Trial Magazine

Since the emergence of the #MeToo movement, more people have been coming forward when they are sexually harassed or assaulted in the workplace. But litigating these cases involves a unique and intimate violation of trust that other employment-based causes of action may not necessarily implicate, so you must approach the client with a great deal of empathy, conduct an extensive investigation before agreeing to pursue litigation, and prepare the client for the rigors of discovery.

Vet the Case Thoroughly

Before agreeing to take a case, do a very detailed fact-based analysis. Case evaluation can be difficult because when the potential client describes a horrendous work environment, it can be hard not to automatically side with him or her. However, it is crucial to remain objective when determining whether a legally viable claim exists.

Empathy is key. Build rapport with the potential client so that he or she is comfortable telling you all of the facts. For example, suppose a potential client says, “I’ve worked at this company for 10 years, and I have never had a boss massage my shoulders before. It felt so gross.” A good response may be: “I’m sorry that your boss made you feel uncomfortable at work, especially since you have invested so much time in the company.” This shows the potential client not only that you were listening but also that you are on his or her side.

Evaluate existing evidence. Ask the potential client for any tangible evidence such as emails, text messages, or social media interactions with the alleged perpetrator to support the allegations. Request to see this before you decide whether to represent the employee. Compare the evidence that the employee presents to you about the case with the tone/body language/demeanor of the employee, generally. Ask if anybody—coworkers or other supervisors—witnessed the harassment and if they would sign a declaration to that effect.

Also find out whether a sexual harassment policy existed, whether the client read it or signed a document acknowledging that he or she read the policy, and whether the client followed the company’s sexual harassment reporting procedures. Was the employee demoted or given a reduced work schedule or workload due to reporting the sexual harassment? If the client alleges that an adverse employment action is connected to reporting the sexual harassment, then the defense may argue that such action was unrelated. To prepare for this, ask about any history of write-ups or disciplinary action that the employer may use to justify a demotion or reduced hours.

End the call or meeting on an empathetic note—even if you decline the case or if the potential client has not provided enough information. Remember, it is difficult for people to expose their vulnerability to complete strangers, so reiterate that his or her feelings are valid, even if no legally actionable claim is possible. You also can suggest getting a second opinion.

Investigate the Company

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion, and it protects employees in all 50 states from sexual harassment. However, an employee can sue under Title VII only if the employer has 15 or more employees.¹ Unfortunately, many people work in small businesses, so check your jurisdiction’s sexual harassment laws, which still may allow a claim. For example, Arizona, California, Illinois, and New York’s sexual harassment laws apply to all employers with one or more employees.² In Florida, however, these protections basically mirror Title VII and apply only when the employer has 15 or more employees.³ Other states such as Alabama and Georgia have no state antidiscrimination law, so the federal minimum of 15 employees applies.⁴

Once the threshold issue of the number of employees is satisfied, investigate whether the company—and the specific person accused of harassment—has a history of sexual harassment.⁵ Perform a legal search of the company and the alleged perpetrator. Start with Google and Facebook. Find out how they hold themselves out publicly. Through Google, you may discover that the company previously settled a claim with another employee. This happened in one of our cases, and it helped with settlement negotiations. You can also perform a records search on the local court’s website where you would file to see if the company has been sued before. Harassers often target more than one person, and companies may not realize that until it’s too late.

Anticipate likely defenses. Make sure to consider any potential defenses the employer may assert. For instance, it may use the Faragher-Ellerth defense if no tangible employment action was taken against the plaintiff (e.g., no discharge, demotion, or undesirable reassignment); the employer exercised reasonable care to prevent and promptly correct the harassing behavior (e.g., a harassment policy demonstrates -reasonable care to prevent harassing behavior); and the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm (e.g., not taking advantage of reporting procedures outlined in an anti-harassment policy).⁶

The liability analysis changes depending on whether the bad actor is a supervisor or a coworker. Strict liability for sexual harassment only applies when a supervisor sexually harasses a subordinate.⁷ Otherwise, if the perpetrator is a coworker, the employer has an opportunity to immediately and appropriately correct the sexual harassment before liability attaches.

