After a report of sexual harassment, the employer is responsible for protecting the worker from additional sexual harassment and protecting the worker from retaliation for having complained. They are also responsible for finding ways to accommodate the worker, within reason. For example, if your boss has sexually harassed you, the boss needs to be counseled or disciplined for doing so. Sometimes, we see the employee being transferred to a job they don’t want to do—and that is retaliation. The boss should be disciplined and that might include transfer to somewhere else. Unfortunately, we rarely see employers do what is right in these circumstances.
Who can potentially be held liable in a sexual-harassment case?
Different law firms have different philosophies on who they want to go after in a sexual-harassment case. Some law firms only want to sue the employer. We take a broader approach; we want to bring to the table, in a lawsuit, every single person who is responsible. It requires a lot more work but it is, in our considerable experience, a better way to ensure that justice is done. Under federal law, you can only sue the employer in a sexual-harassment case. If that employer is a small business, it may mean that you wind up suing them and they go out of business, and you are left with no remedy.
Even if we are bringing a federal lawsuit, we also bring state-law causes of action or we will file in state court. We will sue not only the employer but also the individuals who are involved in either the harassment or the retaliation. Those other individuals are often sued under an aiding-and-abetting legal theory. By bringing them to the table, we are sometimes able to sow division between the employer and the employees. Sometimes, that forces the other side to go get separate counsel because of conflicts of interest.
If you are pursuing everyone, you have the potential for recovery from multiple sources. Whenever we file a case, unless the factual picture changes, we are prepared to take that case to the end, if necessary. In a jury trial, it tells a much better story if everyone who is responsible is forced to be on the other side of the table and has to show their face in court every day.
How can someone help preserve evidence for their sexual-harassment case?
Our dream clients are the ones who have gathered all the documentation, have made audio recordings, and have preserved every text message, email, and social-media chat. If you think there may have been witnesses to your harassment, give us a list of names. If they are low-enough-level employees, we might be able to interview them before we file suit. There is no conflict of interest associated with us gathering that evidence.
The best clients are the ones who create a chronology and organize themselves before contacting a lawyer. The volume of calls that our boutique firm receive exceeds 30 a day. The clients who impress us the most are those who have really done their own homework and are able to be advocates for themselves. Evidence comes in two forms: either documentary, which can include videos, or testimonial. If it’s testimonial, tell us who is going to say what and tell us how to reach them.
What happens if someone was a hesitant or unwilling participant in their harassment?
We have handled sexual-harassment cases where the victim of sexual harassment had been in either a flirtation or a relationship with the person who is pursuing them but decided to break it off. The other person just won’t accept “no” as an answer. That’s still sexual harassment because it is now unwanted. If the behavior is sufficiently severe and pervasive as to effectively alter the conditions of employment, then it is sexual harassment. Does it make it harder to prove? Yes, and that’s why the documentation is very important.
We have successfully resolved cases where there was initially consent and later on there wasn’t. We are going to approach them with a little more skepticism because we need to be able to show that it did, in fact, become a sexual-harassment case. We are going to have to be able to refute the other side’s claim that everything was consensual.
For more information on Employer’s Responsibility in A Sexual-Harassment Case, please call our office today at (216) 578-1700 and speak with one of our intake specialists, or fill out our online contact form.