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Frequently Asked Questions

Hostile Environment Sexual Harassment

A hostile work environment occurs when a person is subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to such an extent that it alters the conditions of the person's employment or creates an abusive working environment. In a hostile work environment, the harasser may be a woman or a man. He or she can be the victim's co-worker or supervisor. Most laws also require employers to protect their employees from harassment by vendors, independent contractors, customers and others. Where an employer becomes aware of a hostile work environment and fails to take remedial action, that employer may be held liable whether or not the harasser is an employee. Harassment that constitutes a hostile environment is any conduct based on sex that becomes sufficiently severe that it creates fear, intimidates, ostracizes, psychologically or physically threatens, embarrasses, ridicules, or in some other way unreasonably over burdens or precludes an employee from reasonably performing his/her work duties. Conduct that may constitute sexual harassment include the following unwelcome acts:
  • Sexually Explicit E-mails o Sexually explicit flyers
  • Sexual innuendos o Sexual propositions 
  • Sexual threats o Sexual insults 
  • Obscene jokes o Lewd remarks 
  • Demeaning names 
  • Unwelcome touching
  • Sexual sounds
  • Viewing websites and videos
  • Cat calls o Work sabotage to intimidate 
  • Physical contact of a sexual nature Requests for sexual favors, sexual inquiries or demands
  • Offensive and inappropriate language 
  • Other conduct of a sexually degrading nature 
  • Explicit pictures displayed in plain view or emailed

In evaluating hostile work environment sexual harassment, courts often look at the frequency, severity, nature of the harassment as well as the power relationship between the harasser and the victim to judge whether the conduct is sufficiently severe to alter the victim’s work environment. Only the hostile environment harassment that meets this threshold can support a sexual harassment lawsuit. As a result, isolated incidents of a trivial nature typically are insufficient to support a lawsuit.

Sexual Harassment - Receiving A Complaint

Where a sexual harassment complaint has been made, a thorough investigation coupled with appropriate disciplinary action, if complaint is established, is an employer’s best defense to sexual harassment lawsuits. When combined with a good, well-disseminated sexual harassment policy with a clear complaint mechanism that by-passes that alleged harasser, employers are adequately prepared to defend harassment claims.

Employer Liability - Sexual Harassment Laws

The law under which a sexual harassment case is brought is a significant determining factor as to employer liability. Under some laws, an employer is held strictly liable for the conduct of supervisory and managerial employees and harassment by nonsupervisory employees are treated differently. A different statute, forum or administrative agency may afford an employer a defense even in the case of supervisor sexual harassment. However, an employer is held strictly liable in cases of Quid Pro Quo sexual harassment under most laws if the victim loses a tangible job benefit.

The different laws and statutes provide for damages that differ which likely affects a company’s evaluation of the case. For example, some laws only permit recovery of actual and out-of pocket damages while others permit recovery of punitive damages, compensatory damages and attorney’s fees. A jury is also not provided by all of the different laws and statutes. Whether the case is tried to a judge or a jury significantly impacts an employer’s evaluation of the case.

The total number of employees that an employer has often determines what laws apply to them at all. Similarly, where damages are capped, the number of employees typically determines the total amount of damages that a particular employer would be exposed to in the event of a verdict on behalf of the victim.

To understand an employer’s possible financial exposure requires a thorough analysis of the forum where the charge of discrimination is filed as well as the court or administrative agency where the case is pending.

Before you File a Charge - Sexual Harassment Checklist

Employee Sexual Harassment Case Questionnaire

Here is a list of questions that an employment attorney may ask during a sexual harassment consultation:

  • How long have you worked with this employer? 

  • Were you treated differently or harassed because of your sex? 

  • Describe in detail, dates, nature and particulars of each incident of sexual harassment or hostile work environment.

  • Describe in detail each sexually offensive comment, picture, e-mail or requests that you were subjected to.

  • Describe in detail each comment of a derogatory nature with particulars, dates and witnesses.

  • Position of the harasser. Is the harasser in supervisory position? Describe the job duties of the alleged harasser to determine his level of authority.

  • Did the sexual harassment include physical contact. If so, describe in detail each such conduct.

  • Names of each person who may have witnessed any of the sexual harassment.

  • Did you participate or encourage any of the misconduct?

  • Has this harasser sexually harassed other workers? Identify all other victims.

