Recognizing & Increasing The Value Of A Sexual Harassment Case

1. INTRODUCTION.

Sexual harassment cases have to be built. They do not land in your office with a substantial inherent value. Rarely will a sexual harassment victim have undergone a million dollar "trauma" and just as rarely will a potential plaintiff have a million dollar "injury." However, that is not to say that one cannot achieve a verdict or settlement in a sexual harassment case far in excess of a million dollars. It can be done; however, it requires several key factors being present and it requires the case to be worked up in a thoughtful, yet aggressive manner.

2. THE KEY FACTORS WHICH MUST BE PRESENT FOR PLAINTIFF TO ACHIEVE A SEVEN-FIGURE VERDICT IN A SEXUAL HARASSMENT CASE.

First of all, the defendant must be a large corporation with not only assets sufficient to pay a large verdict, but sufficient assets for a jury to make a large punitive damage award. Second, there usually needs to be some sort of systemic problem with sexual harassment within the large company. Third, there needs to be prior complaints against the perpetrator which were not appropriately addressed by the company. Fourth, there needs to be an inadequate human resource department which fails to protect the employees and fails to conduct proper investigations. And, finally, it is helpful if the company has a financial motive for keeping the perpetrator employed while not adequately handling the complaints of the victims.

If the above factors are present and the plaintiff is a credible witness who has endured either severe or pervasive sexual harassment, the case is worth pursuing and the case can potentially be built into a seven-figure case.

3. START WITH THE DEPOSITION OF THE HIGHEST RANKING OFFICER IN CHARGE OF DAY-TO-DAY OPERATIONS OF THE COMPANY.

A sexual harassment case will end up being an attack on the management of a company and/or the human resources department of the company. One of the key witnesses will be the highest ranking officer in the company with direct responsibility for operations under which the sexual harassment occurred. You want to take this person's deposition when he or she is as ill-prepared as possible. If you wait until the end of the case when all the documents have been produced and all the other witnesses have testified, the person who ultimately called the shots in the company can tailor his or her testimony to fit the testimony of the other witnesses. If, on the other hand, you take this witness's deposition right off the bat, he or she will undoubtedly deny that there were any significant problems within the company and deny knowledge of any prior complaints and state that everything in the subject investigation was done perfectly. Once you have this testimony pinned down, you can then take the deposition of current and former employees who will, hopefully, indicate that there were serious problems within the company regarding sexual harassment that this high ranking manager should have known about or did know about. Thus, the manager under attack will lose all credibility and you will be on your way to proving a punitive damage case.

4. DEMONSTRATE THE EXISTENCE OF A WEAK HUMAN RESOURCE DEPARTMENT.

Most large companies have human resource departments and most companies' sexual harassment policies call for human resources to handle the reporting and investigation of sexual harassment complaints. Thus, in most sexual harassment cases, the human resource department in on trial. If the company has an adequate sexual harassment policy and employees know how to report sexual harassment to human resources, and in fact report sexual harassment to human resources and the department performs an adequate investigation, then plaintiff will probably lose any sexual harassment case other than a strict liability case against a supervisor. However, thorough discovery will usually reveal that the human resource department of the company is not as good as it looks.

The reason why human resource departments are inadequate is simple. They do not make money for the company. Many companies have human resource departments only because an attorney advising the company regarding sexual harassment has told them to, and often very little of the human resource personnel time is spent on sexual harassment prevention, training and investigation.

More typically, human resource personnel are involved in recruitment or employee benefits. That portion of their job keeps them busy and they have little time to deal with personnel matters. Also, human resource departments are typically run by low level employees. This is a particularly significant factor because it makes the victimized employees fearful to report the acts of harassment to human resources. They feel that they will not be protected by human resource employees with no power within the company. Frequently employees with higher rankings within the company feel that they will be further degraded if they report the harassment to lower level employees. Thus, if they report at all, they report to management and a company who believes it has an adequate human resource department will also take virtually no time in training its managers on the subject of sexual harassment. Thus, once the employee reports to management, the report is almost always ignored or botched, or the victim is blamed for the harassment.

Therefore, during discovery you need to find out as much as possible about the human resource department. Find out the specifics of the amount and quality of training received by human resource personnel and find out what there rank is within the company.

