Proving damages in a sexual harassment case.
In addition to psychological and emotional injuries, victims of sexual harassment often suffer serious economic consequences. They often change jobs, transfer to other offices, or abandon efforts to get employment in order to avoid further harassment. They may lose income, seniority, references, work alliances, and the advantage of an established work reputation.
Lawyers who represent victims of sexual harassment should look at the events from a reasonable woman's perspective. Even though the U.S. Supreme Court recently used a "reasonable person" perspective in determining liability for a hostile work environment, an attorney must still adopt the woman's viewpoint to understand her experience.
Women have personal concerns that men do not normally share, particularly the fear of sexual assault. If a man approaches a woman with a dirty joke or pornography or comments relating to anatomy, she is likely to be concerned about how he will behave toward her later. Attorneys who are sensitive to this difference in mind-set will be better able to convince a jury that the client suffered serious harm.
When representing a victim of sexual harassment, you must determine the type and degree of harm she suffered as a result. In some cases, the victim may have been offended but not frightened, and her mental health may not have been undermined. This situation arose in Harris v. Forklift Systems, Inc., the most recent sexual harassment case to be considered by the U.S. Supreme Court.
Teresa Harris resigned from her job as a sales manager at Forklift Systems after years of verbal sexual harassment by her supervisor. The Sixth Circuit affirmed a federal magistrate's ruling that although the supervisor's comments were vulgar and demeaning, Harris had no claim for damages because she had not suffered psychological injury.
The Supreme Court reversed. It held unanimously that psychological injury does not have to be proven as an clement of sexual harassment. Instead, workers need only show that the offensive conduct created an environment that "a reasonable person would find hostile or abusive."
A discriminatorily abusive work environment,
even one that does not seriously
affect employees' psychological
well-being, can and often will detract
from employees' job performance, discourage
employees from remaining on
the job, or keep them from advancing
in their careers. Moreover, even without
regard to these tangible effects,
the very fact that the discriminatory
conduct was so severe or pervasive that
it created a work environment abusive
to employees because of their race,
gender, religion, or national origin offends
Title VII's broad rule of workplace
The Court found that the effect of the harassment on the employee's psychological well-being is "only relevant to determining whether the plaintiff actually found the environment abusive." The Court added, "But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required."
Many victims react quite differently than Teresa Harris did. They react with fear, and they may come to doubt their own value as employees and human beings. These victims suffer a great deal of emotional distress. If your client is not seeing a counselor, psychologist, or psychiatrist, consider recommending that she see one. Without help, she may have a difficult time healing.
Although the harm a victim suffers is real, her response to the harassment may be difficult for jurors-and even her attorney-to understand. Many people have expectations about how a woman should react.
For example, allegations of sexual harassment sometimes are not considered credible if the woman did not respond emotionally to the harassment, preferably by crying; immediately resist the harassment by telling the man to stop; or promptly report the harassment to her employer or some other official person.(11) However, if a woman is too emotional, she may, be viewed as hypersensitive and therefore not credible, as if the problem is only in her head. If she resists the harassment too aggressively, she may be found to be the kind of woman who cannot be hurt by this behavior. If she reports the harassment, she may be characterized as vindictive and therefore not credible.(12)
As the victim's attorney, you will have to fight these expectations about what constitutes "reasonable" behavior. One tool to help you do this is the Everstine Trauma Response Index. The index is an instrument designed to measure thoughts and feelings about and reactions to frightening events.(13)
Of course, you will need experts to help the jury understand what your client has gone through and her reaction to the harassment. You may want to get experts on common responses to sexual harassment, gender differences in perceptions about sex in the workplace, and education and training on sexual harassment. Robinson v. Jacksonville Shipyards provides excellent examples of this kind of expert testimony.(14)
You will also need a psychiatrist or psychologist to evaluate damages. This expert should be a practicing clinician rather than an academician, have forensic experience, and be skilled in administering and interpreting psychological tests.(15)
Evaluating the Injuries
Evaluating your client's emotional distress begins with the initial interview. For many women, it is painful to talk about sexual harassment, and they do so only with great reluctance. When a woman talks about an incident of sexual harassment, she may, tell only part of the story, then add details with each retelling of the incident.
Many factors determine the gravity of the harassment and may affect the proof of damages. One of the most important factors is whether the conduct involved a serious physical assault, other physical touching, verbal abuse, or a combination of these.