  • Were any members of management around to witness any of the sexual harassment?

  • Does your employer have a sex discrimination or sexual harassment policy and have you read it? 

  • Did you follow your employer's policy in reporting the sexual harassment and any other steps? 

  • Did you report the sexual harassment to your union? 

  • When you reported the sexual harassment to management, what action did they take, if any

  • Names of each person who was interviewed by management as a result of the sexual harassment complaint.

  • After you reported the sexual harassment to management, did the sexual harassment cease? 

  • Did management handle your sexual harassment complaint in an efficient and professional manner? 

  • Was anyone disciplined or transferred as a result of your complaint of sexual harassment?

  • After you reported sexual harassment to management, were you subjected to any form of retaliation or punishment for having complained? Describe in detail.

  • Did you suffer any financial losses as a result of the discrimination or sexual harassment? For example, lost wages, benefits, time at work, emotional distress, etc. 

  • Did you seek medical treatment or counseling as a result of the sexual harassment? Names of your physicians, counselors and therapists.

  • A list of your witnesses.

  • How is your work performance otherwise? 

  • How do you think that the matter should be resolved?

Quid Pro Quo Sexual Harassment

Quid pro quo sexual harassment generally occurs when a benefit of employment is conditioned upon a sexual favor. A classic example of quid pro quo sexual harassment is where a boss demands a sexual favor and threatens termination if refused.

Requests for sexual advances that are tied to employment benefits or employment decisions are of the quid pro quo form. Employment benefits or decisions include matters such as promotions, demotions, raises, work benefits, performance evaluations, bonuses, overtime assignments, work schedule changes, transfers, inferior work assignments, and such.

Conducting a Sexual Harassment Investigation

A thorough sexual harassment investigation typically involves the following steps:

  • Placing the alleged harasser on suspension status immediately to prevent interference with the investigation
  • Detailed interview of the victim supported by a written statement
  • Detailed interview of the harasser
  • Documented interview of witnesses to the alleged sexually offensive conduct
  • Documented interview of other employees who have worked with the individual accused of sexual harassment
  • Written and signed statements should be taken from the individuals interviewed. Each person interviewed should be advised of the non-retaliation policy
  • A detailed summary of the investigation conclusion, and possible remedial action

Sexual Harassment - Filing a Charge

A discrimination or harassment claim must begin by the filing of a charge of discrimination with an administrative agency such as the EEOC. In Illinois, the Illinois Department of Human Rights, Cook County Commission on Human Relations or the Chicago Commission on Human Relations. Some agencies require that a charge be filed in person while others permit employees to submit charges that were prepared outside of the agency. Some of the agencies accept walk-ins while others such as the EEOC require that an employee make an appointment to come in and complete the charge information.

In any event, within about 10 days after a charge is filed, the administrative agency sends a copy of the charge to the employer and asks the employer to submit a written response within a certain number of days. The agency would then begin an investigation of the allegations in the charge.

Difference Between Hostile Environment and Quid Pro Quo Sexual Harassment

A key difference between hostile environment sexual harassment and quid pro quo sexual harassment is that employers are generally automatically liable in quid pro quo cases where the victim actually suffered a loss of an employment benefit. Furthermore, one instance of quid pro quo harassment may support a sexual harassment lawsuit.

In hostile work environment sexual harassment cases, employers may defend the lawsuit by claiming that the victim failed to complain to management thus depriving the employer an opportunity to remedy it. Furthermore, hostile environment sexual harassment cases must be severe or pervasive to support a lawsuit. As such, one isolated instance of non-intrusive sexual comment is insufficient to support a hostile work environment sexual harassment case. Quid pro quo harassment neither has to be severe or pervasive to support a harassment lawsuit.

There are differences in damages recoverable also. For hostile work environment cases, the damages are generally in the nature of emotional distress and mental anguish. Quid pro quo sexual harassment cases typically include elements of emotional distress/mental anguish damages as well as damages for the lost employment benefits that resulted from the rejection of the sexual advance.