5. HIRING A HUMAN RESOURCE EXPERT.

One of the keys to obtaining a good result in a sexual harassment case is hiring a human resource consultant who can help guide you through discovery and provide expert testimony toward the end of the litigation. A human resource expert will be able to tell you the type of training that human resource personnel should have and the type of sexual harassment policy the company should have. Further, the consultant will be able to inform you of the way proper complaint handling and investigation should take place and point to inadequacies in the way that the defendant set up its sexual harassment policy, disseminated its sexual harassment policy and handled its sexual harassment complaints.

When your human resource expert testifies, he or she will have reviewed all the documentation that you have obtained in the case and should be able to provide powerful testimony to help a jury understand how the company failed its employees.

6. TAKE THE DEPOSITIONS OF ALL OF THE CURRENT AND FORMER EMPLOYEES WHO HAD ANY KNOWLEDGE WHATSOEVER OF THE PLAINTIFF, THE PRIOR COMPLAINANTS AND THE PERPETRATOR.

A further key to building a sexual harassment case is to take the depositions of virtually every person who ever worked with the plaintiff, the perpetrator and people who made prior complaints of sexual harassment against the perpetrator. Although this may involve dozens of depositions, it is worth it. Invariably you will obtain contradiction between the testimony of upper management (see section 3) and the testimony of the many percipient witnesses.

This, like most portions of discovery in a sexual harassment case, is expensive and time consuming, but remember, with an appropriate CCP 998 demand, you will get your costs back and if you win the sexual harassment claim, you will be awarded fees.

Thus, the economics of a sexual harassment case are different than other personal injury cases or wrongful termination cases. The potential fee award can be a powerful settlement tool even in cases in which the defense will claim that the plaintiff has only a minimal injury. More and more courts are making fee awards in sexual harassment cases that exceed the actual verdict. Therefore, do not shy away from taking all of the necessary depositions.

7. BE RELENTLESS IN PURSUIT OF WRITTEN DISCOVERY.

There is an old adage that plaintiff's attorneys are not making money fighting discovery wars. This is not true in sexual harassment cases when, one, a discovery ruling could lead to key evidence that will greatly increase the value of the case, and if plaintiff wins the case, plaintiff's attorney will receive his/her fees. Any discovery that leads to evidence of notice or ratification is worth its weight in gold -- so do not let defendants avoid answering questions on these subjects.

8. RECOGNIZING THE VALUE OF THE CASE.

After you have successfully completed discovery, it is important to not underestimate the value of the case if everything has gone well.

If you have a multimillion dollar company and you believe that you will be able to prove that at least one person was sexually harassed by the perpetrator before your client and the defendant had knowledge of this fact, then you may very well have a multimillion dollar case. This is true even if your client does not have a substantial psychological injury and even if the sexual harassment itself was not extraordinarily traumatic. If you can establish notice and/or ratification and get to punitive damages, then a jury will be motivated to make a large award if you make the proper arguments.

9. THEMES FOR CLOSING ARGUMENT IN SEXUAL HARASSMENT CASES.

We will briefly mention a few of the themes which one can utilize during closing arguments in a sexual harassment case.

The first theme that should be utilized is that an out of control large corporation has failed to protect its employees who are dependent on the large corporation for protection.

A second theme can be that the corporation has decided to protect its big money maker-perpetrator at the expense of the victim.

A third theme could be that the company, in failing to have an adequate HR department made an economic decision to increase profits at the expense of safety. This is a very similar argument to one that is utilized by plaintiff's attorneys in product liability cases. The fact is that human resource departments do not make money for companies, so they are underfunded and overlooked by the company. Instead of putting financial resources into an effective HR department, the company decided to put its resources into the moneymaking departments. However, when it did this, it did so at the expense of employees whose safety is dependent upon an effective HR department. Without a good HR department, there cannot be effective sexual harassment training and prevention and employees cannot be adequately protected against perpetrators who are bound to exist in any large company.

10. CONCLUSION.

Remember that sexual harassment cases are built and not handed to an attorney on a platter. However, with hard work and smart discovery, a good sexual harassment case against a large corporation has a very large settlement and verdict potential.

This article was authored by John D. Winer. Winer, McKenna & Burritt, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.