But is it harassment?

Evaluating the sexual harassment case

Three potential clients want to sue their employers for sexual harassment.

The first is a clerical worker. She is outraged that over the past several years her supervisor referred to her as "a pretty girl" and made grunting noises when she passed by in a leather skirt. She estimates about six such incidents in two years. She has not complained to anyone. Friends told her she should see an attorney instead.

The second is a factory worker. Four months ago, her supervisor drew her into his office, rubbed his hand over her breast, and said if she would not sleep with him, he would have her changed to the night shift. She said no. He has not repeated the behavior. Last week she was changed from the day to the night shift.

The third is a male laborer in an all-male workplace. His coworkers repeatedly called him names suggesting homosexuality. One threatened to rape him. He quit.

Harassment is a hot topic in the news and in the legal community. Polls show that upwards of 25 percent of women report that they have been harassed in the workplace, with more than half of those reporting emotional harassment or inappropriate touching.(1) Men are targeted in 11 percent of the cases reported to the U.S. Equal Employment Opportunity Commission (EEOC).(2)

But not all boorish and scandalous behavior is legally considered to be sexual harassment. The first challenge for any lawyer counseling a potential victim is winnowing out the legally actionable cases. The second challenge is evaluating the feasibility of the case based on legal elements and damages.

Sexual harassment generally falls into two categories: quid pro quo harassment, or the explicit tying of job benefits to sexual acts or submission to sexual conduct, and hostile environment harassment, or the active creation of an offensive work environment.

In 1998, the U.S. Supreme Court clarified the definition of quid pro quo harassment. In Burlington Industries v. Ellerth(3) and Faragher v. City of Boca Raton,(4) the Court ruled that employers are strictly liable for a supervisor's sexual harassment when the worker's immediate (or higher) supervisor takes a tangible employment action against the worker, such as firing, failing to promote, or changing benefits. Quid pro quo harassment cases, such as the example of the factory worker above, should now be easier to identify and prosecute.

Hostile environment claims such as the examples of the clerical worker and laborer are more difficult. This article focuses on those claims.

Evaluating the conduct

Much unpleasant behavior is not legally sexual harassment. Under the "at will" doctrine, employers have no legal obligation to create fair and pleasant workplaces. The theory is the worker who doesn't like the work environment or the attitude and behavior of his or her supervisors can leave.

But employers do have an obligation to ensure that their workplaces are free of sex discrimination. In 1986, in Meritor Savings Bank v. Vinson,(5) the Supreme Court ruled that sexual harassment in the workplace is sex discrimination and violates Title VII of the Civil Rights Act of 1964.(6)

Since then, several cases, including three decided in 1998, have fleshed out what does and what does not constitute actionable sexual harassment.(7)

Essentially, the rule is that sex-specific and derogatory language, sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment if the conduct is unwelcome, severe, and pervasive enough that it creates an objectively intimidating, hostile, or offensive work environment and the worker subjectively finds it abusive. These factors are "determined by only looking at all the circumstances," which may include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance."(8) Both male and female workers can be sexually harassed.

To separate boorish and scandalous behavior from sexual harassment, first consider the answers to the following important questions.

1. Was the behavior directed at your client? If not, it will be difficult to make out a harassment case unless the conduct is so pervasive that the entire workplace is tainted (think EEOC v. Mitsubishi Motor Manufacturing of America(9)). The standard legal principle applies--clients can generally only recover for harms directed at or directly harmful to them.

2. Is the conduct sexual in nature? It is vital to know the exact words or conduct. If the behavior was not sexual in nature, it will not be considered sexual harassment. It might still be sex discrimination if only one gender was subjected to the language or behavior at issue?

(3.) Was the conduct directed at your client because of his or her sex? Conduct does not need to be motivated by sexual desire to be sexual harassment? But the behavior does need to be discrimination on the basis of sex. The nature of the conduct will suffice to show that motivation? Be aware that if both genders were treated the same way by the harasser (unlikely, but possible), this could, per Oncale v. Sundowner Offshore Services, Inc., defeat a sexual harassment case. How were workers of the opposite sex treated?

4. Was the conduct unwelcome? This is a central element to any claim of harassment and will be one of the first questions that will be asked during the plaintiff's deposition. If he or she welcomed the activity (e.g., a fully consensual sexual relationship) or did not find it unwelcome, there is no case. This is what distinguishes harassment from the consensual sexual affair or mutual joking relationship, even with a supervisor and even if the conduct or language was blatantly sexual. Ask carefully.

