3 Sexual Harassment Questions

As a trial attorney, I think some of the most difficult cases that we have are harassment cases in which we have employees that are being harassed in the workplace because of their gender, or it’s sexual in nature, race-based, or discrimination. A lot of times in a harassment case, the biggest damage that these individuals suffer is the emotional damage of being targeted because of a classification of who they are. They are who they are, they are what they are, and to be targeted because of who you are is tough and it’s real.

When we bring a lawsuit for harassment, one of the damages that we’re looking at is emotional stress of being targeted for who you are in the workplace. Sometimes that’s the sole damage that there is. They haven’t missed a day of work, but for eight hours a day, either daily, weekly, or monthly, they’ve been subject to harassment. That takes a toll. The employee will talk about waking up in the middle of the night, losing weight, gaining weight, the impact the harassment has had on their relationship with their spouse or children, the shame of telling their parents that they’ve been subjected to harassment or telling a sister or brother that they’ve been subjected to harassment. When you look at harassment claims, a lot of times the main damage that we’re looking at is emotional stress because that’s how it affects a person.

Sometimes, as a result of the emotional stress, people start missing work or, as a result of the harassment, they quit. They say, “I can’t take this anymore. I can’t go into work knowing everyday I’m going to be subject to harassment,” so they quit. In those types of cases, we seek damages because of constructive termination. We’re looking at damages based on the difference between what you would have made at the old company and what you’re now making at the new company. We’re looking at damages for that period of time in which you didn’t have a job. We’re looking at the difference between the benefits that you used to make, the healthcare benefits or the paid time off or the medical and retirement benefits, and then those benefits that you don’t currently have. Those are economic damages.

We might also seek punitive damages to literally punish the employer so that they take these types of claims seriously in the future. But for you another person might be subject to the same sexual harassment or race harassment or disability and discrimination harassment, some hostile work environment that’s based on a protected class or protected conduct. In addition, we will be seeking damages of attorneys’ fees and costs. If you go to trial, we’ll ask that the defendant pay for your attorneys’ fees and costs so it doesn’t come out of your pocket.

While most of these cases settle, it’s important for you to find a firm that can articulate to the defendant or articulate to the jury the emotional stress that their conduct caused you. It’s important for you to find a firm that’s willing to fight for you to the end, all the way through a jury trial if need be. What we found is when you find a firm that has the knowledge and the resources to fight until the end, most employers don’t want to go to the end and they want to put this behind them.

If you have questions about conduct at the workplace and what damages might be available, or the process, feel free to give us a call. I’m happy to answer any questions that you may have.

Last year, we had a case in which an employee was subject to sexual harassment of a co-worker here in California. The question was whether the employer was liable for the sexual harassment of the co-worker. When I say co-worker, what I mean is that the employee that was my client and the employee that was harassing her were on the same level; this other employee wasn’t a manager. During the litigation that became a relatively big issue because in California an employer is what we call strictly liable. They’re liable for the sexual harassment that’s the result of sexual harassment of a supervisor.

Under California law, if your supervisor sexually harasses you, the employer is automatically liable. The employer doesn’t have to know that the harassment was going on, the employer doesn’t have to know that the employee was unfit, and the employer doesn’t have to know that that employee had ever harassed anybody else before. Again, for sexual harassment of a supervisor, whether it’s your supervisor or any supervisor within the company, the employer is going to be liable for the sexual harassment of a supervisor.

For co-workers it’s a little bit different. For co-workers, in order for the employer to be liable, the person bringing the lawsuit, our clients have to show that the employer knew or should have known that the employee was unfit and was likely to sexually harass somebody. A lot of times, the employer knows that this person is unfit. A lot of times, you’re not the first person to complain about the employee. Surprisingly, a lot of times the manager will see the conduct going and say, “Well, that’s just Joe being Joe,” or people will know that that’s Creepy Joe because Joe has been sexually harassing people for years. They didn’t really hold him accountable, so his conduct continued.

It’s important that, if you’ve been subjected to sexual harassment, you find an attorney that knows that there’s a difference between supervisor harassment and co-worker harassment. Find an attorney that can put the resources and uncovering the fact that the employer is liable for the harassment that the employee is being subjected to. If you have any questions regarding sexual harassment at work, please feel free to give me a call. I’m happy to answer any questions that you may have regarding any issue happening at work.

3. Where do I file a sexual harassment claim?