Trial Magazine

In recent years, the prominence of the #MeToo movement has prompted survivors of sexual harassment and assault to be more open and comfortable coming forward to tell their stories. The culture of believing survivors also has improved drastically due to this movement and its lasting presence in our collective conscience. One result of #MeToo has been a positive and enduring impact on the nature and strength of sexual harassment litigation.¹

Plaintiff lawyers recognize the importance of taking a trauma-informed approach to working with clients who have been sexually harassed and assaulted. From intake to discovery to trial, working with clients who have experienced sexual violence and harassment requires not only empathy but also an understanding of the impact of trauma on a person’s memory, cognition, internalization, and blame.²

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The constant connectivity of today’s world makes employees who participate in social media particularly vulnerable to sexual misconduct, such as inappropriate online contact and even stalking.

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Harassment in Today’s Workplace

When I started practicing in this area over a decade ago, sexual harassment largely took predictable forms: inappropriate touching, offensive commentary in the office, and quid pro quo harassment. These still happen all the time, but now there are additional avenues harassment takes, including social media. The constant connectivity of today’s world makes employees who participate in social media particularly vulnerable to sexual misconduct such as inappropriate online contact and even stalking. For example, one of my recent cases involved not only inappropriate touching in the workplace but also explicit sexual advances through direct messaging on Instagram and Snapchat.

The concept of “grooming”—when a person in power develops a relationship, trust, and emotional connection with another for the purpose of manipulating and abusing them—is also increasingly recognized as a form of sexual exploitation. While more often discussed in connection with the sexual abuse of minors, the workplace is ripe with power imbalances and also provides a fertile ground for grooming. Grooming can give rise to sexual harassment claims, particularly when it appears that the terms of employment are conditioned on submitting to the sexual grooming.³ This form of manipulation often goes unrecognized by the victim, but when the individual finally speaks up, the harasser may continue the pattern of abuse by gaslighting the person.

Most people envision traditional gender norms for sexual misconduct—primarily men harassing women. However, it is imperative to accept the reality that any gender can harass any gender, regardless of sexual orientation or identification. On a national scale, members of the LGBTQ community are, for example, among the most susceptible to harassment and, additionally, to having their complaints of harassment disregarded by their employers.⁴

In certain ways, sexual harassment has been further exposed by the COVID-19 pandemic. While the number of sexual harassment charges at the Equal Employment Opportunity Commission (EEOC) decreased between 2019 and 2020, the number of charges resolved on the merits increased, and the percentage of EEOC findings in favor of the complainant increased.⁵

The reasons for this are two-fold. First, many employees who have been harassed in the workplace had long written it off as ordinary, acceptable behavior or were overcome by the fear of retaliation such that they deliberately decided not to complain about the conduct. However, after the pandemic caused many to work from home, either temporarily or permanently, many employees are more cognizant of misconduct and also less fearful of retaliation. Now, employees are heading back into the workplace, where they could face harassers—including those whom they have reported—anew.

Second, despite it seeming impossible, sexual harassment has persisted in the virtual workplace, taking on new shapes and forms. For example, people have used messaging services such as Slack and Teams to make inappropriate comments, asked improper questions about a supervisee’s sex life via Zoom while waiting for other participants to join, and even been caught performing sexual acts during work teleconferences.

This may be because “the informality of working from home encourages this type of behavior that’s anything but professional.”⁶ In addition, harassers have taken advantage of technology or low staffing in workplaces. The long and short of this is that where there is a will—and sexual predators in the workplace certainly have a will—there is a way.

Working With Survivors

In any sexual harassment claim, perhaps the most crucial consideration at intake is the severity of the conduct. Assessing severity can be tricky because misconduct often is more subtle in today’s world but still has long-term effects on the victim. Starting at intake, taking a trauma-informed approach to the client will help you unveil many of these latent harms.⁷

Due to the trauma caused by sexual harassment, many survivors cannot readily comprehend or articulate their damages. PTSD also can prevent clients from accurately and fully conveying the harm they’ve experienced. For this reason, find out early in the case what mental health treatment your client has received and talk with mental health care providers.

Also ask your client certain questions to assess damages based on common symptoms described in the medical literature.⁸ For example, some of my clients have limited access to mental health care due to the cost. So, I often gather my own information by asking about symptoms of depressive disorders (mood changes, hopelessness, appetite changes, fatigue); anxiety (nervousness, panic, increased heart rate, sweaty palms, rapid breathing); sleep deprivation (trouble sleeping, racing thoughts, slow cognition, worsened memory, reduced attention span); and heightened blood pressure.⁹ Each of these can manifest from the trauma of sexual harassment. Many of these symptoms indicate a need for mental health care, and the client should seek out the care necessary to deal with the long-term effects of the trauma.

