" was at stake. Normally, such actions would include things such as the hiring, firing, failing to promote, reassignment with significantly change duties or any other change of employment conditions that could result in a loss of income or benefits. Therefore, in proving a quid pro quo type claim, the plaintiff must show not only were unwelcome sexual advances made or threatened but that based upon the reaction, the plaintiff could be denied tangible employment benefits. Further, plaintiff now needs to show is the supervisor in fact, carryout this threat by taking a tangible employment action and as a result the plaintiff suffered a change in their employment conditions.

With regard to the sexually hostile environment, the plaintiffs can establish a prima facie case through evidence that (1) the alleged conduct was unwelcome; (2) that the conduct was based upon the plaintiff’s gender; (3) the conduct was sufficiently pervasive or severe so as to alter the working conditions creating and abusive work environment; and (4) that there was some factual basis in which to impute responsibility for this conduct to the employer.

  1. What documentation should the victim attain?

And documenting any claim of either quid pro quo sexual harassment or a sexually hostile environment, the plaintiff can do so through witness testimony and through documentation that may include contemporaneous notes, photographs, legal recordings, and through the plaintiff's own testimony. In counseling potential plaintiffs, I often advise them to buy small notebook in which to record any events including witness information that could be alleged as harassing behavior. Given the fact that most persons now possess smart phones that can record both sound and video, such phones can act literally as witnesses to events as they occur. It also makes it possible for the client to make contemporaneous notes of events. Should there be actual documents such as photographs, calendars, posters or other documentary material that would support claims of a hostile environment, the client maybe counseled to collect such documentation so long as they are not violating any employer policies and rules with regard to taking such materials. It is not unusual for employers to argue that documentary material obtained without the permission of the employer is not only inadmissible, but may in and of itself, constitute evidence that an employee has violated and employer rule regarding confidentiality of materials.

  1. Are witnesses always necessary?

Oftentimes, attorneys believe the claims of sexual harassment may not be brought when there are no witnesses other than the plaintiff to corroborate such allegations. Some years ago, a young woman who had brought into my office a potential plaintiff alleging handicap discrimination, quietly asked if she could talk to me after I finished interviewing her friend. I agreed and she quietly told me a story that was almost unbelievable. She stated that she had been working for a high-level executive at a large company who had been sexually harassing her in the progressive fashion. He first started by rubbing her shoulders claiming he was giving her a little massage. From there he progressed gradually forward. One evening while working late, yesterday come up to her at his office. When she entered, he closed the door behind her and had himself fully exposed and erect. He grabbed her head forcing her to have oral sex after which he ran from his office and threw up in the bathroom downstairs. She was too embarrassed to ever come back to work and gave her two weeks notice. She had gone to see a lawyer who advised her that she had no case because it was her word against his. Even worse, he told her she would not be eligible for unemployment benefits because she had quit her job. Suffice it to say, she ultimately received a significant settlement agreement and the executive was terminated.

The critical element in that case was the believability of my client. I let the opposing counsel question her without interruption and without a formal deposition. While it often difficult to prosecute a sexual harassment case without a corroborating witness, each case is different and must be judged on its own facts. It is not unusual to find corroborating facts or circumstances other than witness testimony but in those cases is essential 1 do a thorough fact investigation to ensure that the totality of the facts do not contradict your client's allegations.

What are the essential features of a sound sexual harassment case?

In assessing whether or not to take on a sexual harassment case for a plaintiff, certain features are essential. Perhaps the most important factor in the case is the “outrage" factor. Do the facts shock you or grab you by the throat? Is there something unusual either about the plaintiff, the defendant or the events that have been described? If so, then it is important to delve further to ascertain whether this case is worth time effort and money that will be required to see it through to its conclusion. Ultimately, a case without economic loss of any kind, regardless of the outrageousness of the acts described, may not be worth the effort. Judges and juries tend to gauge damages in relation to those that they can accurately measure such as lost wages. The following an outrageous act causing the plaintiff to quit her job, she finds a job following day paying more, it will not be a case worth pursuing.

Probably more important then the other type of case is the credibility of your client and whether or not all the facts and circumstances that you are able to determine, seemed consistent with the events described.

  1. Why are these important?

Sexual harassment cases are unlike any other cases that you may handle. There are many times that a potential client has asserted horrific allegations against their employer. When I have occasionally responded with incredulity, it is not unusual to hear, “Don't worry, they will settle because they don't want to let those facts get out." It is not unusual for people to believe that sexual harassment cases do settle quickly because people do not want their reputations tarnished or questioned. I have found the opposite to be true that defendants often fight sexual harassment allegations more fiercely than any other type of discrimination claim. It is precisely for the same reason that people think these cases will settle quickly, reputation. Anyone who has spent a lifetime climbing a career ladder will generally fight any such allegations and will refuse to settle at any price do to the nature of the claim.

  1. Do you ever encourage clients to sue if their cases lack some of these features?

As noted by my earlier answer regarding the woman who did not have a corroborating witness, the answer is yes but very infrequently. There are cases where one of the elements needed is so strong as to outweigh the lack of proof as to all the others. Thus, where the plaintiff may have suffered extraordinary damages, where the facts alleged are so outrageous, where the plaintiff involved is so credible, the attorney might overlook other deficiencies

  1. If so, what other compelling features should the case have?

Each and every possible sexual-harassment claim must be viewed on a case-by-case basis looking at the totality of all of the circumstances. There may be factors that would leave the attorney to believe that the defendants would rather quickly settle is such a quick settlement is possible. Is often difficult the forecast how an employer will respond to allegations of sexual harassment us making it necessary, in every single case to step into the shoes of that employer. Just as there are many reasons but I might argue against prosecuting even clear cases of sexual harassment, there is just as many reasons that I might encourage a defendant to consider when deciding how vigorously to defend the claim. There is a significant price to be paid by both the plaintiff and the defendant in each and every single sexual harassment claim and the smart attorney will have assessed case from both sides the table.

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See the full version of this chapter in a West Reuters -Effective strategies for mounting a Sexual Harassment case

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