Frequently Asked Questions

• 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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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

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.

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.

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.