5. Was the conduct severe and pervasive enough to create an objectively hostile environment? Many cases that pass the previous hurdles fail here. The behavior may have been boorish and unwelcome, but unless it created an objectively hostile environment, it is not actionable.

This is an objective standard. Would a reasonable person find the behavior severe and pervasive enough to create a hostile environment? Right now, a "reasonable person" is usually the one we all came to know and love in law school--a middle-class, middle-aged heterosexual male. There is a movement to tailor the definition of the "reasonable person" to fit the plaintiff, that is, to establish the "reasonable woman" standard. However, that is not the general rule. Remember, most of these cases will be resolved on summary judgment where your "reasonable person" is a federal judge. Be realistic.

Explore the factors cited in Harris v. Forklift Systems, Inc.:(13)

* How often did the conduct occur? Generally, single acts of harassment are not actionable. Even when harassment was repeated numerous times, courts have refused to find it sufficiently "severe and pervasive" when it was sporadic and primarily verbal in nature.(14) Also consider the time that elapsed between the conduct and its effect on the person. Some harassment is like water torture. At first it is mild and seems innocuous, but over time it becomes severely painful.

* Was the harassment verbal or physical in nature? This interacts with frequency. Generally, physical touching of private areas of the body (e.g., breasts, buttocks) is considered sexual harassment, even if it occurs only once.(15) However, less sensitive touching (e.g., arm, hand) may require more frequency. Verbal comments generally require significant regularity to be actionable.

* Was the behavior physically threatening or humiliating? Think, for example, of the woman grabbed and mauled in a meeting or hallway where she is present as a professional (Tailhook) or the person threatened with rape. Remember, however, that threats and humiliation not taken seriously by the plaintiff are generally not actionable. Ask the plaintiff how he or she reacted.

* Did the conduct unreasonably interfere with the worker's performance, even if it was nonsexual? If, for example, a worker on the assembly line routinely interrupted and touched a coworker of the opposite gender (think Mitsubishi), the fact that the conduct interfered with the plaintiff's ability to perform might make it sexual harassment and/or discrimination.

Remember that "severe and pervasive" is in the eye of the beholder, the "reasonable person." The average woman may consider the repeated use of the word "bitch" severe and pervasive sexual harassment. The Seventh Circuit does not agree? But Justice Antonin Scalia, in Oncale, wrote that a smack on a male or female secretary's buttocks could reasonably be perceived as abusive.(17) If you are in doubt, run the facts at issue through LEXIS or WESTLAW and past nonlawyers. You might be surprised at what the courts consider legally tolerable or intolerable and what lawyers consider "severe and pervasive."

6. What impact has the sexual harassment had on your client? While Harris and Faragher make clear there is no requirement that a victim show that his or her work performance or psychological well-being was affected by the harassment, your client must, subjectively, find it abusive. Realistically, no judge or jury is going to consider the harassment more severe or pervasive or having more impact than your client does.

7. Did the employer know or should it have known of the harassment? Title VII creates an employer duty not to allow a sexually hostile environment. The courts have generally required a breach of that duty on the employer's part, that is, it knew or should have known of the harassment and did nothing.

After the Supreme Court decisions in Ellerth and Faragher, there will apparently be no requirement of knowledge if the harasser is a supervisor (but see the new affirmative defense discussed below). But the knowledge standard will probably still apply when the harasser is a coworker or a customer.(18)

It is best if your client actually complained to the employer and can document the complaints. Does your client have copies of memos to the human resources department or the supervisor? Are there notes in the victim's or the harasser's personnel files? Are there witnesses to the harassment and your client's complaints?

Notice can be proved in all the ways available in tort, such as prior incidents and complaints about the harasser or the environment and conduct so blatant and pervasive that supervisors could not miss it. Be aware that if your client failed to report the behavior, that fact will probably be used as a defense.

Procedural considerations

You are convinced that the behavior is legally actionable as hostile environment sexual harassment. Should you take thee case? Not necessarily. First, just as in a tort or contract case, you should carefully consider whether you can meet the procedural requirements.

Employment law has among the shortest statutes of limitations. Under Title VII, your client must first file a complaint with the EEOC within 300 days of the act at issue if your state has a human rights agency that has a work-sharing agreement with the Equal Employment Opportunity Commission, or within 180 days if it does not.