In cases I have handled, when there has been physical touching of any kind, the damage to the woman is more extensive. In the workplace, a woman expects to be and should be treated with dignity. She is being paid for her professional abilities. As Professor Amy Kastely writes,
The devastating effect of workplace
sexual harassment on many women is
due in part to the fact that they are
subjected to subordination and degradation
so many other parts of life.
... For many women their jobs provide
one place of agency, of some
degree of integrity, of recognized competence
in their worlds. Sexual harassment
takes this away, leaving women
without any place to be.(16)
From a legal perspective, when the harassment has escalated to physical touching, the case is worth more because there is a clear basis for parallel tort claims, such as assault, battery, and false imprisonment.(17)
Other questions to answer include--
* How frequently was the conduct repeated? Was it continuous?
* Was it hostile and patently offensive? Was it physically intimidating? Was it demeaning?
* Was the harassment directed at more than one employee?
* Was the alleged harasser a co-worker or a supervisor?
This last factor involves the power of the harasser over the victim. If the harasser was a supervisor with the ability to affect employment decisions about your client, you must find answers to these questions as well:
* Were the harasser's threats explicit (for example, "Sleep with me or you're fired"--a quid pro quo situation)? Or did he imply that he would use his supervisory powers against her if she refused his advances?
* Were retaliatory measures taken against the victim by the harasser or at his direction?
* Are there objective reasons for adverse employment actions taken against her? (Examine her personnel file, especially performance evaluations. Were the evaluations positive until she rebuffed the harasser?)
* Did the employer fail to follow the usual procedures in making employment decisions about the victim?
* How long did the victim work for the employer?
* How badly did she need the job?(18)
Retaliation is important because it demonstrates the harasser's intent to use power to control and humiliate the victim. It goes to punitive damages because it clearly establishes the maliciousness of the harasser and, in some cases, the employer.
Evaluating damages becomes more complicated if your client had prior emotional difficulties. These problems may have left her especially vulnerable to the trauma of sexual harassment. However, a person's preexisting susceptibility to emotional harm is not relevant in determining an award for emotional damage in a discrimination case.(19)
Courts have held specifically that preexisting mental conditions are irrelevant in discrimination cases involving post-traumatic stress disorder (PTSD). For example, in Valdez v. Church's Fried Chicken, Inc., a fast-food worker brought an action alleging sexual harassment under state law and Title VII.(20) The worker was constantly subjected to unwanted advances at work by her supervisor. These advances culminated in at least one attempted rape. She was ultimately dismissed from work. Later, she was diagnosed as suffering from PTSD as a result of these incidents.
The plaintiff had serious marital and other problems, including some that went back to her childhood. The court found that these prior psychological problems contributed to her generally poor state of mental health and may have made her more vulnerable to the harassment. However, the court recognized that no evidence showed PTSD existed before her employment or that it was a latent condition resulting from her prior psychological problems.
The court found that it was reasonably foreseeable that a victim of an attempted rape would suffer mental anguish, even if the particular form of mental anguish--PTSD--was not understood by the defendant. Moreover, the court recognized that it was well-settled law that the defendant need not foresee the particular injury suffered as long as it is the type of injury that would be normally foreseeable.(21)
As the plaintiffs advocate, you will need to show that what was "wrong" with her before the harassment occurred is not what is "wrong" with her now.(22) "Moreover, it is possible that a history of experiencing trauma may have a multiplying effect on the current reaction, instead of an additive one (e.g., symptom A was raised to [A.sup.2] by a second traumatic event, and to [A.sup.3] by the instant event)."(23)
Certainly, damages are affected by the behavior of the employer in allowing or even condoning the sexual harassment as well by the behavior of the individual harasser. Employers can be held liable for failing to respond appropriately to an employee's complaints of sexual harassment.
The first U.S. Supreme Court case finding employer liability in a hostile environment situation was Meritor Savings Bank v. Vinson, in which the Court distinguished between quid pro quo and hostile environment cases.(24) The Court held that under Title VII of the Civil Rights Act of 1964,(25) employers are strictly liable for harassment by a supervisor in quid pro quo cases. This is because agency principles impute notice of supervisory harassment to an employer.(26) However, the Court rejected the notion of strict liability in hostile environment cases, recognizing that agency principles "may not be transferable in all the particulars to Title VII."(27)
Nevertheless, the Court stopped short of requiring notice: "Absence of notice to an employer does not necessarily insulate that employer from liability."(28) Nor does the existence of a grievance procedure and a policy against discrimination preclude a finding of liability.(29)
Some states do not make the Court's distinction between quid pro quo and hostile environment cases, but apply strict liability in both. For example, under Hawaii regulations the fact that the supervisor's actions violated company policy is not a defense in a hostile environment case, nor does it matter whether the employer knew of the act.(30)
Employers are expected to take prompt and corrective action against perpetrators of sexual harassment.(31) When representing a victim, you need to investigate the following aspects of the employer's behavior:
* Did the employer have a sexual harassment policy and offer training on the subject? Does anyone enforce the policy? Who investigates complaints?
