Deposing the sexual harasser.

Depositions of sexual harassers require an understanding of harassment and a carefully planned strategy.

Depositions of key witnesses require careful preparation and skill. Depositions of alleged sexual harassers require even more attention because of the complex and emotional nature of the claims and the likelihood that the harasser is the only person other than the plaintiff who experienced the key events alleged in the complaint.

To successfully depose the harasser, you must (1) understand the nature of sexual harassment, (2) identify the goals of the deposition, (3) explore the facts of the underlying complaint and the law relating to it, and (4) devise a strategy to put the harasser at ease and enable you to obtain key admissions necessary to prosecute the case.

Nature of harassment

Harassment in the workplace because of an individual's sex is a form of discrimination prohibited by Title VII. The harasser's actions affect more people than just your client. Sexual harassment frequently disrupts the entire workplace community. The person who complains of harassment may be fearful of retaliation, and the person accused may face disciplinary action or termination.

Sexual harassment violates trust, creates a hostile working environment, disrupts working relationships and productivity, and ruins reputations. Management and coworkers frequently resent the victim for complaining about sexual harassment as much as they do the harasser for causing the disruption. Everyone may feel guilty about what they did or did not do to address the situation. Often, the harasser has a pattern of similar harassing conduct toward others. Stay open to information about how others have reacted to your client's accusations and follow up to identify other sources of valuable evidence.

While both males and females may be guilty of and targets of sexual harassment, harassers are most often male and targets are most often female. For simplicity, this article will refer to sexual harassers as males and targets as females.

Whether the alleged harasser is named as an individual defendant or just a key player and witness in the case against an employer, he often feels wrongly accused. He may claim that your client's allegations are lies or exaggerations and that the behavior in question was appropriate. Sometimes, the harasser will admit to some or all of the conduct but claim your client was a willing party and welcomed the behavior that forms the basis of the complaint.

The sexual harasser and the employer may defend against charges by blaming your client for being overly sensitive to incidents that would not be offensive to the "reasonable woman," for not saying "no," for not making a formal complaint, or for performing her job poorly and using the harassment as an excuse. In some cases, the employer may be able to avoid liability for coworker harassment by claiming it had no knowledge of the harassment. In most cases, the harasser's reaction to your client's claims will drive the defense theory of the case. You must learn everything you can about the harasser's knowledge and perspective during the deposition.

Two types of sexual harassment with different liability standards have evolved in the case law that interprets Title VII. One is quid pro quo harassment, in which a supervisor demands sexual favors as a condition for job benefits. The other is harassment that creates an offensive or hostile work environment.

Quid pro quo sexual harassment occurs when submission to or rejection of unwelcome sexual conduct by a person is used as the basis for employment decisions affecting that person. A plaintiff must show she was subjected to unwelcome sexual conduct and that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions, or privileges of her employment.

To make a hostile or abusive work environment claim, a plaintiff must show she was subjected to unwelcome verbal or physical conduct of a sexual nature or because of gender that was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment, and that the employer is liable.

Goals of the deposition

In the deposition, you will seek to accomplish a number of goals, using different techniques to achieve each one. Before the deposition, consider your primary objectives. Create an outline of the subjects you must cover, the order of inquiry, and related documents you plan to use as exhibits. For this purpose, consider the following general goals:

* Discover all the facts known to the harasser.

* Discover witnesses and documents related to those facts, and authenticate key documents.

* Exhaust the harasser's knowledge about each subject area and pin down his version of events for impeachment at trial.

* Obtain admissions of violations to be used as affirmative evidence against the harasser or employer or as ammunition for impeachment.

* Seek the harasser's agreement with hypothetical statements that are helpful to your client's case.

* Attack prior statements damaging to your client to get the harasser to modify them.

* Explore prior helpful statements that are inconsistent with damaging deposition testimony to have the harasser qualify this testimony.

* Evaluate the harasser as a witness.

* Preserve testimony if the witness may not be available at trial.

* Discover opposing counsel's legal theories.

Facts

Under normal circumstances, you have only one opportunity to depose the alleged harasser. Therefore, before the deposition, get all the information and documents you need through interrogatories and requests for production, Fed. R. Civ. P. 30(b)(6) depositions, public disclosure requests, or other information requests.

