Bringing Sexual Harassment Cases: A Practical Approach
By Jody L. Newman
Send E-mail to: jnewman@dwyercollora.com
This article first appeared in Massachusetts Continuing Legal Education: Labor and Employment Law Basics (1995), © MCLE, Inc.
I. Introduction
Recent high profile legislation mandating written sexual harassment policies in Massachusetts workplace1 and high profile cases, such as Paula Jones v. William Jefferson Clinton and the Army rape scandals, have kept sexual harassment in the local and national spotlight. Less prominent are the legal hurdles plaintiffs face and the high personal price extracted by sexual harassment litigation. And, while the potential for large awards certainly exists, it was recently reported2 that the median emotional distress jury award in sexual harassment cases from 1990-1996 was $79,500, with a probability range of $25,000 to $129,855.
When consulted by a woman3 who has experienced sexualized conduct in the workplace, it is critical for the lawyer to carefully analyze whether the client has a viable sex discrimination claim (sexual harassment is a form of sex discrimination) and whether it is a claim worth litigating. This article highlights some of the significant issues and practical considerations that shape the decision whether to bring the claim, while the companion article by Richard Ward, Esq. focuses on the law of sexual harassment.
II. Is There A Case?: Common Liability Issues
A. Understanding What Sexual Harassment Is and What It is Not.
Actionable sexual harassment, in a nutshell, is "unwelcome sexual conduct that alters a term and condition of employment." Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986) (ratifying 1980 EEOC guidelines). Two types of sexual harassment claims are recognized under both Title VII and M.G.L. c. 151B: (1) quid pro quo and (2) hostile environment. The former and most obvious form of sexual harassment is where a supervisor conditions a job benefit on the receipt of sexual favors or retaliates for refusal to comply. The latter can be more subtle and involves pervasive conduct which creates an intimidating, hostile or offensive workplace even though no tangible economic injury results. A hostile environment can be created by a factory decorated by nude pin-up posters (see, e.g., Robinson v. Jacksonville Shipyard, Inc., 760 F.Supp. 1486 (Fla. 1991) or by a manager who regularly demeans the female staff although not all of his comments are explicitly sexual in nature. See Lipsett v. Univ. of Puerto Rico, 864 F.2d 881 (1st Cir. 1988). In reality, the distinction between the two kinds of sexual harassment often blurs. For instance, an employee may reasonably believe that by rebuffing her supervisor's obvious romantic interest in her, she will ruin her chance for advancement, causing her to resign, though no such threat was actually made. Her case could be described as both quid pro quo and hostile environment harassment.
Sexual harassment is not the occasional off-color joke or sexual innuendo in the office as the conduct must be sufficiently pervasive to alter the terms of employment from an objective perspective. Harris v. Forklift Systems, Inc., 114 S. Ct. 367, 370 (1993).4 However, there is no numerosity requirement. For instance, a single incident of groping may well satisfy the objective standard because of the egregious nature of the conduct. Moreover, sexual harassment is not actionable no matter how objectively offensive the conduct, unless the plaintiff found it subjectively so at the time. See Ramsdell v. Western Massachusetts Bus Lines, Inc., 415 Mass. 673 (1993) (plaintiff’s active participation in and instigation of very explicit sexual "horseplay" defeated her claim that she was humiliated by the defendants’ actions).
It is essential to understand the legal analysis in sexual harassment cases. The harassing conduct may be outright denied, but, more often than not, the dispute centers on whether the conduct meets the legal standards for actionable sexual harassment.
B. Showing Unwelcomeness
Central to establishing liability is the ability to show that the complained of conduct was unwelcome at the time.5 Rarely disputed in quid pro quo cases or where there is physical touching, unwelcomeness is commonly disputed in hostile environment cases. There are no hard and fast rules: courts instead look at the totality of the circumstances, with the victim's behavior at the time often being the most significant factor.
Did the victim complain to management personnel? If there is no contemporaneous complaint and the claim is first made in the context of an adverse job action, you can be sure that "unwelcomeness" will be vigorously contested. However, as reflected in the EEOC guidelines, the lack of complaint alone does not demonstrate that the conduct was welcome. The guidelines recognize fear of reprisal as a legitimate reason not to complain. Other reasons why a sexual harassment victim may not complain include the lack of an anti-discrimination policy, embarrassment, self-blame, and a sense of futility, particularly where the harasser is powerful in the workplace.