You can proceed with the lawsuit if the agency does not resolve the case within a specified period and gives the client a "right to sue." Unlike tort law, Title VII has no tolling or discovery provisions.

If your client missed the 300-day deadline, proceeding will generally be pointless. Yes, there is a doctrine called "continuing violation," which allows suits for behavior before the 300-day deadline. However, it is fraught with legal and factual difficulties and is narrowly interpreted by most courts.(19) If you are beyond the 300 days, check your state statute for longer deadlines and alternative venues.

You'll also need to find out if the defendant employer has the requisite number of employees to be covered by antidiscrimination laws. Title VII and many state human rights statutes exempt employers with fewer than 15 employees for public policy reasons. Again, check your state statute. If you are barred, there may be a local human rights commission that can help, but consider the limited forum and procedures available. There are also other special requirements and exemptions that must be considered. For example, Title VII exempts private clubs.

There are always exceptions to these rules, but be aware of the rules as you evaluate each case.

Potential defenses

Now can you take the case? Not so quick. As you would in a tort case, consider the potential defenses.

Did "the employer exercise reasonable care to prevent and correct promptly any sexually harassing behavior," and did the victim "unreasonably fail to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise"?(20) This is the new affirmative defense to hostile environment harassment by a supervisor set out by the Supreme Court in Ellerth and Faragher, which the employer must prove by a pre-ponderance of the evidence. (With a coworker harasser, the burden is on the plaintiff to establish lack of reasonable care by the employer or efforts by the victim to use ineffective corrective measures provided by the employer.)

Remember, read Ellerth and Faragher before considering this factor. In Faragher, the Supreme Court instructed employers to take all steps necessary to prevent sexual harassment from occurring and fourth, as a matter of law, that Boca Raton's sexual harassment policy was unreasonable because it was not disseminated to workers and had no provisions for bypassing a harassing supervisor. However, the Court also suggested that smaller employers could establish this element with more informal procedures. We can now expect significant litigation on what constitutes reasonable care by both employers and victims.

At minimum, you need to establish what policies the employer had, how employees were informed of those procedures, and whether your client followed them. If the procedures are reasonable and your client did not complain, unless you can find a compelling reason he or she did not, the case is unlikely to succeed.

Consider the standard tortlike or equitable defenses. Most will have been covered by the questions already asked, but go through your standard checklist just to be sure. Raising the defenses in a sexual harassment suit may require defendants to use different wording and procedures, but anticipate all the standard defenses to arise at trial in one way or another.

Damages

By now you know if you have a legally tenable case. But don't proceed unless you are sure the potential damages can also support what you and your client must do to succeed. The analysis is no different than that for any tort case. If the case cannot support the cost of litigation and a reasonable recovery for the client, it should not be brought.

The damages awardable in a Title VII sexual harassment case are the following:

* Wage and economic loss--back pay; reinstatement; front pay, in certain circumstances; benefits; and loss in earning capacity.

* Medical and psychiatric care and other out-of-pocket losses.

* Pain and suffering (often referred to as "anguish and humiliation").

* Punitive damages on a showing of willfulness.

* Reasonable attorney fees and costs, including expert fees.

Under Title VII, noneconomic compensatory and punitive damages are capped on a sliding scale, based on the size of the employer. The range runs from $50,000 for employers of 50 or fewer to $300,000 for employers of 500 or more.

Attorney fees can be recovered by a prevailing party and must be based on detailed contemporaneous records. The courts carefully scrutinize attorney fee awards, including the hourly fee and number of hours claimed, and may eliminate fees for unreasonable number of hours, use of multiple attorneys, limited success, and other factors. Again, check your state 7statutes, which may have different or more extended damages and which generally have no caps.

You must carefully establish your client's actual damages and the quality of your proof. Then think realistically and objectively. Newspapers have heralded numerous reports of multimillion-dollar awards in sexual harassment cases. Those awards are trumpeted because they are abnormally high. Most are severely reduced by judicial remitter or statutory caps.

In your analysis of the case, factor in everything you know about how a jury might react to your client, the severity of the injury, the egregiousness of the defendant's conduct, and similar factors. Consider how you can prove intangible damages. Often, victims of hostile environment sexual harassment have no wage loss, leaving few hard economic facts on which to begin the damages calculation.

There may be significant past and future medical bills, particularly for mental health care. Figuring in the cost of mental health care is a double-edged sword. Defendants usually argue that the care is unnecessary or that pre-existing mental conditions or outside forces like a bad marriage--not the harassment--prompted its need. Consider how that dynamic will affect a jury.