Remedial Action/Discipline After Sexual Harassment Investigation

If the sexual harassment allegations are confirmed, an employer should consider the following steps to effect proper remedial/corrective action

  • Discipline should be imposed if allegations are confirmed
  • For an employer with a zero-tolerance policy, terminating the harasser may be only appropriate measure in compliance with the policy
  • If termination is not appropriate, then the following should be considered: demotion, unpaid suspension, transfer, shift change or pay reduction

Where to File a Charge of Sexual Harassment

There are several factors to consider in determining where best to file a charge. These factors include the type of harassment, the length of time that the discrimination and harassment were ongoing, the date of the last incident of discrimination, the nature of damages incurred, and whether a jury trial is sought. In addition, one must consider the cost of litigating in the various courts and administrative agencies. Generally, the federal court is the most expensive forum whereas agencies such as the Chicago Commission on Human Relations are the least expensive.

The EEOC generally accepts charges that are filed within 300 days of the discrimination complained of. Most of the other agencies require that charges be filed 180 days from the discriminatory action. Charges that are filed with the EEOC are likely to be litigated in federal court. After investigation, the EEOC issues a right-to-sue letter which permits the litigant to file suit in federal court within 90 days of receiving the letter. Federal court litigation can be expensive because of the various required court filings fees. In addition, the rules permit expensive discovery methods such as depositions, witness subpoenas and other extensive written discovery. Federal cases are typically tried in front of a jury and the judges enforce strict deadlines on litigants. Federal law permits litigants to obtain a broader range of damages such as compensatory damages and punitive damages as well as backpay, reinstatement, lost benefits and other all damages that resulted from the discrimination. Punitive and compensatory damages are capped depending on the number of employees that the employer has. Title VII damages against the largest employer is capped at $300,000.

The other administrative agencies such as the Illinois Department of Human Rights, Cook County Commission on Human Relations and Chicago Commission on Human Relations require that charges be filed within 180 days of the discrimination. They also accept a broader range of discrimination cases than the EEOC such as discrimination based on sexual orientation, financial status, arrest record, parental status, and such others. Charges that are filed with these agencies are litigated in front an Administrative Law Judge. No jury trial is available.

The potential damages to be recovered are limited when compared to cases brought in federal court. Generally, punitive damages are not awarded by these agencies and awards for mental anguish can be limited. However, these agencies award a full range of backpay, reinstatement and reimbursements for any lost benefits.. The key advantage of these agencies lies in the fact that they cover a broader range of discrimination and that litigation costs are minimal. These agencies typically charge no filing fees and allow depositions only in special circumstances. Discovery tools are limited to interrogatories, requests to admit, and production requests. Cases that have high backpay damages with minimal claims of punitive and compensatory damages are well suited for these agencies. Cases with significant potential for compensatory and punitive damages potential that require a jury trial are best suited for federal court.

Sexual Harassment Emotional Distress/Mental Anguish Damages

Sexual harassment, over time, can negatively affect the victimized individual. Some common side effects of sexual harassment include:

  • Crying spells
  • Decreased work performance
  • Increased absenteeism
  • Sleeplessness
  • Fatigue
  • Overall depressive mood
  • Excessive eating and/or drinking
  • Weight gain, weight loss, loss of appetite
  • Increased blood pressure 
  • Mood swings
  • Irritability
  • Strain on family relationships
  • Loss of sexual desire
  • Loss of the ordinary pleasures of life
  • Loss of trust in different environments 
  • Loss of trust in people 
  • Relocating to another city or state 
  • Loss of references or recommendations 
  • Headaches
  • Panic attacks and nightmares

    These symptoms are generally evaluated in determining mental anguish and emotional distress damages. The number, severity, duration of each of the symptoms generally form the basis of an award of damages.

Selecting an Investigator for Sexual Harassment Complaints

Employers must be careful to select an appropriate investigator in each situation because the decision who conducts the investigation often determines the course of the investigation and remedial action as well as the employer’s possible liability in the case. Many times, an employer’s defense to a sexual harassment lawsuit hinges on the conduct of its investigator.

In selecting the individual to conduct the investigation, an employer has to carefully evaluate the various issues that may affect that individual’s objectivity. Office politics, established relationships, unclean hands of an investigator, personal friendships and interdepartmental frictions are factors that may affect the objectivity an in-house investigator.