A thorough review of the following documents is essential for exhaustive preparation for the deposition: company files on the plaintiff and the harasser, including personnel files, benefits information, supervision given or received; employee handbooks, manuals, and other documents that contain company policies on sexual harassment, complaint procedures, discipline, and cause for termination; documents on the plaintiff's complaint of sexual harassment and the investigation and discipline that ensued (if any); documents about other similar complaints against the harasser or the employer; documents from the Equal Employment Opportunity Commission or other human rights agencies; unemployment or disability files on your client; and corporate organizational charts and job descriptions.

In addition, interview your client. Find out everything you can about the harassment, the harasser, and any witnesses. Develop a chronology with sufficient detail so you can question the harasser effectively about key events. If you don't know what happened, you can't ask about it. It is better to find out during deposition than during trial what the harasser has to say about your client's specific assertions.

Interview witnesses to the harassment. Find out what they have to say about the key events and the work environment in general. Ask corroborating witnesses what your client reported to them at the time. Ask the alleged harasser's other victims about what happened to them. Different people remember different things and have perspectives on the situation that will help you question the harasser.

Finally, identify the legal and factual issues and admissions necessary to prove your case. Case law has developed differently under various state discrimination statutes and among the federal circuits. Because of this and the variety of legal and factual issues that arise in every case, no single template can be developed for deposing the sexual harasser. You must research the law in your jurisdiction for the standards that apply in your client's case.

Below are some common legal issues that arise in harassment cases, with recommended questions for the deponent.

* Quid pro quo sexual harassment. Generally, the law imposes strict liability for quid pro quo sexual harassment by a supervisor who wields the actual or apparent authority to hire, fire, or alter the terms and conditions of employment that the employer has delegated to him.

During the deposition of the harasser in this type of case, explore the position or terms of employment the plaintiff soughs, the requirements for qualified applicants, and the complete process undertaken to come to a final employment decision.

Ask the harasser for his title and job responsibilities. Elicit an admission that he had the authority to make the employment decision regarding your client and did, in fact, make it or was involved in it. If there is any question about this, explore in detail the organizational structure and the extent of his authority to hire, fire, supervise, and discipline staff in your client's position, as well as his involvement with other personnel decisions that affected your client.

Ask the harasser to characterize his relationship with your client, how it developed, whether they saw each other socially outside of work, and if the relationship became sexual. If there was a previous consensual relationship between the parties, establish through the harasser's admissions everything about it, including how and when it ended.

Elicit facts that establish that your client expressed a lack of interest in a romantic relationship. Did she point out to the harasser that he is her boss and that he is married? Did your client say she did not want to kiss him? Did she move her desk, rearrange her work schedule, or ask to be transferred?

Have the harasser testify in detail about the sexual proposition or conduct your client alleges occurred, or at least get him to corroborate the circumstances surrounding it. For instance, did they meet for dinner? Take a trip? Did the harasser comment on your client's clothes or put his hand on her knee?

Walk through the incident step by step to exhaust the harasser's knowledge of what was said and done, including how your client reacted. Ask him to discuss how your client's reaction affected the adverse employment decision. At a minimum, seek an admission of a close nexus between your client's rejection of or submission to the harasser's demands and the subsequent employment decision.

* Hostile work environment sexual harassment. Begin deposing the harasser with a general request to describe his educational and work background. Then ask about his position and authority in the company. Ask him to detail how his working relationship with your client developed. Then, after you have an understanding of this relationship, ask whether he ever did the precise things your client complained about. Ask him, "Did you call her a slut?" "Did you assign her dangerous or demeaning duties?"

For each behavior he admits, ask about the circumstances surrounding the incident and whether he ever acted similarly toward others in the workplace. For each behavior he denies, seek a further denial of specific incidents your client remembers, especially those to which there are witnesses. Ask him, "Did you ever touch her?" "On the business trip, did you sit next to her on the plane?" "Did you touch her knee?"

Ask the harasser about the general tenor of the workplace environment, including the behavior of other employees. He may admit that others engaged in harassing conduct.

Seek testimony regarding as many specific incidents and behaviors over time as possible to show the harassing incidents are not isolated events but a severe and pervasive pattern that created an objectively hostile or abusive work environment.

