A Consumer's Guide To Sexual Harassment Litigation

John D. Winer, San Francisco

A. What is Sexual Harassment.

Both California and Federal law generally define sexual harassment as unwanted sexual conduct of two main types: quid pro quo harassment and hostile environment harassment.

Quid pro quo harassment occurs when employment is conditioned, expressly or impliedly, on the submission to unwelcome sexual advances (such as a supervisor saying "If you want to keep your job, you'd better have sex with me").

The more frequent type of sexual harassment, hostile environment harassment, generally occurs when the employee's work environment is made hostile or abusive by sexual misconduct.

Under the Fair Employment and Housing Act (FEHA), harassment includes gender harassment or sex-based harassment, i.e., conduct that shows hostility based on gender even though the conduct itself was not sexual. An example of this type of harassment would be a supervisor's hostile comments that "women do not belong in the work place."

Sexual harassment has been found to include:

  • unwanted sexual advances or propositions;
  • verbal conduct, including epithets, slurs or derogatory comments and comments about a person's body, appearance or sexual activity;
  • physical conduct, including assault, impeding or blocking movement, or any physical interference with normal work or movement; and
  • visual harassment, including leering looks, offensive gestures or derogatory posters, cartoons or drawings.

B. Under What Settings Can Sexual Harassment Occur.

Under California law, sexual harassment claims generally arise out of either an employment situation or when there is a business, service or professional relationship between the victim and the perpetrator. Examples of professional relationships include therapist and patients, attorneys and clients, and doctors and patients. (See California Civil Code section 51.9.)

C. An Employer's Duty Under Sexual Harassment Laws.

An employer must take all reasonable steps necessary to prevent discrimination and harassment from occurring. (California Government Code section 12940(i).)

If harassment has occurred, the employer has a duty to take measures to not only change the harasser's behavior, but to prevent potential harassers from unlawful conduct.

Reasonable steps to prevent discrimination and harassment from occurring include:

  • affirmatively raising the issue of harassment;
  • expressing strong disapproval of harassment;
  • developing appropriate sanctions for harassment;
  • informing employees of their rights and instructing them to report harassment;
  • developing methods to sensitize all employees to behavioral indicators of sexual harassment and the gravity of its consequences.

D. Retaliation Prohibited.

It is an unlawful employment practice under the Fair Employment and Housing Act (FEHA) to retaliate against anyone who has opposed practices proscribed by FEHA, i.e., sexual harassment or discrimination, or has filed a complaint, testified or assisted in any proceeding under FEHA. Thus, employees are protected from retaliation if they complain about harassment or discrimination.

E. The Requirement of Bringing an Administrative Claim.

Before pursuing a civil suit under California law, a plaintiff must first exhaust his or her administrative remedies by filing a complaint with the Department of Fair Employment and Housing (DFEH) or with the Equal Employment Opportunity Commission (EEOC).

It is important that the complaint specifically identify the discrimination and the perpetrators of the discrimination.

If an employee files with the Department of Fair Employment and Housing, he or she can ask the agency not to investigate the claim but, rather, simply immediately to issue a right-to-sue letter.

F. Strict Liability in Cases of Sexual Harassment by a Supervisor.

Under California law, if a supervisor sexually harasses an employee under his or her supervision or retaliates against an employee under his or her supervision, there is grounds for a strict liability claim against the employer. In other words, if a plaintiff can prove that the harassment occurred, the company is automatically liable for damages awarded against the supervisor, without the employee having to prove the company was negligent or even did something wrong.

The employer's strict liability arises from FEHA regardless of the employer's own lack of knowledge or it's attempts to remedy a sexual harassment situation.

Thus, any time an employee can prove that sexual harassment by a supervisor occurred, the employee will win if he or she can prove the harassment caused damages, and will be entitled to an attorney fee award. (See "M" below.)

G. Responsibility of an Employer for Sexual Harassment by a Co-Worker.

The employer is liable for harassment by a co-worker, customer or independent contractor only if the employer knew or should have known of the harassment and failed to take immediate and appropriate corrective action. (Government Code section 12940(h)(1).)

Thus, in cases in which sexual harassment is perpetrated by a co-worker, it is essential that the employee proves that the employer knew that the perpetrator had harassed the plaintiff or other employees before the acts complained of by the plaintiff and took inadequate steps to prevent it or, in the alternative, the employer should have known of the prior harassing behavior.

H. Who Is Protected From Sexual Harassment.

Under California law, the Fair Employment and Housing Act (FEHA) protects both male and female employees, applicants for employment and independent contractors. It also protects an employee or an applicant from harassment by a person of the same sex. It applies to all employees of any employer.

I. Severe and Pervasive Standard.

To prevail in a sexual harassment claim, the plaintiff must prove that the sexual harassment was severe or pervasive enough to alter working conditions and to create an abusive environment.

A plaintiff must show that a reasonable person would have considered the conduct severe or pervasive. If the plaintiff is a female, the fact finder uses a reasonable woman standard; if the plaintiff is male, the fact finder uses a reasonable man standard.

In addition, the plaintiff must demonstrate that he or she found the conduct sufficiently severe or pervasive to interfere with the work environment.

