Helping Victims Hold Employers Accountable for Workplace Sexual Harassment
All employees have the right to conduct their business in a sexual harassment-free workspace. State and federal laws prohibit harassment that creates a hostile work environment or requires sexual favors in exchange for preferential treatment (or to avoid detrimental treatment). If you believe that someone may have sexually harassed you in the workplace, please call (800) 652-6137 today to schedule your free consultation at Winer, Burritt & Scott, LLP. Our experienced sexual harassment attorneys help victims across Solano, Fairfield, and Napa enforce their legal rights.
The Different Types of Sexual Harassment
Sexual harassment generally falls into two broad categories: quid pro quo and hostile work environment. Quid pro quo (which literally translates as “this for that”) occurs when a supervisor requires a subordinate to engage in sexual activities to gain preferential treatment or avoid unfavorable treatment. For example, the supervisor may threaten to demote the worker, change working hours, reduce pay, or limit other benefits of employment.
Decades of sexual harassment legislation and lawsuits have made explicit quid pro quo sexual harassment increasingly rare, either as a threat or as a blatant exchange for preferences. Many cases now fall under the other type of sexual harassment.
A hostile work environment is created by unwelcome comments, gestures, drawings, or other actions of a sexual nature. To make them legally actionable under a hostile work environment claim, perpetrators generally must engage in severe or pervasive actions. The law measures them against the standard of what a reasonable person would find hostile or abusive.
To determine whether the conduct rises to an objectively unreasonable severe and pervasive level, courts must examine many factors. The U.S. Supreme Court in 1993 identified some of these factors in Harris v. Forklift Systems. They included:
- The frequency and severity of the unwelcome and discriminatory conduct
- The effect on the employee’s psychological well-being
- Whether the conduct was physically threatening or humiliating (as opposed to offensive utterances)
- Whether the conduct unreasonably interfered with work performance
No single issue determines whether the conduct is objectively abusive. Rather, the court examines each of the factors to perform a “legal calculus” in which the evidence as a whole is weighed for or against a finding of an objectively abusive work environment.
The Challenges in Proving a Sexual Harassment Case
First of all, sexual harassment victims need to speak up in the face of unfair advantages that the company and perpetrator has over the victim. A victim of sexual harassment requires incredible courage to come forward. It can take a long time to build up the courage to file a complaint, either with human resources or in the courts. On the other hand, a perpetrator or company only needs to deny the allegations, and many people will believe the perpetrator, even when faced with proof. California law, however, recognizes this power imbalance and makes companies strictly liable for sexual harassment perpetrated by supervisors or officers of the company, even if the company didn’t know it was occurring at the time.
The standard of a work environment that an objectively reasonable person would find hostile and abusive is actually quite subjective. Different judges or juries could decide the same case differently. This can make a sexual harassment case difficult to prove.
The severity test is also a rigorous standard to meet. Because modern sexual harassment law is grounded in Title VII of the Civil Rights Act of 1964, claims are premised on whether a person experienced discrimination in the workplace as a result of gender. The Supreme Court has interpreted this to mean that an employer must make a hostile work environment so severe as to actually change the terms and conditions of employment.
In the 1998 case Faragher v. City of Boca Raton, the Court gave many examples of conduct that might prove offensive, but would not change the terms and conditions of employment. These include mere utterances of a racial or ethnic epithet, discourtesy or rudeness, racial insensitivity, simple teasing, offhand comments, and isolated incidents (unless extremely serious). This rigorous standard was intended to prevent Title VII from becoming a “general civility code.” The Supreme Court seems to have concerned itself with the inundation of federal courts by cases involving “one-off” incidents, or instances of single inappropriate jokes.
Despite the rigorous standards identified in Faragher, three separate courts ruled that the conduct to which Ms. Faragher was subjected was sufficiently severe as to alter the terms and conditions of her employment. She had suffered uninvited and offensive touching, lewd comments, and degrading discussions of women. One supervisor told her that he would never promote a woman. Another demanded that she date him or “clean toilets for a year.” Other female employees also reported suffering such behavior, all of which led to a finding by the federal District Court that the employer had created or tolerated an objectively hostile work environment.
When the city of Boca Raton appealed the decision, the Court of Appeals had “no trouble concluding that [the supervisors’] conduct was severe and pervasive enough to create an objectively abusive work environment.” The appellate court did, however, disagree that the supervisors’ conduct could leave the city vicariously liable for the actions of its employees. The issues were therefore submitted to the U.S. Supreme Court, which upheld the findings of an objectively hostile work environment as it dealt with the issue of vicarious liability.
So what does rise to the level of an objectively hostile work environment? Upon review of the controlling case law, certain patterns begin to emerge. The longer that offensive conduct persists, the more likely it will result in a finding of hostility. The same is true of the severity of the acts at issue. While a single off-color joke may prove insufficient, an incident of violent sexual assault more easily meets the standard. Physical actions (such as violence, intimidation, and other threatening acts) are generally treated more severely than offensive words. These patterns are simply part of a larger trend in the legal calculus that courts apply on a case-by-case basis.