The U.S. Supreme Court has held that only employees who have the authority to hire and fire are “supervisors” for the purpose of holding an employer directly liable for harassment under Title VII.⁸ But check the relevant state law, which may differ on who is considered a supervisor. For example, in California, a supervisor can be a person who has the authority to hire or fire or direct the work activities of others.⁹

Third-party sexual harassment. Also consider whether the company is liable for sexual harassment when the perpetrator is not an employee but a third party. For example, a housekeeper who had worked at a hotel for 30 years was raped on the job.¹⁰ The perpetrator sexually harassed two other housekeepers on the premises the same day before he trapped the housekeeper in a hotel room. This scenario typically falls under workers’ compensation as a “workplace injury,” but the appellate court held that California’s Fair Employment and Housing Act imparts liability on employers whenever the employer knows or should know of sexual harassment by anyone, including a nonemployee, and fails to take immediate and appropriate remedial action within its control.¹¹

Although California is unique in that state law protects employees against third-party harassment,¹² all states protect employees against third-party harassment under Title VII.¹³

For example, a female lobby attendant in a New York City office building was required to wear a uniform that was both too short and open on the sides. While wearing the uniform, she received numerous sexual propositions and endured lewd comments and gestures. The court held the employer “knowingly allowed [plaintiff], a female employee, to remain, as a condition of her employment, in a position where she would be subjected to sexual harassment on the job.”¹⁴ The court further held that by requiring her to wear the revealing uniform, the defendants “made her acquiescence in sexual harassment by the public, and perhaps by building tenants, a prerequisite of her employment as a lobby attendant.”¹⁵

Potential damages. Determine whether the company has Employment Practices Liability Insurance (EPLI). Most companies have EPLI insurance, but sometimes small companies do not. Ask opposing counsel during informal discussions or make a formal request during discovery. EPLI policies have one big pitfall: Defense expenses count toward the total liability limit on an EPLI policy, so remain cognizant of that fact throughout the case.¹⁶

And some states—California, Florida, New York, and Ohio, for example—prohibit or restrict coverage for punitive damages or intentional acts, or both.¹⁷ In those jurisdictions, you may need to rely on careful pleading to show that the employer’s negligence rather than the intentional conduct of the harasser caused the sexual harassment to occur. In your complaint you would allege a negligent hiring, retention, and supervision claim against the employer.

Prepare the Client for Discovery

Once you have evaluated the company and the client’s claims and decided to take the case, it is crucial to prepare the client for discovery. For clients bringing sexual harassment claims, discovery often is the most brutal part of the process because the defense often asks them personal and intrusive questions, which may leave them feeling attacked and disheartened. Some clients may become angry, shut down, or stop returning phone calls and emails once discovery requests come in, clamming up at the prospect of answering countless personal questions.

It is critical to mentally prepare your client for discovery before the complaint is even filed. For example, at the initial client meeting, some attorneys provide a model set of interrogatories along with the intake sheet. At that point, some potential clients may decide not to move forward, and some will provide answers to the questions—putting you one step ahead of the discovery process.

Another strategy is to explain the entire litigation process, from filing the complaint to going to trial. Many clients may be unfamiliar with the process—and this is particularly true of discovery. Emphasize that discovery serves as a tool to determine what type of evidence each side has. Explain what a deposition is, as well as the kinds of questions the client will need to answer. But above all else, reassure the client that discovery is not one-sided and that the client will receive important information too.

Obtain Witness Declarations Early

Sexual harassment claims—particularly hostile work environment claims—may be won or lost on witness declarations. Harassers typically have a pattern and practice that has allowed them to get away with their conduct. They also often target multiple people. But even if they do not, witnesses bolster your client’s claims so it’s not just your client’s word against the perpetrator’s word. It is important to obtain any witness declarations early to ensure unbiased and accurate testimony before the possibility of the employer or perpetrator contacting or intimidating the witness.

Obtaining declarations may also aid in early settlement negotiations. The more evidence you can show to reinforce your client’s claims and highlight the employer’s liability, the more likely it is that defense counsel will agree quickly to a settlement. This may be particularly beneficial to a client who may have suffered adverse employment actions, such as a demotion or reduced work hours. Declarations also help eliminate the need for lengthy depositions because defense counsel will already know the contents of the witness’s testimony.

However, tread cautiously. Some states such as California, the District of Columbia, and Massachusetts, have strict professional responsibility rules for communicating with current employees.¹⁸ Before contacting an employee to obtain a declaration, review your state’s ethics rules.