Did the victim tell the harasser that his conduct was unwelcome? There are some situations where the victim may have the responsibility of telling the harasser that his behavior is unwelcome, in other situations, a woman's silence,6 i.e., consistent failure to respond to advances, should be sufficient to communicate unwelcomeness. See Lipsett v. Univ. of Puerto Rico, supra at 898. According to the EEOC guidelines, an employee, who once willingly participated in conduct of a sexual nature, must clearly notify the alleged harasser that the conduct is no longer welcome.
What was the victim's workplace demeanor? The employer will always scrutinize the plaintiff's workplace behavior in an effort to show welcomeness or show that the behavior now deemed offensive had no impact on her job. Every profanity the plaintiff ever uttered, every dirty joke the plaintiff told or laughed at, every intimacy shared by the plaintiff will be dredged up. However, it is always a matter of context. Where the harassment is substantial or egregious, it should not matter that the plaintiff swore at work. See Carr v. Allison Gas Turbine Div., 32 F.3d 1007 (7th Cir. 1994) (court rejected defense that female factory worker’s use of profanity "provoked" male workers to harass her given women’s minority status in the workplace and the more serious nature of the male’s harassment); Rosati v. Town of Warren, 19 MDR 34 (1977) (complainant’s occasional joking with respondent and acceptance of a ride home with him does not mean she invited a barrage of sexual remarks and touching). On the other hand, where the plaintiff enthusiastically participated in or initiated the conduct of which she now complains, the plaintiff is likely to lose. See Ramsdell, supra. It is important to have a sense of the plaintiff's workplace demeanor as early as possible and certainly before her deposition. Moreover, it is advisable not just to rely on your client's account, but also to interview co-workers to whom you have access.
C. Establishing The Employer's Liability
Unless the individual harasser is wealthy with reachable assets, the liability of the employer is crucial. Employer liability depends on the harasser's status, the type of harassment, and whether you are proceeding under state or federal law.
1. Strict supervisory liability
Under Title VII, an employer is strictly liable for the quid pro quo harassment of its supervisory personnel. Kauffman v. Allied Signal, Inc., Autolite Div., 970 F.2d 178, 183 (6th Cir. 1992), cert. denied, 113 S. Ct. 831 (1992). Under Massachusetts law, strict supervisory liability extends to hostile environment harassment as well. College-Town Division of Interco, Inc. v. MCAD, 400 Mass 156, 166-67 (1987). Strict liability has been applied to a high level manager not in the plaintiff’s chain of command, Johnson v. Plastic Pkg., Inc., 882 F. Supp. 25 (D. Mass. 1995) and to an employee who was not the plaintiff’s direct supervisor, but who exercised supervisory authority over the plaintiff. Messina v. Araserve, Inc., 906 F.Supp. 34 (D. Mass. 1995).
Even if the harasser is not in fact a supervisor, consider an apparent authority argument. An employer has been held liable under a theory of apparent authority where the plaintiff "had every reason to believe" that the harasser was her supervisor and where the company did nothing to indicate otherwise. See Przybcien v. AID Maintenance Co., 13 M.D.R.L. 1266, 1281-82 (1991).
2. Agency liability
With respect to hostile environment harassment under federal law and co-worker harassment under Massachusetts law, employer liability turns on common law agency principles. Accordingly, the employer is liable only if it knew or should have known about the harassment and failed to take prompt remedial action. See Meritor Savings Bank, 477 U.S. at 72-73; Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429 (1st Cir. 1997). Thus, in a hostile environment case under federal law or with non-supervisory harassment under Massachusetts law, if your client complained to management and a prompt and reasonable investigation and appropriate remedial action followed, there is no employer liability.