Some employers actually incur liability, not necessarily for the sexual harassment, but from an improperly conducted investigation. In many instances, an investigator who has a long-standing relationship with the individual accused of sexual harassment, uses his power as an investigator to retaliate against the individual complaining and her witnesses. Often, the employer’s upper management is unaware of these personal relationships (typically outside of work) until such is revealed during litigation. When such personal relationships or office politics are involved, investigations are often slanted in favor of the harasser and against the victim and her witnesses. I

In some instances, the victim and his/her witnesses are disciplined by the biased in-house investigator and no discipline is given to the harasser who is sometimes permitted to interfere with the investigation by intimidating witnesses and rounding up supporters for his cause. Mishandled investigations of this sort create difficulty for employers during litigation and could result in a guilty verdict and possible award of punitive damages. As such, the appropriateness of using an external investigator or law firm should be carefully evaluated.

Sexual Harassment Mediation Conference

Before starting the investigation, most agencies attempt to resolve the charge through a mediation process. The mediation is an informal process during which the employee and the employer’s representative meet face-to-face with a mediator to attempt to settle the case. Mediators are generally not employees of the agencies. Instead, they are mostly retired judges, attorneys, and others professionals that are trained in alternative dispute resolution. The mediation process is voluntary and neither the employer or employee is required to settle the case. As there are no judges present in the mediation, the employer and employee generally determine the terms of the mediation and can reach whatever agreement that is acceptable to both sides.

The mediation process is confidential. As such, nothing that is stated during the mediation process can be used during the court proceedings or investigation of the case. The person who acts as the mediator has no role in the future investigation of the charge or in the lawsuit. As such, if mediation fails, the discussions held during the process do not have an impact on the ultimate determination of the case. Most mediators require that all participants sign a confidentiality agreement before the mediation begins. If a settlement is reached during the mediation, the terms of the agreement are generally summarized into a lengthy settlement agreement which the parties have to sign in order to complete the settlement.

Assault and Battery With Sexual Harassment

Sexual harassment victims that were also touched and placed in fear of imminent offensive bodily contact may also sue for assault and battery under state law. Battery requires proof that the victim was subjected to an offensive bodily contact. Assault requires proof that the victim was placed in fear or apprehension of imminent offensive physical contact. In other words, the victim must prove that the harasser’s actions caused her to be in fear of imminent battery--offensive bodily contact.

To prove assault and battery, a victim must show that he/she did not invite or consent to the assault and battery. Assault and battery claims have a different measure of damages from sexual harassment cases. Furthermore, the cap on damages in some civil rights statutes do not apply in assault and battery cases, resulting in possible payment of larger damages to the victim.

Additionally, some civil rights statutes only permit lawsuits against employers and not individuals. With assault and battery however, the harasser can be sued individually. Some laws also permit assault and battery suits against the employer where the employer condoned, participated in, or encouraged the assault and battery. Punitive damages are also sometimes allowed in assault and battery cases.

Evaluating An In-House Investigator for Sexual Harassment Complaints

Where an employer chooses to use an in-house investigator, it may be prudent to select a manager from a different branch who has minimal contact with the employees in the office where the harassment occurred. First, employee witnesses are likely to view a manager from a different office as more objective. Second, a manager from a different office is likely not to be affected by the local office politics. He/she is also likely not to have established relationships that may affect his objectivity in investigating and recommending discipline. Other criteria to review in evaluating an in-house investigator follow:

  • Relative Position in the Organization (the higher, the better)
  • Understanding of Sexual Harassment and Retaliation Laws
  • Knowledge of Employer’s Sexual Harassment Policy
  • Knowledge of the Employer’s Discipline Policies
  • Knowledge and Training on Conducting Investigations
  • Overall Objectivity, Fairness and Impartiality
  • Good Understanding of Conduct that Amounts to Retaliation
  • Ability to Devote Sufficient Time To Witness Interviews
  • Overall Tact and Ability to Gain the Trust of Employees
  • Ability to Communicate Findings to Upper Management Objectively
  • Ability to Maintain Confidentiality of Sensitive And Personal Matters Acquired During The Investigation

Sexual Harassment Agency Investigation

If the case does not resolve through mediation, the agency where the charge was filed will assign the case to an investigator who will begin a formal investigation of the allegations in the charge. The investigator is not made aware of any facts that were discussed during the mediation conference. Mediators also do not act as investigators. This ensures that the individual investigating the case is not influenced by the mediation conduct of the parties.