Many cases will have nothing but pain and suffering and punitive damages. These can be significant in severe cases. Evaluate a sexual harassment case based solely on these elements as stringently as you would evaluate a tort case. Remember, jurors who pay attention to insurance company propaganda may seriously question awards for pain and suffering. Punitive damages can be and often are reduced.

Sexual harassment cases are high maintenance financially and emotionally. Few employers have insurance for employment practices, so you may face a company's attorney, and any recovery may be paid from the employer's pocket. The employer's personal involvement can play both ways. It may result in a business judgment that leads to a realistic settlement, or a need for vindication, which may cloud judgment.

Sexual harassment law is unsettled and developing, making case evaluation harder for both sides. Employers control much of the material you need for proof. Key witnesses must often be deposed--not interviewed--since they are employees or former employees. The alleged harasser cannot be named as a party under Title VII, and that increases discovery issues.

Most cases must be brought in federal court, making them subject to the myriad procedural issues that are routinely discussed at virtually every ATLA convention. Almost every case includes dismissal and summary judgment motions that require you to research and write briefs and argue the motions in court. These motions proceed under the more stringent federal standards, which are less favorable for plaintiffs than most state law standards.

Many cases, although they are legally actionable, cannot support themselves on a straight contingency fee given the hours needed to succeed. Hence the congressional mandate for attorney fees. Honestly evaluate your chance of success and what you would reasonably expect it to cost to prosecute to a judgment.

Remember, we do our clients no favor if we proceed with weak cases. If a case cannot support itself economically, be sure to advise your client that he or she can still proceed. These cases can be handled administratively through the state human rights commission or the EEOC, where your client can usually proceed pro se.

Evaluation tools

Your essential evaluation tools are the same ones you use in tort cases: records, witnesses, past lawsuits, verdict comparisons, and so on. There are some specialized concerns, however.

Be sure that you have independent verification of the harassment and the plaintiff's reaction before you agree to take the case. Many attorneys have learned the hard way that what a potential client says is not precisely what happened.

Get the names and addresses of witnesses and interview them. If none is forthcoming, think twice. How are you going to prove your case if all you have is your client's word? Try to obtain formal statements from witnesses who may later be reluctant to testify.

Be sure to get anything your client has in writing. Many keep memos and notes. If you don't ask for this material, the client may not tell you about it. One sexual harassment case became relatively easy when my client asked, one and a half hours into our first interview, if it mattered that she had sexually explicit notes from the harasser. It did.

Get and read the employer's sexual harassment policy. If there isn't one, that tells you something.

If your case depends on claims of injury or medical treatment, verify any injuries or treatment before you take the case. Get the records and read them.

Always get the client's personnel file. It may contain information about the harassment. Other documents may reveal how your client was perceived at work.

Sexual harassment cases are credibility battles. Evaluate your client's and the harasser's credibility and demeanor. Find out if your client or the harasser had any past convictions, arrests, or incidents of misconduct. Don't take your client's word that his or her record is clean. Some clients forget, some dissemble. For your client and the harasser, check the following:

* Personnel file. Get your client's file immediately. Are there records of any problems? Are there any complaints? If you take the case, get the harasser's file first thing.

* Criminal history.

* General reputation in the workplace. Even if there are no witnesses, your client should be able to tell you the names of coworkers who can talk generally about your client's reputation and that of the harasser as well.

If your client received counseling, always interview the treating psychologist or therapist and read your client's complete file. The file may contain notes on disclosures to the therapist that may be sensitive. Your client and the therapist need to know that the details of the file may be disclosed no matter how hard you fight to keep them confidential and regardless of the law on therapist privilege. Is your client prepared for that?

Many victims of sexual harassment have experienced prior trauma or psychological treatment. Again, this information should not be admissible. However, to be prepared, you must find out whether your client has had past emotional distress and treatment, and your client must know of the potential for disclosure.

Representing a sexual harassment victim can be truly rewarding. No person should have to endure sexual harassment in order to earn a living. As lawyers for families and consumers, we have an obligation to make that premise a reality.

Winning begins with careful case evaluation and selection. Not every touch or nasty word is sexual harassment. Knowing the difference and knowing when to bring a viable case to trial are the keys to enforcing the law and deterring harassers.

Notes

(1.) James T. Madore, When Work Turns Ugly, NEWSDAY, Apr. 5, 1998, at 4.

(2.) Id.