Think Through Potential Claims

You should still bring many of the standard claims, such as Title VII claims, when representing a client who has experienced workplace harassment. These claims, however, can be limiting both in terms of timing¹⁰ and damages.¹¹ Typically there are accompanying state law claims—such as negligent hiring, retention, and supervision; negligent or intentional infliction of emotional distress; or corporate negligence—that may not be subject to damages caps.¹²

In extreme situations, sexual harassment is so traumatic that it results in self harm, giving rise to additional damages or, in the case of suicide, a wrongful death claim.¹³ In addition, many peripheral claims, such as retaliation or defamation, may arise from the employer’s response to the sexual harassment. And intentional tort claims—such as assault and battery—can also pull the harasser into the litigation directly.

Developing the Evidence

Developing the evidence to support damages—including information probative of punitive damages, such as the extent of misconduct and the employer’s knowledge of repeated offenses—is critical. Start by sending your client’s employer a letter of representation requesting preservation of evidence. This letter should include items specific to the harasser; for example, their personnel file, any background check performed, any prior complaints of harassment against the employee, and any prior disciplinary measures taken by the employer against the harasser.

In addition to asking the employer to preserve evidence, including emails and electronic materials on company property, also demand that the employer instruct the harasser to preserve personal text messages, social media accounts, photographs, recordings, and emails.

Do not cabin your inquiry to your own client. Most sexual harassers are repeat players, meaning there are probably other victims.¹⁴ Asking your clients is a good place to start this investigation, but they may not know about others who have been harassed. Go beyond requesting the harasser’s personnel file and ask the employer for the names of others who worked closely with the harasser. Obtain information on former employees within the department who left the company during the relevant time frame, as well as any text or social media contact between the harasser and other employees similar in age and gender to your client.

Run a background check on the harasser.¹⁵ Find out where the harasser previously worked and go digging there. You will be surprised what you might find, and it could give rise to additional claims against the employer, such as negligent hiring or retention.

Employer notice—showing that the employer “knew or should have known”—is a critical piece of employer liability under Title VII and for negligence claims.¹⁶ There are ways to demonstrate this even if your client or other victims did not complain outright to the employer. I recommend getting information from employers’ anonymous tip lines—these often are not properly monitored but can provide a treasure trove of overlooked complaints.

If the harasser is a manager, the standard is slightly different—the employer’s knowledge is typically presumed when a supervisor has harassed a supervisee.¹⁷ Often, other employees either witnessed openly harassing conduct or suspected that it occurred. Other times, emails or text messages may exist that indicate the employer knew. Even public social media comments may give rise to employer notice.¹⁸

When interviewing employees or deposing management, pose your questions in many different ways and many different contexts. Ask hypothetical questions to create analogous fact patterns. Have they ever seen the harasser do anything they believe was inappropriate? Also ask about other employees the same sex as your client with whom the harasser worked regularly. It is very difficult for a harasser to operate in the workplace with full secrecy, so be skeptical of any claim that the employer did not know.

A Client-Focused Approach to Resolution

From the beginning of the case—and certainly once you get to the point of discussing resolution—talk to your client about goals. Every sexual harassment client is different, and their goals can vary widely. Some clients want defendants to be held publicly accountable regardless of the personal toll, while others might prefer private resolution.

In most cases, obtaining monetary damages will help hold the culpable parties accountable for past harm and also cover the future mental health treatment clients require to move forward. This can be accomplished through settlement or trial, though many clients do not want to go through the public toll of trial—it requires that they publicly relive the trauma and its personal mental health impacts.

Settlement, however, can offer your client an opportunity for nonmonetary remedies that are not attainable through trial. As in other employment cases, the defendant employer may agree to a mutual non-disparagement clause in the settlement agreement and to provide positive or neutral references. Sexual harassment cases also create a unique opportunity to incite positive change. Talk to your client about whether they want to see institutional, training, or policy changes—and what those might look like.

For example, in some of my cases we brought in a mutually agreed on team to provide a day of current, in-depth sexual harassment training and required regular updates. In another case I handled, the settlement agreement involved a rewritten sexual harassment policy that had to be distributed and signed by every employee. Monetary relief may help your clients afford the mental health care they need, but this equitable relief can give another kind of closure: the belief that they will be the last victim of this employer.

However, if confidentiality is important to your client—and it almost certainly will be to the employer—then private resolution offers a chance for a collective solution. Though this option will not hold the employer publicly accountable, the decision is up to your client and may better suit the client’s comfort level than a public admonition of the employer. But if public accountability is important to your client, then this can be a nonstarter.

Five years after the explosion of #MeToo and over two years after the start of a global pandemic that drove many to remote work, sexual harassment in the workplace remains very much alive. The approach we take to these cases should be dogged but also trauma-informed. This is far from over—and we, as attorneys, must keep believing survivors and standing with them.

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Landmark Legislative Progress

In March, Congress passed the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act (Pub. L. 117-90), restoring the rights of sexual assault and harassment survivors to hold their perpetrators and the corporations that enable abuse accountable in court. The act, which passed with broad bipartisan support and was signed into law by President Biden, provides that predispute arbitration agreements and predispute joint action waivers (which includes collective and class actions) are unenforceable in sexual assault and sexual harassment disputes. This law is the culmination of years of work by AAJ, plaintiff attorneys and their clients, and countless other survivors who were brave enough to tell their stories.