Investigators use a variety of tools to determine whether the employer discriminated against or harassed the employee. They speak to co-workers, managers, and supervisors. They also request documents, obtain witness statements and interview company officials. In some cases, the investigator will issue subpoenas to obtain documents necessary to reach a decision. It is therefore important that the investigator be provided with names, addresses, and telephone numbers of all possible witnesses. It is equally important to provide the investigator with any important documents and other material that may help him determine whether the employer violated any laws. The investigator may also need the names and addresses of individuals who may have been treated in a similar manner and those that were treated differently in order to determine whether the Complainant (charging party) was the victim of discrimination.

Sometimes, an investigator will request a Complainant interview. During the interview, the investigator will ask the Complainant specific questions regarding the allegations in the charge to clarify any questions that exist. The investigator also uses this interview to obtain additional details regarding the allegations in the charge.

The investigation process lasts from approximately 6 months to 2 years or more depending on the agency. The investigator generally makes the parties aware of the current backlog of cases and an estimate of a possible completion date. Some agencies such as the EEOC allow employees to request a right-to-sue letter to take their case to federal court before the investigation is concluded. Once after a right-to-sue letter is issued, the EEOC terminates its investigation of the charge. It is a good idea to consult with an attorney to help decide whether to request a right-to-sue letter to go to federal court before the investigation concludes.

Intentional Infliction of Emotional Distress And Sexual Harassment

Many victims of sexual harassment often suffer other forms of humiliating and demeaning treatment of a non-sexual nature. Sometimes, this results from efforts of the harasser and his/her friends to coerce the victim into submission or as punishment for resisting. In some instances, the victim’s work tools are removed, co-workers stop speaking to the victim, the victim’s work supplies are damaged, their cars vandalized in the parking lot and they may also be threatened with physical harm by the harasser and his/her friends.

In other instances, the victim is assigned to do menial work or work in an isolated, wet or overly cold office. Other harassers may require the victim to lift objects that are heavier than average, move to a smaller office or account for their whereabouts in more detail than is required of other employees.

When such conduct becomes extreme, outrageous and beyond the bounds of decency, the harassment victim may also bring a case of intentional infliction of emotional distress either as part of the sexual harassment case or in a different case. Some states permit a sexual harassment victim to bring a case of intentional infliction of emotional distress claim based on the same allegations as the sexual harassment claims, others do not. It is thus important that an experienced sexual harassment employment attorney be consulted to evaluate this option.

Intentional infliction of emotional distress claims have a different measure of damages from sexual harassment cases. First, the damages allowable are broadened to include recovery for non-sexual conduct of a demeaning nature. Furthermore, the cap on damages in some civil rights statutes do not apply resulting in possible payment of larger damages to the victim. Additionally, some civil rights statutes only permit lawsuits against employers and not individuals. With intentional infliction of emotional distress however, the harasser can be sued individually. Some laws also permit these suits against an employer where the employer condoned, participated in, or encouraged the conduct complained of. Punitive damages are also sometimes allowed in cases of intentional infliction of emotional distress.

Our Law Firm On Sexual Harassment Complaint Investigations

Our experienced sexual harassment employment attorneys can assist as necessary. Upon request, we help employers by using our staff to conduct a thorough and objective investigation. We will prepare a summary of the investigation and recommend appropriate discipline or other remedial action, if warranted.

Where the employer prefers to use its in-house staff to conduct the investigation, we can assist in suggesting a written investigation and follow-up plan. We will coordinate with the in-house investigator, prepare witness interview questionnaires, recommend names of witnesses to interview, and review witness statements and reports prepared by in-house investigators for thoroughness. We recognize that each situation is different and welcome an opportunity to propose a plan that is tailored to the specific issues presented.

           Frequently Asked Questions About Sexual Harassment

Sexual Harassment Administrative Conclusion

After the investigation is complete, the investigator prepares a report that summarizes the findings of the investigation and whether there is a reasonable basis to believe that the employer may have engaged in discrimination or harassment against the Complainant.

False Imprisonment And Sexual Harassment

False imprisonment is much like the assault and battery and intentional infliction of emotional distress claims. This claim is typically found in sexual harassment lawsuits where the harasser cornered or prevented the victim from leaving. For example, where the harasser blocks the exit or locks himself in a room or car with the victim and refuses to permit the victim to leave. The measure of damages for this tort is much like those recoverable for the other torts of assault and battery and intentional infliction of emotional distress.