D. Remember The Statute of Limitations
To successfully raise sexual harassment claims, plaintiffs must comply with the six month statute of limitations imposed under G.L. c. 151B and Title VII (180 days in Massachusetts). A triology of 1996 SJC decisions clearly establish that c.151B, where applicable, is the exclusive remedy for sexual harassment and such claims cannot be recast as torts or other statutory claims. See Doe v. Purity Supreme, 422 Mass. 563 (1996) (exclusivity provisions of G.L. c. 151B and the Workers’ Compensation Act barred employee who was raped by supervisor at work from pursuing claims under Civil Rights Act, Equal Rights Act and G.L. c. 214, § 1C and tort claims); Green v. Wyman-Gordon Co., 422 Mass. 551 (1996) (sexual harassment plaintiff who did not file an MCAD complaint within six months could not bring claims under G.L. c. 214, § 1C, the Civil Rights Act, the Equal Rights Act or common law tort claims); Guzman v. Lowinger, 422 Mass. 570 (1996) (G.L. c. 214, § 1C provides the exclusive remedy for sexual harassment against an employer with fewer than six employees). Under the continuing violation theory, conduct which occurs outside of the limitations period should be considered, provided at least one unlawful incident occurred within the limitation period. See Muniz v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994); Lynn Teachers Union, Local 1037 v. MCAD, 406 Mass. 515 (1990).
III. Is It Worth It?: Benefits And Risks Of Litigation
A. Issues of Proof
Frequently there are no witnesses to the harassment and "he said/she said" frames the battle. Even without corroborating witnesses, the plaintiff's credibility can be bolstered by evidence that she told co-workers, friends or family about the harassment, recorded it in a diary or journal, or referred to it in correspondence or electronic mail exchanged between the parties. In addition, look for evidence that others were harassed. This type of behavior rarely occurs in isolation and the specter of other victims impacts not only on the harasser's liability, but on the employer's as well. Pattern and practice evidence is widely admissible in discrimination case. See Conway v. Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987). Attempt to interview and lock in witnesses as early as possible and certainly before suit is filed. It is not uncommon for supporting coworkers to lose their nerve and, once counsel appears, the issue of direct contact may arise. See new Massachusetts Rules of Professional Conduct Rule 4.02 (replacing SJC Rule 7-104(A)(1) as of January 1, 1998, attached); Siguel v. Trustees of Tufts College, 52 Fair Empl. Prac. Cas. (BNA) 697, 699 (D. Mass. 1990); Morrison v. Brandeis Univ., 125 F.R.D. 14, 18-19 (D. Mass 1989) (Collings, U.S.M.).
B. Prepare Your Client For The Attack on Her Credibility
As in sexual assault cases, in sexual harassment cases where the stakes are high and there are no witness, the strength of the attack on the plaintiff's credibility cannot be underestimated. Anticipate rigorous scrutiny into the victim's private life, including alcohol/drug use, sexual history and psychiatric history and be prepared to protect your plaintiff as much as possible. See e.g., Priest v. Rotary, 98 F.R.D. 755 (N.D. Cal. 1983) (discussing chilling effect of allowing discovery of plaintiff’s sexual conduct outside the workplace). The discoverability of psychiatric records where emotional distress damages are claimed is an open question in most cases. Compare McMillan v. Society for the Prevention of Cruelty to Animals, No. 92-11178 (D. Mass. filed on Nov. 2, 1993) (Stearns, J.) and Tauro v. A. George & Sons, Inc., No. 95-2757-L (Middlesex Sup. Ct. July 17, 1996) (Gershengorn, J.) (allowing psychiatric discovery) with Sabree v. United Brothers of Carpenters & Joiners, 126 F.R.D. 422 (D. Mass. 1989) and Vanderbilt v. Town of Chilmark, No. 95-12403 (D. Mass. 1997) (Tauro, J.) (disallowing psychiatric discovery).7 Counsel opposing this kind of discovery should always have an alternative request to limit persons present at a deposition and dissemination of testimony and documents. See DeLuca v. Gateways Inn, Inc., 166 F.R.D. 266 (D. Mass. 1996).
Clients should understand from the start that while every effort will be made to settle the case, some employers will dig in their heels and fight and it is difficult to accurately predict which ones will do so. In that event, there is nearly always a significant disparity in resources and a company that has chosen to fight will likely spare no expense in an effort to wear the plaintiff down. This kind of protracted and emotionally charged litigation extracts a high price -- financially, emotionally, and sometimes professionally -- on victims and their families. But in good cases, the plaintiff and counsel should persevere as it may simply take longer to obtain a victory through an eleventh hour settlement or a verdict.