(3.) 118 S. Ct. 2257 (1998).

(4.) 118 S. Ct. 2275 (1998).

(5.) 477 U.S. 57 (1986).

(6.) 42 U.S.C. [subsections] 2000e-2000e-17 (1998).

(7.) Faragher, 118 S. Ct. 2275; Ellereth, 118 S. Ct. 2257; Oncale v. Sundowner Offshore Servs., Inc., 118 S. Ct. 998 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).

(8.) Harris, 510 U.S. 17, 23.

(9.) 990 F. Supp. 1059 (C.D. Ill. 1998).

(10.) See discussion in Doe v. City of Belleville, 119 F.3d 563, 575-76 (7th Cir. 1997), vacated, 118 S. Ct. 1183 (1998).

(11.) Oncale, 118 S. Ct. 998.

(12.) See discussion in Doe, 119 F.3d 563, 575-76 (7th Cir. 1997), vacated, 118 S. Ct. 1183 (1998).

(13.) 510 U.S. 17.

(14.) See, e.g., Brill v. Lante Corp., 119 F.3d 1266, 1274 (7th Cir. 1997); c.f. Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103 (8th Cir. 1998).

(15.) See, e.g., Fall v. Indiana Univ. Bd. of Trustees, No. 3:96-CV-205, 1998 U.S. Dist. LEXIS 12174, at *21-22 (N.D. Ind. July 23, 1998).

(16.) Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167-68 (7th Cir. 1996). 17. 118 S. Ct. 998, 1003.

(18.) See Ocheltree v. Scollon Prods., Inc., No. 97-2506, 1998 WL 482783, at *3 n.1 (4th Cir. 1998).

(19.) See, e.g., Provencher v. CVS Pharmacy, 145 F.3d 5 (8th Cir. 1998) (explaining and allowing use of continuing violation theory); c.f. Speer v. Rand McNally & Co., 123 F.3d 658 (7th Cir. 1997) (no continuing violation).

(20.) Ellerth, 118 S. Ct. 2257, 2270; Faragher, 118 S. Ct. 2275, 2293. This does not apply if the supervisor has taken a tangible employment action--for example, firing, demoting, changing responsibilities--against the employee.

RELATED ARTICLE: How employment rights lawyers help each other

The latter half of the century has seen dramatic changes in the area of employment law, making membership in ATLA's Employment Rights Section all the more valuable to both veteran and newly minted attorneys, according to the section leadership.

Section Chair Alan Fuchsberg, a New York City employment rights attorney, noted that legal developments in the 1990s alone have changed the way litigators approach discrimination cases.

"The Civil Rights Act of 1991 amending Title VII, as well as the passage of the Americans with Disabilities Act in 1992, gave claimants the right to trial by jury," Fuchsberg said.

"More trial lawyers are receiving inquiries concerning possible employment discrimination," he added. These cases are more often tried in front of juries, so it is becoming an important area of practice for ATLA members. That's a reason why the membership in this area has grown practically overnight."

The section is ATLA's fourth largest, according to ATLA's Sections Coordinator Nancy Dugan. "Among all sections, employment rights has had the greatest rate of growth and enjoys one of the highest membership retention rates," she said.

Fuchsberg said that many trial lawyers who have focused their practice on more traditional personal injury cases in the past are finding satisfaction in trying employment cases.

"It's a very natural transition, going from personal injury cases to employment cases," he said. "The damages in an employment case are for emotional and economic injuries and, in personal injury, the damages are for physical, emotional, and economic injuries. You're dealing with two out of the three in employment cases."

Fuchsberg noted that participation in the section is particularly helpful to members because of the myriad statutes governing employment cases, including the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act.

Members have almost immediate networking contact with other employment law attorneys because of the section forum on ATLA NET, the association's online service. "Members put new materials on the Net all the time," Fuchsberg said, adding that the section also distributes a newsletter and conducts seminars at ATLA conventions.

"Justice in the workplace is a concern that touches almost everyone's life," Fuchsberg said. "It is important for lawyers to protect the rights of individuals in this area."

In addition to Fuchsberg, officers for 1998-99 are Jeffrey Needle of Seattle, vice-chair; Donald Hill of Dallas, vice-chair; Edward Kramer of Cleveland, secretary; and Monica F. McFadden of Chicago, treasurer.

For more information about the section, contact Nancy Dugan at [phone] or [phone], ext. 312. Annual membership is $36.

Monica E. McFadden practices law in Chicago.