Sexual Harassment Conciliation

If the agency determines that there is a reasonable basis to believe that there has been a violation by the employer, it will attempt to resolve the case though a conciliation process which, like the mediation, is a voluntary process. The investigator attempts to settle the case to avoid the filing of a lawsuit. The conciliation process is much like the mediation process. If the case is resolved through conciliation, no lawsuit is filed and the employer and employer will prepare and sign a settlement agreement

Retaliation for Complaining About Sexual Harassment

Most civil rights laws prohibit any form of retaliation against a sexual harassment victim that complains or resists the harassment and discrimination. Retaliation is generally defined as any adverse employment action taken by an employer or their supervisors against a resisting or complaining employee as a result of the employee’s complaints or resistance.

Retaliation may takes the form of termination, disciplinary write-up, demotion, pay cut, reduced schedule, denied overtime, reduced hours, reduced benefits, reduced responsibilities, poor performance evaluation, unfavorable transfer, undesirable shift change. Retaliation also take other forms such as ostracism, refusing to speak or work with the complaining employee, refusal to answer their questions, sabotage, increased or decreased work load, supervisor’s refusal to acknowledge the victim on a day to day basis, refusal to assist or provide necessary assistance or help to the victim and the assignment of menial tasks to the victim.

Victims of retaliation may sue and recover for retaliation. Damages recoverable will typically include any lost pay and benefits, mental anguish/emotional distress damages, and sometimes punitive damages.

Filing a Sexual Harassment Lawsuit

FILING A SEXUAL HARASSMENT LAWSUIT

If no agreement is reached through conciliation, the EEOC will issue the Complainant a right-to-sue letter which requires that he or she file a federal lawsuit within 90 days of receiving the letter. In the case of the Illinois Department of Human Rights and other agencies, the charge is referred to an administrative law judge at the Illinois Human Rights Commission who will preside over the case and a hearing/trial.

Other Damages Available for Sexual Harassment And Retaliation Victims

Generally, the following damages are available to victims of sexual harassment and/or retaliation: backpay, lost benefits, lost retirement/401K benefit, subsequent job search expenses, mental anguish/emotional distress damages, out-of-pocket expenses, expenses for medical treatment, psychiatric treatment and counseling, diminished earning capacity resulting from the harassment. Where termination or a demotion occurred, the courts typically reinstate the victim to the position that she/he would have had absent the harassment and/or retaliation. In particularly egregious cases, courts would award punitive damages. Most civil rights laws also permit successful sexual harassment claimants to recover all or part of their attorney’s fees and legal expenses.

In sexual harassment cases, the specific damages that are allowed as well as the standard of proof are governed by the specific laws under which the lawsuit is brought. Some laws have caps on damages while others do not. Punitive damages are awardable under some statutes but not by others. Similarly, some statutes only permit recovery of actual damages and not mental distress damages. As such, it is important to consult an experienced employment sexual harassment attorney at the outset to evaluate the proper course to follow depending on the jurisdiction and laws.

  • Frequently Asked Questions About Sexual Harassment
  • Sexual Harassment Case Interview Checklist

Filing a Sexual Harassment Court Complaint

A lawsuit is started by the filing of a complaint with the clerk of the court. After the lawsuit is filed, the Defendant is sent a copy of the lawsuit and required to prepare a written response to be filed with the Court within a certain number of days (sometimes up to 90 days).

Once the lawsuit is filed, the Defendant may either file an answer responding to the allegations in the lawsuit or he may request that the judge dismiss the case. If the case is dismissed, the case would be over and the Plaintiff may appeal the dismissal. However, most cases are not dismissed at this early state of the litigation. Even though many Defendants file motions to dismiss, most of these motions are denied and the Defendant ultimately files an answer to the lawsuit.

Sexual Harassment Lawsuit - Discovery

After an answer is filed, the parties begin a process referred to as discovery. Discovery refers to the exchange of information between the two sides of the case. The aim of discovery is for each side to understand what the other side is claiming and all witnesses, documents and evidence that may support the others’ case. Both sides are required to comply with discovery requests and be entirely forthcoming with the other side. To ensure this outcome, judges may prevent one side from using evidence that it hid from his opponent during discovery. For example, if one party conceals the identity or location of a favorable witness, the judge may not let him use that witness at trial as punishment for hiding that witness’ identify or location from the other side.