Whether or not conduct is severe or pervasive must be determined from the totality of the circumstances. Such circumstances include:

  • the frequency of the conduct;
  • the severity of the conduct;
  • whether the conduct was physically threatening or humiliating or was a mere offensive utterance;
  • whether the conduct reasonably interfered with the plaintiff's work performance, although the plaintiff need not show that she or he could not perform the job.

Remember, the standard is severe or pervasive. The more severe the conduct, i.e., sexual touching of genitals, the less it has to be pervasive (i.e., occurring frequently).

J. When the Harassment Is Not Directed at the Plaintiff Personally.

If sexual harassment permeates the plaintiff's work environment, she or he may have a claim even if the harassing conduct is not directed at the plaintiff personally, but occurs in the plaintiff's presence.

K. The Statute of Limitations.

Generally speaking, a plaintiff must file a complaint with the Department of Fair Employment and Housing (DFEH) or the Equal Employment Opportunity Commission (EEOC) within one year of the harassing conduct. A plaintiff must file a claim with one of the governing entities before filing a lawsuit.

If the sexual harassment has occurred over a long period of time, the plaintiff can sometimes rely on the continuing violation doctrine. Under this doctrine, if it is found to apply, the sexual harassment complaint is timely if any of the discriminatory practices continues into the one-year limitations period.

L. Damages Recoverable in Sexual Harassment Cases.

If an employee sues under California law, he or she is entitled to recover damages for past and future medical and psychiatric expenses, past and future wage loss, damages for emotional distress and punitive damages.

In a sexual harassment case, a plaintiff does not need to undergo psychiatric or psychological treatment in order to recover damage for emotional distress.

To recover punitive damages, i.e., damages to punish the defendant employer, a plaintiff must prove:

  • that the employer hired or retained the harassing individual with knowledge of his or her unfitness for the position and in conscious disregard of other's rights for safety;
  • authorized or ratified the wrongful conduct; or
  • was personally guilty of oppression, fraud or malice.

If the employer is a corporation, its knowledge, conscious disregard, authorization or act of oppression, fraud or malice must be on the part of a corporate officer, director or managing agent. A managing agent is a person who exercises substantial independent authority and judgment over decisions that ultimately determine corporate policy.

A plaintiff can prove that an employer's ratification for purposes of liability for punitive damage by establishing:

  • the employer adopted or approved of the action of the harasser;
  • it can be inferred from the employer's failure, after being informed of the harassment, that it ratified the conduct of the harasser by such evidence as a failure to fully investigate and punish the harasser.

M. Claim for Loss of Consortium.

A plaintiff's spouse can also sue and recover damages for 'loss of consortium." A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse's unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.

There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.

N. Recovery for Attorneys Fees.

If the plaintiff can prove harassment/discrimination, he or she is entitled to recover his or her attorneys fees as an element of damages. This is a very important aspect of the law because frequently the award for attorneys fees will be greater than the actual damage award to the employee. California law allows recovery for attorneys fees greater than the amount of actual damages because it recognizes that it important that attorneys have an incentive to handle sexual harassment and discrimination cases and that legitimate victims of harassment and discrimination would be unable to seek legal redress if attorneys fees were not awarded on top of a damage award.

O. Strategy Considerations for Plaintiff Attorneys and Plaintiff in a Sexual Harassment Case.

Sexual harassment cases have to be built. They do not land in an attorney's 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.

i. Key factors which are helpful for plaintiff to achieve a seven-figure verdict or settlement in a sexual harassment case.

Sexual harassment cases can vary in value from thousands of dollars to millions of dollars. Because attorney fees are awarded if plaintiff wins, it is not unusual for a plaintiff to win under $100,000 in damages and an additional award of hundreds of thousands of dollars or more in fees. Under most attorney retainer agreements, the fee award becomes part of the client's recovery out of which the attorney accepts his or her contractual contingency fee. For instance, if the compensatory damage award is $50,000 and the attorney fee award is $450,000, the attorney would base his or her fee on, for example, 40% of $500,000, or $200,000. The client benefits enormously by receiving a net settlement of $300,000 (minus case costs) instead of $30,000 minus case costs (i.e., in a $50,000 recovery after 40% fees, the client's net recovery is only $30,000 minus case costs.)

Thus, every good liability sexual harassment case has at least a six-figure potential value, and it is generally recommended that a sexual harassment victim, no matter what the size of his or her company or even whether the company has a human resource department, should seek the advice of an attorney to learn of his or her rights. This section simply deals with the exceptional case which can become a multimillion dollar case.

To achieve a multimillion dollar verdict or settlement, the defendant usually 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 (or no) 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 can potentially be built into a seven-figure case.

ii. 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' 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.

iii. 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. If the company has no human resource department, the case can be even stronger.

iv. 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.

v. 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 statutory settlement 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.

vi. 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 a discovery ruling could lead to key evidence that will greatly increase the value of the case. If plaintiff wins the case, plaintiff's attorney will receive his or 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.

vii. 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 or ratification and get to punitive damages, then a jury will be motivated to make a large award if you make the proper arguments.

viii. 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.

ix. 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.