* Did the victim report the harassment to anyone, either verbally or in writing? If not, is that because the employer lacked a grievance procedure or because the procedure required her to report the incident to the harasser? If the victim did report the harassment, did the employer ignore her complaints or dismiss them as a personal problem?
* Are there any corroborating witnesses? Can fellow employees confirm the harasser's behavior and the employer's response? Can family members describe the effect on the victim?
* Was the harassment so pervasive that the employer knew or should have known about it? Are there similar incidents by the same perpetrator (a "pattern and practice")? Are there other lawsuits pending against him?
* Are there problems between men and women throughout the workplace? Had other women complained about harassment by the same man and/or other men? Is there a pattern of discrimination that keeps women out of high-level management positions?
* When did the harassment stop? Was the harasser adequately disciplined--and if necessary terminated? Sometimes the mere presence of an employee who has engaged in particularly severe or pervasive harassment can create a hostile work environment.
Title VII provides traditional civil rights remedies for sexual harassment. The Civil Rights Act of 1991 added new ones.
The 1991 act allows for a jury trial when compensatory and punitive damages are sought under Title VII.(32) The act caps the amount of compensatory and punitive damages depending on the number of employees the defendant has: 15 to 100, up to $50,000; 101 to 200, up to $100,000; 201 to 500, up to $200,000; more than 500, up to $300,000.(33) The jury cannot be informed of the limitation on damages.
Beware: Under federal law, compensatory and punitive damages may only be recovered in cases involving intentional discrimination.(34)
Many state fair-employment-practice statutes do not limit damages. Also, keep in mind that a workers' compensation claim or remedy does not necessarily bar relief under these statutes.(35)
Compensatory and punitive damages awards in sexual harassment cases vary greatly.(36) When calculating your client's damages, you must include both psychological and nonpsychological injuries.
A therapist should help you assess the psychological injuries by evaluating your client's reactions to the harassment. Some reactions might be physical, such as weight loss. Others might be emotional, such as anger, loss of confidence, guilt, sadness, and/or an inability to concentrate.
You should work with an economist to evaluate nonpsychological damages. This expert should calculate what your client lost financially, especially in terms of front pay, if she cannot find work or if she finds a new job at a lower pay rate. There will probably be a large wage differential if your client had to take a lesser position on the same career track or even start a new career because she feared returning to the same job environment. This is especially true if it was a male-dominated field.
Under Title VII and most state civil rights laws, your expert's calculations should include back pay, lost benefits, and front pay when reinstatement of your client is impossible.
Another approach to calculating damages is to assign a dollar amount to every specific act of harassment, including kissing, touching, grabbing of intimate body parts, and so on. This graphic, specific listing usually shocks the other side and aids in settlement. It also clarifies for you exactly what your client has endured. You can then begin to understand how the harassment has affected her--why, for example, she began to have frequent nightmares, developed insomnia, and became afraid to be alone with almost any man.
The harm caused by sexual harassment can be severe and long-lasting. Victims suffer both professionally and personally. Your task as the victim's attorney is to identify the obvious and subtle ways in which harassment has injured your client, then use the techniques described here to prove the damages. Although no settlement or verdict can remove the pain of the victim's experience--the humiliation, the degradation, the oppression--fair compensation and your belief in her can give her the satisfaction of knowing that justice does exist.