Sexual harassment discovery takes various forms:

Interrogatories: These are detailed written questions that one side sends to the other to answer in writing with a certain number of days. These are generally used to obtain names and addresses of important witnesses, nature and amount of damages, and the types of damages sought and defenses raised. Document Production Requests/Notice to Produce: These refer to a written list of documents and things such as software, and such that one side requests that the other side provide. These are used to obtain personnel files, policies and procedures, software, e-mails, and handbooks. Depositions: During depositions, lawyers ask questions of witnesses who have to answer under oath. A court reporter or videographer records all of the questions and answers. While one lawyer asks questions, the opposing lawyer would typically make objections to some of the questions. Even though lawyers object to the questions, the witnesses are required to answer the questions unless specifically instructed not to answer. Any objections made are for the record and will be ruled upon by a judge at a later time if the case proceeds to trial

 

Requests to Admit: These are questions that request "yes" or "no" answers. If the person on whom the request is served fails to respond within the allotted time, he is assumed to have admitted all of the requests.

Even though lawyers for the different sides do not always get along, the are required to cooperate and work with each other to resolve any discovery differences or disputes. If the disputes cannot be resolved by the lawyers, the party who believes that the other is not providing adequate responses to discovery can file a motion to compel answers to discovery questions. Before filing the motion, the lawyer must satisfy the judge that he made a diligent effort to work out his differences with the opposing lawyer. The judge will hear both sides and determine whether the questions are proper and should be answered. Judges may impose a financial or other sanction against any party who fails to cooperate with the other in discovery or conceals information from the other. The discovery process takes approximately 6 to 9 months to complete.

 

Sexual Harassment Lawsuit - Summary Judgement Motion

After discovery is complete, the Defendant may file a motion for summary judgment. This motion asks the Court to dismiss the case on the basis that Plaintiff does not have a case that can be won in front of a jury. Many Defendants bring this motion regardless of the strength of the Plaintiff’s case with the hope that the case does not get to a jury. In determining whether summary judgment should be granted to the Defendant, the judge will review deposition testimony, the employer’s policies, testimony of witnesses, and written submissions by the lawyers. In reviewing the evidence, the judge will try to determine whether the Plaintiff, if believed, can win the case if permitted to take the case to a jury trial. If the judge determines that the Plaintiff will not win, he will dismiss the case. If not, he will deny Defendant’s motion for summary judgment and set the case for trial. The summary judgment process takes approximately 3 to 6 months, sometimes longer depending on the judge’s case load.

Sexual Harassment - Trial

A case will proceed to trial if the case is not dismissed by the judge and Defendant’s motion for summary judgment is denied. If the case is in federal court and a jury is requested, the judge will set it for a jury trial. For cases filed at the other administrative agencies other than the EEOC, the case will be heard by an Administrative Law Judge with no jury.

Plaintiff is expected to be present each day of trial or hearing. Trial begins with jury selection. The judge and lawyers would interview a pool of potential jurors and the selection process will end with a jury of 6 to 12 persons impaneled. After jury selection, the case begins with the Plaintiff making his opening statements after which the Defendant makes an opening statement. Following opening statements, the Plaintiff will call his witnesses and the Plaintiff’s lawyers will question each of them. After each witness is questioned by the Plaintiff’s lawyer, the lawyer for the Defendant will cross-examine that witness. Th next witness for the plaintiff will then be called. The Plaintiff also testifies at length and is usually subjected to cross-examination by the Defendant’s lawyer. After the Plaintiff calls all of his witnesses, he will then rest his case. Defendant will typically move for a directed finding after Plaintiff’s case. If the motion is denied, the defendant will begin to call its own witnesses to be questioned by its lawyers and cross-examined by the Plaintiff’s lawyer.

After all the witnesses testify, the Defendant would typically again ask the judge to enter a directed finding. This basically request that the judge dismiss the case and not let the jury deliberate and reach a verdict. If the judge grants the motion, the case will be dismissed and the jurors will be released and the case would be over. If the judge denies the motion and lets the case proceed, each side is permitted to make a closing argument to the jury. The closing argument is designed to explain the evidence to the jury and emphasize important aspects of each side’s testimony and evidence.

After closing arguments, the jury is taken to the jury room to deliberate and reach a verdict. The lawyers and parties are required to be close to the court house and to return within a short time in the event the jury has a question or has reached a verdict. When the judge is informed that the jury has reached a verdict, he summons the lawyers and the parties to the court house. Once in the court house, the foreman of the jury will read the verdict and announce the winner and the amount of the award. A typical jury trial for employment cases lasts 3-7 days.