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Cate Edwards is a founder of Edwards Beightol in Raleigh, N.C., and can be reached at cee@eblaw.com.

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Notes

1. Stephanie A. Sandler & Jessica K. Pride, Handling Workplace Sexual Harassment Cases, Trial, Jan. 2019, at 44 (discussing practical tips on litigating these claims in the wake of #MeToo).
2. See Sandra Krause & Adam S. Radomsky, “Was I Asking for It”: An Experimental Investigation of Perceived Responsibility, Mental Contamination and Workplace Sexual Harassment, J. of Behavior Therapy & Experimental Psych., June 2021.
3. See, e.g., McQueen v. Northrop Grumman Sys. Corp., 2021 WL 3164855, at *8 (D. Kan. July 27, 2021).
4. Brad Sears et al., LGBT People’s Experiences of Workplace Discrimination and Harassment, UCLA School of Law Williams Inst., Sept. 2021, at 2–5, https://tinyurl.com/3afch4y4.
5. Equal Emp’t Opportunity Comm., Charges Alleging Sex-Based Harassment, https://tinyurl.com/yc67nesj.
6. Kim Elsesser, COVID’s Impact on Sexual Harassment, Forbes, Dec. 21, 2020, https://tinyurl.com/f954z8u7.
7. As a starting resource, I recommend that attorneys and their staff take the webinars developed by the National Women’s Law Center: Trauma 101, https://nwlc.org/resource/webinar-trauma-101/; Trauma-Informed Legal Advocacy, https://nwlc.org/resource/webinar-trauma-informed-legal-advocacy/. See also James Marsh & Margaret Mabie, Trauma-Informed Advocacy, Trial, Aug. 2022, at 38.
8. See, e.g., Shawn Meghan Burn, The Psychology of Sexual Harassment, 46 Teaching of Psychol. 96 (Dec. 16, 2018) (culling several relevant texts). There are many additional sources for medical literature depending on the specifics of the harassment and the nature of your client. Look for fact-specific resources on UpToDate, the Cochran Database, and JAMA, or in other psychology texts.
9. See, e.g., Rebecca C. Thurston et al., Association of Sexual Harassment and Sexual Assault With Midlife Women’s Mental and Physical Health, JAMA Internal Med., Jan. 2019, https://tinyurl.com/5xmmc9n2.
10. 42 U.S.C.A. §2000e–5(e)(1) (2009) (claims must be filed with the EEOC within 180 days or 300 days, depending on the state, and administratively exhausted before being filed in court); see also  Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
11. 42 U.S.C. §1981a(b)(3) (1991) (setting caps between $50,000 and $300,000 for compensatory damages and punitive damages combined under Title VII, depending on the size of the company).
12. See, e.g., Styka v. My Merchants Servs. LLC, 2016 WL 11396819, at *6 (E.D.N.Y. Mar. 15, 2016), report and recommendation adopted, 2016 WL 3866550, at *4 (E.D.N.Y. July 13, 2016) (awarding punitive damages under state law, which had no caps, instead of Title VII, for which the cap had already been exceeded); Torres v. Caribbean Forms Mfr., 286 F. Supp. 2d 209, 217–18 (D.P.R. 2003), aff’d and remanded sub nom. Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 66 (1st Cir. 2005) (Title VII statutory cap did not limit damages that could be granted to employee under Puerto Rico law).
13. See, e.g., Skelton v. Davidson Hotels, LLC, 2020 WL 6875503 (D. Minn. 2018) (bringing claims for wrongful death due to suicide incited by severe PTSD based on sexual harassment in the workplace); Moynihan v. Activision Publishing, Inc., No. 22STCV07890 (Cal. Sup. Ct. Los Angeles Cty. Mar. 3, 2022) (same).
14. Ellen Hendrikson, Four Psychological Traits of Sexual Harassers: What Traits Make Someone Prone to Harassing Others?, Psychol. Today, Nov. 9, 2017, https://tinyurl.com/2cm4b6u3.
15. You can run a background check online through the FBI or your state bureau of investigation or by using private online services such as Intelius. You can also have a private investigator perform the background check.
16. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (“Congress wanted courts to look to agency principles for guidance” as to whether the employer must have knowledge of conduct to be liable.); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1023–24 (7th Cir. 1997) (“Based on Meritor’s directive to look to agency principles, this court adopted the ‘knew or should have known’ standard for liability under Title VII.”); Fleenor v. Hewitt Soap Co., 81 F.3d 48, 50 (6th Cir. 1996) (“the standard is whether the company failed to correct after notice or ‘knew or should have known of the charged sexual harassment and failed to implement prompt and appropriate corrective action’”).
17. It is worth noting that, while knowledge is implied when supervisors harass an employee they supervise, the employer has an Ellerth/Faragher affirmative defense available to circumvent the imposition of vicarious liability. See  Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998).
18. See  La Porta v. Alacra, Inc., 142 A.D.3d 851, 853 (N.Y. App. Div. 2016).