Determine if the harasser knows how his conduct altered your client's employment conditions or work situation. The harasser may admit to knowing that your client was bothered by the incidents, had rejected his overtures, had cried or told the harasser the comments made her uncomfortable, or had sought to be transferred out of the office. The harasser may also admit that other employees complained about him or that a significant number of other women were hired for your client's job and left within a short period of time. Pose hypothetical questions that the specific allegations your client made.

The defendant may defend a claim by suggesting your client was overreacting to what occurred in the workplace or by shifting attention to other stresses in your client's life. Any effort to make your client seem "unreasonable" should be explored to determine if the harasser knew information about your client that would make her more susceptible to being injured by harassing behavior and if he used that knowledge to harass her. Ask about his knowledge of your client's family background, whether he knows of any stress in your client's life, or if he knows of other incidents of abuse or workplace harassment your client may have experienced.

Because Title VII prohibits employment practices and discrimination based on a person's sex, explore the harasser's sexual conduct and actual demands or requests for sex as well as his use of sexual epithets, innuendos, or inappropriate references to parts of the body.

Nonsexual harassment can also be based on sex if it targets your client because of her gender or if it targets only those of your client's gender. For example, if the harasser yells or swears at women but not at men or if he calls women sexual taunts like "slut" but does not call men names or calls them only gender-neutral names like "jerk," that is evidence of discrimination because of gender.

The harasser's relationships with other women in the workplace are relevant. Ask the defendant whether he ever behaved toward others--male or female--the way he did toward your client. If the harasser called your client by a pet name, did he have nicknames for other employees regardless of gender? Did he ever ask people of his own gender out for drinks after work?

The harasser may also defend against the claims, alleging your client agreed to his demands. Acceptance of the demands does not mean they were welcome.

The correct inquiry is whether your client's conduct--not participation--indicated that the alleged sexual advances or behaviors were unwelcome. In contrast, if your client showed by words or actions that the acts or behavior were welcome and if your client never complained about sexual harassment, a court may find there was no sexual harassment.

Therefore, the harasser should be questioned extensively about every incident he and your client recall. The harasser should describe your client's verbal and physical reaction to each offensive incident. Get him to admit that she responded negatively. Ask if he knew your client complained to others about the conduct. Ask if your client initiated any sexual conversations, pranks, or activities.

* Employer liability. Often, employer liability for hostile work environment sexual harassment by a supervisor or manager is broader than for sexual harassment by a coworker. Therefore, the questions about the harasser's authority as described in the quid pro quo section are relevant to these circumstances as well.

Keep in mind the more restrictive coworker standard when you depose the harasser. An employer who knows or should have known about improper conduct in the workplace and failed to take immediate and appropriate corrective action can be held responsible. The employer's lack of policies or training on sexual harassment can add to the liability.

Ask the harasser early in the deposition to describe his understanding of sexual harassment. Explore where that understanding came from. Ask if the employer has written policies regarding sexual harassment and ask him to recite them. When did the defendant learn of the policies? Was he ever trained about those policies or state and federal laws against discrimination?

Ask about the harasser's education, employment background, training, and experience. Was he ever trained in other capacities regarding state or federal discrimination laws? If so, what did that training entail? Depending on the harasser's background and the sexual harassment training received, he may agree that a hypothetical set of facts summarizing the conduct your client complained about would constitute sexual harassment.

If possible, have the harasser testify about conduct that was open and obvious to other employees. Ask him to identify others who were involved in or who witnessed the behavior, and ask him to describe their conduct.

Seek his knowledge about complaints made by your client or others to management or coworkers about him. Ask him to describe in detail how the company investigated the complaint, interviewed him, and took corrective action. Was the harasser required to complete any training or education on sexual harassment after the complaint? Was his pay cut? Was he demoted?

Compare the harasser's pay rates and performance evaluations before and after the complaint, and have him admit to facts that show he was not really disciplined (for example, he received a raise or a promotion, or his performance evaluation did not mention the harassment complaint).

Finally, ask about action taken after the harassment issue was resolved. Seek out any acts by the employer or by the harasser that could be construed as retaliation. For instance, was your client transferred? Were her hours changed so she would not have to work with the harasser? Did the harasser refuse to work with her?