Sexual Harassment Appeal

After the jury reaches a verdict, a judge may enter the amount of the verdict as a judgment against the losing side. A judge may also overturn the ruling of the jury or reduce the jury award if he determines that justice so requires. After a judgment is entered, either side may appeal the judgment including the jury verdict. There are strict time limits that are enforced with the filing of appeals. It is thus important to be aware of the deadline to file an appeal and be certain to file the notice of appeal and pay the appropriate Court fees timely in order not to lose the right to appeal. An appeal takes approximately 1 to 2 years to complete.

Sexual Harassment Case - Settlement/Trial Monetary Value

The value of each case is different and depends on the type of discrimination suffered, lost pay and benefits, the length of time that the Plaintiff endured discrimination or harassment, the severity of the discriminatory conduct, and the employer’s response to Plaintiff’s complaints of discrimination and harassment. The value of a case requires a detailed summation of all losses incurred by the employee such as: lost pay, lost overtime pay, lost benefits, job search expenses, COBRA payments made due to loss of work, medical bills, judgments entered against employee as a result of inability to pay bills, and raises lost due to loss of employment.

In determining the amount of mental anguish damages to request, it is important to determine to what extent that the employee sought psychological counseling or treatment and the length of such. In addition to the damages identified above, a Plaintiff may request punitive damages in federal court against an employer who acted recklessly and with malice.

 

Sexual Harassment Case - Timing of Trial or Settlement Payment

When a case settles, both sides discuss and agree on how quickly the funds will be made available to the Plaintiff. Generally, the parties agree that payment will be made within weeks of signing the settlement agreement. In settlements, the parties have control of the terms of the settlement and can negotiate the deadline for paying the Plaintiff. When a case is won at trial, payment is required to be made within weeks of the judgment. If an appeal is filed, the payment will not likely be made until after all of the appeals are exhausted. An appeal sometimes takes more than 1 year to complete.

Sexual Harassment Lawsuit - Settlement Conference with Judge or Magistrate

If a settlement conference in set in front of a judge or magistrate, the parties are all required to be present. The judge generally acts as a mediator. He typically asks each side to make an opening remark. After opening remarks, the judge typically meets with each side privately to discuss the relative strengths and weaknesses of their respective positions. The judge will continue to meet with each side to discuss ways of resolving their differences and narrow the gap in the respective positions. The conference typically take several hours to complete. If the judge is successful in resolving the case, the parties typically prepare a written settlement agreement that will be reviewed and signed in the weeks following the settlement conference.

To prepare for a settlement conference, each side should know the facts of the case thoroughly by reviewing all of the pertinent documents, evidence, deposition testimony, witness testimony, damages, and expenses. Each side should also be thoroughly familiar with the relative strengths and weaknesses of his case to conduct a realistic assessment of his position. Each side should also be prepared to show the judge relevant case law, testimony, and documents that support its position. Settlement conferences are convened for the benefit of the parties to the case. It is a voluntary process during which no one is required to settle or accept a settlement offer that it does not wish to. Each side is able to terminate the process at will or reject any settlement proposals.

 

Sexual Harassment Mediation Conference

Before starting the investigation, most agencies attempt to resolve the charge through a mediation process. The mediation is an informal process during which the employee and the employer’s representative meet face-to-face with a mediator to attempt to settle the case. Mediators are generally not employees of the agencies. Instead, they are mostly retired judges, attorneys, and others professionals that are trained in alternative dispute resolution. The mediation process is voluntary and neither the employer or employee is required to settle the case. As there are no judges present in the mediation, the employer and employee generally determine the terms of the mediation and can reach whatever agreement that is acceptable to both sides.

The mediation process is confidential. As such, nothing that is stated during the mediation process can be used during the court proceedings or investigation of the case. The person who acts as the mediator has no role in the future investigation of the charge or in the lawsuit. As such, if mediation fails, the discussions held during the process do not have an impact on the ultimate determination of the case. Most mediators require that all participants sign a confidentiality agreement before the mediation begins. If a settlement is reached during the mediation, the terms of the agreement are generally summarized into a lengthy settlement agreement which the parties have to sign in order to complete the settlement.

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