Care for the Client

Litigation is taxing on everyone, and it is vital for clients bringing sexual harassment claims to care for their mental health. For clients who are not seeing a therapist, it might be helpful to explain that many people see a therapist for many reasons—and that a therapist simply provides extra emotional support beyond friends and family during this long process. However, caution your client that what he or she tells a therapist has implications. If, for example, the client claims emotional distress damages stemming from the sexual harassment, defense counsel will be entitled to the client’s mental health records.

For example, in EEOC v. Danka Industries, Inc., the EEOC and employees brought a sexual harassment action under Title VII alleging that a supervisor had verbally and physically sexually harassed employees.¹⁹ The court observed that other courts have found waiver of the [psychotherapist-patient] privilege when the patient’s mental condition is made an issue in the litigation, which was the case when the plaintiffs included a Title VII emotional distress claim.²⁰ Warn your client that if he or she discusses other issues with the therapist, defense counsel may use it to assert that the client’s emotional distress stemmed from something other than the sexual harassment.

The #MeToo movmenet is about more than just holding harassers accountable—it also serves as a collective consciousness showing victims of sexual harassment that they are not alone.

The #MeToo movement is about more than just holding harassers accountable—it also serves as a collective consciousness showing victims of sexual harassment that they are not alone. And as attorneys, our support and help are vital. We must provide not only an avenue for justice but also ensure that victims become survivors.

Stephanie A. Sandler is an associate and Jessica K. Pride is a partner at The Pride Law Firm in San Diego. They can be reached at ssandler@pridelawfirm.com and jpride@pridelawfirm.com.

Notes

1. 42 U.S.C. §2000e(b).
2. Ariz. Rev. Stat. §§41-1463–41-1468 (West 2018); Cal. Gov’t Code §12940 (West 2018); 775 Ill. Comp. Stat. 5/1-102 (West 2018); N.Y. Exec. Rights Law §296.1 (West 2018).
3. Fla. Stat. §760.02(7), §760.10 (West 2018).
4. See Nat’l Conference of State Legislatures, State Laws on Employment-Related Discrimination, www.ncsl.org/research/labor-and-employment/discrimination-employment.aspx.
5. If this threshold is not met, you can explore common law causes of action such as assault, battery, and intentional infliction of emotional distress.
6. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
7. Id.
8. Vance v. Ball State Univ., 570 U.S. 421 (2013).
9. Cal. Gov’t Code §12926(t).
10. M.F. v. Pacific Pearl Hotel Mgmt. LLC, 224 Cal. Rptr. 3d 542 (Cal. Ct. App. 2017).
11. Id. at 701. Cal. Gov’t Code §12940(j)(1)) (West 2018). 
12. “An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns, or volunteers, or person providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.” Cal. Govt. Code §12940(j).
13. 29 C.F.R. §1604.11(e); see also U.S. Equal Emp. Opportunity Comm’n, Harassment, www.eeoc.gov/laws/types/harassment.cfm. 
14. EEOC v. Sage Realty Corp., 507 F. Supp. 599, 609 (S.D.N.Y. 1981); see also Gardner v. CLC of Pascagoula, LLC, 894 F.3d 654, 663–64 (5th Cir. 2018); Anania v. Daubenspeck Chiropractic, 718 N.E.2d 480 (Ohio Ct. App. 1998).
15. EEOC, 507 F. Supp. at 609.
16. See Stephanie Gironda, An Overview of Employment Practices Liability Insurance and Practical Considerations From a Plaintiff’s Perspective, American Bar Association Employment Rights Committee Winter Meeting 4 (March 2013), www.americanbar.org/content/dam/aba/events/labor_law/2013/03/employment_rightsresponsibilitiescommitteemidwintermeeting/22_gironda.authcheckdam.pdf.
17. Richard S. Betterley, Employment Practices Liability Insurance Market Survey 2015: Joint Employer Exposures Concern Insurers, Betterley Risks Consultants, Inc. 10 (Dec. 2015), http://betterley.com/samples/EPLI15_nt.pdf.
18. Cal. Rules of Prof’l Conduct R. 2-100 (1992); D.C. Rules of Prof’l Conduct R. 4.2 (2007); Mass. Rules of Prof’l Conduct R. 4.2 (2015).
19. 990 F. Supp. 1138 (E.D. Mo. 1997).
20. Id. at 1142 (citing Vann v. Lone Star Steakhouse & Saloon of Springfield, Inc., 976 F. Supp. 346, 349–50 (C.D. Ill. 1997), and Sarko v. Penn-Del Directory Co., 170 F.R.D. 127 (E.D. Pa. 1997))