Ask the harasser to confirm that your client is a valuable employee. Ask him to describe weaknesses in your client's work performance. If your client is no longer employed with the company as a result of the harassment, ask the harasser if he knows why. Does he know if or why your client's employment would have been terminated had the harassment not occurred?

If the harasser is a supervisor or a manager, ask him about the company's personnel policies, whether your client received performance evaluations, and exactly what issues were covered in each evaluation. Find out if your client was ever told of any complaints about her performance or if the complaints were recorded in writing. If the company justifies adverse employment actions toward your client based on her performance, establish that the standards used for your employee are different from those used for other employees. Ask if anyone else has been demoted or fired for the same reason as your client.

Strategy

Many people are uncomfortable talking about sex, power, discrimination, and accusations of wrongdoing. These issues cannot be avoided when deposing an alleged harasser. You must ask detailed questions about the harasser's conduct and relationship with the plaintiff end other targets of the harassment.

Your ease with the subject matter encourages candid testimony and facilitates specific questioning in response to elusive answers. If you are shy, delegate this job to someone else.

Consider having your client present for the harasser's deposition. Does your client want to be present? Will the experience affect her well-being positively or negatively? Will the harasser be more truthful if your client is there? If your client is present, she will be able to consult with you about issues that arise for the first time and she will have the opportunity to hear what will be said by the defense at trial.

However, if your client still suffers from the harassment and if attending the deposition could worsen her psychological condition, the advantages may not be worth the risk to her well-being.

Establish a good, professional rapport with the harasser at the beginning of the deposition. No matter how awful his alleged conduct, be nice. Your job is to get information. Start the deposition with non-controversial subjects like background and workplace duties to make him feel comfortable. Save sticky issues about your client's allegations until the end.

Ask for general explanations first, t3hen follow up with specific questions to exhaust the harasser's knowledge. What you don't know will hurt you. Keep an open mind when you ask questions so you can actually hear the responses and track important tangential comments. Follow up until you have exhausted each subject.

To make a coherent record, issues are often best explored in chronological order. Still, jumping around can catch the harasser off guard and result in useful testimony. Determine the order of questions by referring to the goals you set for the deposition and the information you receive during the deposition.

The harasser must trust that you are interested in what he has to say; otherwise he will not talk freely. If the harasser evades questions, continue to ask them until he answers. Be persistent and professional. Do not share your judgments about his character or whet he has to say.

After hearing the harasser's version of the events, ask him about your client's perspective. Ask detailed questions about the incidents your client described and seek his agreement or denial that these incidents occurred or his version of the events.

Expose the fragility of memory. Your client will be challenged at trial for not remembering all the specific details of events. Make sure she is not alone. Ask the harasser about details of events he describes that are particularly damaging to your client's case to establish that his memory is also limited. For example, ask who made the dinner reservations, what they ate, and what they spoke about.

After you depose the harasser, follow up with your client and other witnesses on facts he asserted. Consider sending to the employer requests for admissions based on the harasser's testimony. Send requests for production to obtain any new documents identified in the deposition. Use the harasser's version of events to depose upper management and other key witnesses and to identify inconsistencies in the defense.

Finally, when you review the harasser's deposition transcript, relax. Even though some questions may be left unanswered, you've accomplished one of the most challenging aspects of pre-trial discovery.

RELATED ARTICLE: Case selection in employment cases

Aside from the relationship with a spouse, few relationships exists that people take more seriously than their relationship with their employer. When that relationship ends through a forced termination, people experience emotions such as confusion, anger, resentment, and emotional distress. Frequently, they decide to consult an attorney.

Employment lawyers, like professional negligence lawyers, must try to separate the wheat from the chaff among prospective clients who approach them.

The more information you can procure before deciding to accept a case, the better you chance of properly evaluating it. Perhaps the most important document to acquire is the employee's personnel file. State laws vary regarding employees' right to copies of their personnel files before or after their discharge. If your state law grants employees access to their personnel files, tell a potential client to bring the file to the initial interview.

Other documents that may or may not be part of this file should also be brought to the initial interview so that you can assess liability. These include employee evaluation, written warnings and commendations, job descriptions, job offer and termination letters, and company handbooks or manuals. These documents help provide a clear picture of the employee's background as well as the culture of the company.