In companies where a culture of sexual harassment or hostile work environments persist, women may try to fit into uncomfortable, and eventually untenable, situations or face retaliation—including termination. When these problems finally reach the breaking point and these women bring sexual harassment cases against their employers, the employers’ attorneys will try to turn the table on a female plaintiff, claiming that she “participated” in the sexual harassment and therefore “asked for” the sexual harassment she received. This is a particularly ugly defense that can place women in impossible positions.
No woman deserves sexual harassment or assault. Companies who face sexual harassment or hostile workplace lawsuits, however, often take the opposite position.
Another common problem in sexual harassment is the nature of the available evidence. If the case boils down to a “he said/she said” scenario, there is no certain way to know whether a jury will believe the victim or the employer. The more documentation a victim can create throughout the case, the stronger the evidence at trial.
Email has proven incredibly helpful in establishing a paper trail for modern sexual harassment claims. Now, victims can document that they submitted their complaints to company personnel (as well as proof of any response provided by the employer). Email can also help establish the frequency of offensive conduct. A victim who saved a series of emails to a human resources administrator complaining of ten different incidents in twelve days has compiled much stronger evidence than someone who presents vague testimony about frequent conduct or “many reports made.”
Text or instant messages can also prove the content of offensive communications. While many perpetrators may still make offensive remarks orally and without witnesses, technology has shifted many communications to digital mediums that victims can preserve and use to help prove their sexual harassment claims.
Unfortunately, many instances of sexual harassment are not easy to document. Victims, however, need not serve as private investigators. An experienced attorney can use many other tools to help victims prove their claims.
An Attorney Can Help Victims Overcome Evidentiary Challenges to Prove Their Cases
A seasoned sexual harassment attorney can help a victim get creative to prove a claim. Often, formal discovery requests (such as a request for production of documents or depositions of witnesses) are necessary to obtain the evidence a plaintiff needs. Some of this evidence may even require the protection of a court order to prevent the defendant from destroying it. For example, a plaintiff may seek an order at the beginning of the case that prohibits the employer from shredding any documents related to the reports of harassment. An employer who violates the order is then subject to fines, and more importantly, discovery sanctions, such as a presumption that all destroyed documents would have benefited the plaintiff.
Discovery orders can also allow a plaintiff to access evidence—surveillance footage, for example, or server logs showing emails between the victim and harasser. Most employers will not voluntarily surrender such information to an employee who asks for it. But victims can access these critical forms of evidence with a court order requiring the defendant to produce it.
Just as important as accessing evidence is knowing how to present it in a persuasive manner. An experienced attorney will know exactly which incidents will prove most offensive to a judge or jury. An attorney will also know how to present these incidents in the most persuasive manner that clearly establishes both the frequency and severity of the conduct at issue.
Attorneys can only learn these skills through experience. Working on many different sexual harassment cases will enable an attorney to learn how to most effectively present evidence in your case. Attorneys must do this in written briefs (which are academic in nature, and written to the court) and in oral arguments (which are more personal, because they are designed to appeal to the sensitivities of a jury that lacks formal legal training). The different audiences and different mediums require different persuasive strategies. These, too, are skills that an attorney can only learn with experience.
An attorney also must understand which legal strategies will best meet a client’s needs. A report to state or federal employment authorities may result in sanctions for the employer, but it will not automatically secure compensation for the victim. On the other hand, filing a lawsuit can result in private, confidential arbitration. Many victims oppose this practice, as it prevents them from telling their stories and protecting other victims from the same actions.
Some victims are only concerned with telling their stories. They may choose to work with activists and anti-harassment organizations to make public statements. While this important tool can promote social change, such statements can limit a victim’s access to compensation. In some cases, a victim may lose a claim entirely as a result of public statements made to reporters or on social media.
Both employer accountability and a victim’s access to compensation are important goals to carefully consider. An experienced attorney can help victims meet both of these goals. Carefully crafted public statements made at appropriate times can protect the victim’s legal claims from a defendant employer’s allegations that media coverage has compromised the integrity of the proceedings. An experienced attorney will know how best to carefully address these two goals throughout the course of a sexual harassment claim.
Finally, an experienced attorney can help identify all of the compensable losses that a victim has suffered. This can include emotional distress, medical or mental health bills related to the harassment, lost wages, lost employment opportunities, and other expenses related to the harassment.
Some victims may qualify to receive punitive damages. This compensation does not cover losses incurred by the victim, but rather punishes the defendant for especially egregious conduct. Courts use punitive damages to deter similar conduct from other defendants. In sexual harassment cases, egregious conduct might consist of attempts to silence the victim through threats, intimidation, or other tactics.
Aggressive Protection for the Legal Rights of Sexual Harassment Victims
Victims of sexual harassment need not suffer in silence. An experienced employment law attorney can help aggrieved workers assert their legal rights and protections. This not accesses the compensation that the law provides for victims of sexual harassment, it also prevents other innocent victims from suffering from the same offensive conduct.
If you are the victim of workplace harassment, call (800) 652-6137 today or contact us online to schedule your free consultation with an experienced sexual harassment attorney at Winer, Burritt & Scott, LLP. We fight hard to protect victims and hold harassers accountable for their illegal conduct.
**We do not represent perpetrators of sexual harassment or those who are accused of sexually harassing behavior.