(1) ALBA CONTE, SEXUAL HARASSMENT IN THE WORKPLACE: LAW AND PRACTICE 268 (1990 & Supp.). (2) Brief for Amicus Curiae, American Psychological Association, Harris v. Forklift Sys., Inc., 114 S. Ct. 367 (1993) (citing Mary P. Koss, Changed Lives: The Psychological Impact of Sexual Harassment, in IVORY POWER, SEX AND GENDER HARASSMENT IN THE ACADEMY 78, 80 (Michele A. Paludi ed. 1990); Frances S. Coles, Forced to Quit: Sexual Harassment Complaints and Agency Response, 14 SEX ROLES 81, 86-92 (1986); Peggy Crull, Stress Effects of Sexual Harassment on the Job, 52 AM. J. ORTHOPSYCHIATRY 539, 541 (1982)). (3) Harris, 114 S. Ct. 367. (4) See, e.g., Ellison v. Brady, 924 F.2d 872, 880 (9th Cir. 1991) (victim received "bizarre" love letters from co-worker); Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486 (M.D. Fla. 1991) (victims were subjected to photographs that showed nude women). (5) 114 S. Ct. 367. (6) 976 F.2d 733 (6th Cir. 1992). (7) 114 S. Ct. 367, 370. (8) Id. at 371. (9) Id. (10) Id. (11) Amy Kastely The Reasonable Woman Standard: An Opportunity for Improvement in the Law, HAW. INST. CONTINUING LEGAL EDUC. 5 (Feb. 12, 1993). See generally DEBORAH TANNEN, YOU JUST DON'T UNDERSTAND (1990) (describing differences between men and women in conversation); BARBARA GUTEK, SEX AND THE WORKPLACE (1985) (discussing men's and women's attitudes about sexuality in the workplace). (12) Kastely, supra note 11, at 5. (13) DIANA S. EVERSTINE & LOUIS EVERSTINE, THE TRAUMA RESPONSE (1993). To obtain a copy of the index, write to Dr. Louis Everstine, Associated Psychologists, 555 Middlefield Rd., Palo Alto, CA 94301. (14) 760 F. Supp. 1486. (15) Louis Everstine, Choosing an Expert on Emotional Injury, ATLA EMPLOYMENT RTS. SECTION NEWSL., Nov. 1993, at 4. (16) Kastely, supra note 11, at 3. (17) See Douglas A. Hedin, Assessment of Damages in Sexual Harassment Litigation: A Plaintiff's Perspective, MINN. INST. LEGAL EDUC. (Mar. 1, 1991), reprinted in EMPLOYEE ADVOC., Spring 1991, at 34, 47. For a detailed analysis of these and other legal claims in sexual harassment cases, see Elizabeth J. Fujiwara, Sexual Harassment and Litigation Strategies: Plaintiff Attorney's Perspective, HAW. INST. CONTINUING LEGAL EDUC. 35-64 (Feb. 12, 1993), reprinted in EMPLOYEE ADVOC., Summer 1993, at 24. (18) See, e.g., Richard Segerblom & Kristina S. Holman, Sexual Harassment Cases: What To Look For, EMPLOYEE ADVOC., Fall 1992, at 10. (19) Brown v. Trustees of Boston Univ., 674 F. Supp. 393, 394 (D. Mass. 1987). (20) 683 F. Supp. 596 (W.D. Tex. 1988). (21) See also WILLIAM A. BARTON, RECOVERING FOR PSYCHOLOGICAL INJURIES 27-31 (1985). (22) Everstine, supra note 15, at 4. (23) Id. (24) 477 U.S. 57 (1986). (25) 42 U.S.C. [section] 2000e (1988). (26) 477 U.S. 57, 70. (27) Id. at 72. (28) Id. (29) Id. at 72-73. See also CONTE, supra note 1, at 60. (30) Title 12, DEP'T LABOR & INDUS. RELATIONS, Ch. 46, HAW. ADMIN. RULES [section] 12-46-109(c) (1991). (31) Ellison, 924 F.2d 872, 881-83. (32) 42 U.S.C. [section] 1981a(c) (Supp. Ill 1991). (33) Id. [section] 1981a(b). (34) 42 U.S.C. [section] 1981a(a)(1) (1988). (35) See, e.g., HAW. REV STAT. [section] 368-17(b) (Supp. 1992). See also Alba Conte, State Remedies for Sexual Harassment at Work, TRIAL, Nov. 1993, at 56. (36) See, e.g., Stockett v. Tolin, 791 F. Supp. 1536 (S.D. Fla. 1992) (plaintiff awarded $250,000 in compensatory, damages and $1 million in punitive damages); Priest v. Rotary, 634 F. Supp. 571 (N.D. Cal. 1986) (plaintiff awarded $95,000 in compensatory damages and $15,000 in punitive damages); Bihun v. AT&T Info. Sys., Inc., 16 Cal. Rptr. 2d 787 (Ct. App. 1993) (upholding compensatory, damages of $1.5 million and punitive damages of $500,000).