From a damages perspective, benefits booklets or other information published by the company regarding fringe benefits should be requested. If a union contract exists, the potential client should provide it. Also, he or she should bring several years of W-2s, documents reflecting efforts taken to mitigate damages, documents reflecting earnings since termination, and medical or psychological records if the claim involves emotional distress.

There is also information you can secure before the initial interview that will help you assess the claim. You should locate cases involving the defendant filed in federal or state court by searching records in the appropriate clerk of courts office or by using computer data bases. To get copies of administrative claims, you may have to request them under the federal Freedom of Information.

Other sources of information include the company's Web site, magazine and newspaper files, and company press reeleases, which are often puff pieces that may contain damaging admissions about the corporation. Federal securities libraries can provide annual reports and various financial reports that corporations have sent to their shareholders or the Securities and Exchange Commission.

After securing information like this. you can intelligently discuss the claim and properly assess its viability.

In deciding whether to accept the case, you should consider these factors:

Length of service. Long-term employees make for better clients, because usually a person does not survive for 20 years at a company without having some ability. By the same token, employees who lose their jobs after only a few months except for victims of sexual harassment who have been besieged by the employer--generate less empathy from a fact finder.

Prior employment history. This is a major factor. One damage you attempt to recover is future pay. If a client tends to switch jobs every few years? it is more difficult to argue that the client would have finished his or her career with the potential defendant.

Others similarly situated. How has the employer treated other employees in a similar situation? If several employees or ex-employees say that they, too, suffered comparable treatment at the hands of the employer, their testimony can have great impact. Management can say it is committed to equal opportunity, but if you have witnesses who cast doubt on this testimony, the jury is unlikely to believe management.

Availability of witnesses. You must quickly determine whether anyone can corroborate the client's story. Sometimes you can get luck! and secure significant admissions from an employer that lend credence to the employee's account. However, the odds of willing the case improve dramatically when there are witnesses to testify on the client's behalf.

Direct evidence. Direct, rather than circumstantial, evidence of discrimination makes the case easier to prove. Also, direct evidence has a much more dramatic effect on a jury than circumstantial proof. Although employers have gotten more sophisticated about not making derogatory statements, it is surprising to see the number of cases where a client or other witnesses can provide direct evidence of improper comments.

Recommendation letters. When the employer fired the client, did it also write a letter of recommendation? Employers who testify about a client's poor job performance lose credibility when confronted with their glowing letters of recommendation. In fact, the letter alone may be sufficient evidence of pretext to get the case to a jury.

Prior claims history. Is the potential client someone who feels wronged by every employer he or she has worked for (ore significant number of them)? If the answer is yes, it is likely the person is overreacting or overreaching in the current situation.

Earnings. Employment litigation is cost-intensive. So' you must determine what the client earned while with the defendant, how quickly he or she found another job, and what the new job pays. Although emotional distress damages can sometimes be the basis of a substantial award, the building blocks of such an award are large, out-of-pocket losses because the person cannot find another job or has to take a significant pay cut. In assessing salary, also consider the difference in fringe benefits between the previous job and the new one, as this may also be a significant area of loss.

Efforts to mitigate. Reaction of employees to their terminations should be carefully explored. What did the employee do after being fired' Did the employee aggressively seek new employment. or did he or she stay at home watching television? To the extent that an employee has not aggressively attempted to mitigate damages, an affirmative defense is going to be raised in any potential litigation.

Financial conditions of the employer. Employment cases use scarce resources--the attorney's time and potentially the attorney's money. If the potential defendant has financial problems or goes bankrupt, your efforts will have been wasted. Before agreeing to undertake any representation, make at least some determination about the collectability of any judgments.

There is no magic formula as to how many of these factors should weigh in favor of the potential client before you take a case. Common sense must rule the day. If most of the "'actors weigh in favor of the employer, you probably should reject the case.

Finally, one intangible must always be considered. Do you like the potential client and feel you can work together? If your initial reaction is to dislike or disbelieve the person, the jury will likely have the same reaction. Trusting your own instincts, as well as analyzing the information provided and discovered. are the keys in deciding whether to accept a case.

Lawrence S. Markowitz is a partner with Markowitz & Krevsky in York, Pennsylvania.

Andrea Brenneke practices with MacDonald, Hoague & Bayless in Seattle. She thanks Katrin Prank and Mary Roberts for their help in preparing this article.