On the positive side, litigation provides benefits for many victims regardless of ultimate vindication. The victim may feel empowered and find her self-esteem restored by simply doing something about the injustice. In addition, through litigation, the victim may cause positive changes in the employer's policies and practices or succeed in removing or subduing the harasser so that no other woman will endure what the plaintiff did, something important to many victims.
C. Evaluate Damages
Notwithstanding the large awards publicized and that compensatory damages, punitive damages, and attorneys' fees are now available to the prevailing plaintiff under state and federal law, sexual harassment claims can be financially risky. Without tangible economic injury, the value of the case is often the measure of the resulting emotional distress. Although the Supreme Court has held that the victim need not have a nervous breakdown to recover damages under Title VII, See Harris, 114 S. Ct., at 370-71, the apparently strong and functioning victim (more typical than emotional wreck victim), may find it difficult to adequately convey her pain to a jury. Obviously, cases with egregious or protracted conduct or involving physical touching have a higher value than cases where the harassment was brief, offensive verbal conduct. In May of 1996, a federal jury awarded a Wellesley College kitchen worker $250,000 for sexual harassment by a manager which included lewd comments, rubbing against her and threats about her job. In March of 1996, an Essex County jury awarded $650,000 ($150,000 compensatory damage and $500,000 punitive damage) to a police officer sexually harassed and retaliated against for over a three year period.
The goals of the litigation should be clearly defined from the start: is it compensation, remedial action, protecting others, vindication? A clear understanding of the client’s expectations and the limits of the process prior to becoming embroiled in litigation saves everyone a great amount of frustration.
D. Consider Alternative Dispute Resolution
Because of their highly charged nature, sexual harassment cases are often particularly amenable to mediation where the emphasis shifts from who said or did what to how to end it. If at all possible, a settlement through negotiation or mediation should always be explored before filing because of the confidentiality factor. The defendant's strong desire for confidentiality may drive a substantial settlement in a case that might otherwise be difficult to prove. Ending a case after it has barely begun confers a tremendous advantage on all parties: the plaintiff is compensated and remedial action achieved without lengthy, risky litigation; the defendant preserves its professional reputation; and everyone saves time, money and energy.
Also, consider litigating your case in the MCAD. Although the MCAD lacks authority to award punitive damages and emotional distress awards have traditionally been on the low side, two recent awards of $250,000 in sexual harassment cases suggests that trend may be changing.
IV. Conclusion
In a particularly debilitating way, sexual harassment serves to exclude women from full and equal participation in the workplace. Bringing sexual harassment claims has an important role in reducing the use of sex to humiliate, demean, or even extort women on the job. Although the law may seem hopelessly murky and the case fraught with risks, carefully weeding out the substantial cases from the marginal ones greatly improves the chances of success.
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Footnotes:
1 M.G.L. c. 151B § 3 effective November 6, 1996 for employers of 15 or more and January 1, 1997 for employers of 6 or more, also encourages sexual harassment education and training.Back to Reference
2 The survey was published by Jury Verdict Research. Back to Reference
3 Men can be sexually harassed by their female supervisors and such claims have been brought. However in my experience, the overwhelming majority of victims are women, who remain less likely than men to hold position of status and authority at work.Back to Reference
4 Some courts apply a reasonable woman test rather than reasonable person test recognizing that certain conduct at the workplace may skew the playing field for female workers and not male workers. Elison v. Brady, 924 F.2d 872 (9th Cir. 1991).Back to Reference
5 The standard is not voluntariness or consent. In Meritor Savings Bank, the Supreme Court held that an employee's voluntary participation in sexual relations with her supervisor did not bar her recovery for sexual harassment if the sexual advances were unwelcome. Meritor Savings Bank, 477 U.S. at 68.Back to Reference
6 For an interesting discussion on the prevalence of silence in response to sexual harassment and its sociological roots, see Lester, Should Courts Penalize Harassment Victim Who Adopt Passive Coping Strategies?, June 1995 Labor Law Journal at 323.Back to Reference
7 In Vanderbilt, Judge Tauro ruled that waiver of the federal patient psychotherapy privilege occurs only when the plaintiff seeks to introduce the substance of her communications with her therapist and not upon the filing of an emotional distress claim alone.Back to Reference