Why Legal Action May be Necessary
Many people think that all workplace harassment cases go all the way to a lawsuit but that does not always happen. Some cases stop after the reporting or investigative stages for whatever reason. Others reach an agreement like a settlement that removes further legal action from the list of options or certain events cause the case to be dismissed. Of the 12,860 sexual harassment lawsuits filed in 2016, there were 9.4% that reached a negotiated settlement and 22.9% that were closed by the court, meaning dismissed. The remaining 67.7% reached some other conclusion but only after fully progressing through the court process sans any appeal filings.
Just because some cases may not run all the way to the end of the court system does not mean that taking legal action isn't worth it. Taking legal action is a means for victims to get justice for what happened to them and to have those responsible punished but there's always a risk that things will not pan out. Some of the reasons why legal action may be taken in the first place include the following.
Impact of the Harassment -- Harm and distress inflicted on victims from sexual harassment is often one of the grounds for taking legal action. Harassment can have a traumatic impact on a person both physically and mentally, and is something that the legal system can address through a civil suit when there isn't criminal charges involved. Many victims seek monetary compensation from their harassers in order to financially address things like medical costs and the loss of wages, employment, etc. generated through the harassment.
Retaliation -- Retaliation is commonly associated with cases of workplace harassment as it can occur in response to victims' speaking out and filing claims. It is defined as "to repay in kind," but it basically is a form of revenge when it comes to harassment and discrimination. In and of itself, retaliation is another type of harassment and is therefore illegal by law. Retaliation can occur at any point in a sexual harassment case, including after the stages discussed in the previous lesson come to a conclusion by the business or the harasser as punishment for the victim's actions. An example of retaliation would be firing or demoting the victim for reporting and such an action could be used as evidence in a civil lawsuit.
Actions of the Harasser -- While you may think that the actions of the harasser simply means the harassment itself, it can go beyond that. This can include retaliation as referenced (see above) but also the behavior over the course of the investigation and in other legal matters that may be seen as additional hostility outside of the workplace. In cases where the harasser is a member of management or the employer of the business, this could also include their failure to provide a safe working environment and a failure to meet their legal responsibilities.
Are there any restrictions on who can take legal action in a sexual harassment case?
Technically, there are no restrictions as to who can take legal action in a sexual harassment case. If you have been impacted by sexual harassment in the workplace either directly as a victim or indirectly as a bystander and/or witness, then you can file a lawsuit or any other legal action against the harasser. It's not limited to age, gender, sexual orientation, immigration status, religion, etc.
What legal options are available?
Legal action isn't necessarily going to be required in every instance nor is it going to always be a viable option. As mentioned in the previous lesson, you cannot file a civil lawsuit after an EEOC investigation if you have not been given notice to do so or do not do so within the allotted timeframe. You also will not be allowed to take additional legal action if you've already entered into a settlement agreement. Attempting to do so could be seen as a legal breach of contract. Taking legal action of any kind will depend on the circumstances leading up to it, including other forms of action to address the situation and the nature of the harassment itself. If legal action is to be taken, the following are some of the options and things you need to consider if you are involved.
Legal Counsel -- Getting a lawyer seems like a no-brainer but you want to make sure that you get the right one. If the situation has reached the point where legal action is being taken, then it's best that you get a lawyer who is familiar or experienced with cases of workplace harassment and discrimination. They will have the appropriate knowledge for the situation to properly guide you through the legalities with the best possible outcome. You may want to consider getting a lawyer anyway or at least consult with one during the investigation for any legal advice or questions that you may have. Witnesses of harassment who may be involved in legal action may also want to consider hiring a lawyer to represent and guide them. In the event that there are multiple victims who are taking legal action against the same harasser, each one should get their own representation or employ a legal team rather than share a single attorney.
Civil Lawsuit -- A lawsuit is usually what people mean when the idea of taking legal action is discussed. Formal charges and claims are usually viewed differently than suing someone. As mentioned previously, it's usually recommended that you exhaust all other avenues first before you go forth with a civil suit. This means you should confront the offender first as much as you may not want to--maybe have someone with you--file your formal complaint within the business and/or company, plus file an administrative charge with the EEOC. Of course, you cannot file a lawsuit if you have filed a charge with the EEOC until they give you Notice of Right to Sue. When you do decide to file a lawsuit against the harasser and/or your employer, be sure to follow all requirements for doing so as dictated by state and federal governments. Keep in mind that you may not go through the full court system since settlements or an agreement of some kind can be made before going in front of a judge. Also, not all cases will necessarily end in a resolution.
Class Action Lawsuit -- It is possible for multiple victims of the same harasser to file a civil suit against them together. This is called a class action case and requires that the plaintiffs all share similar injuries and/or effects from who or what they are suing. A harasser who is a serial offender or an employer who is held at fault for multiple instances may very well be the target of a class action suit from victims and/or employees. The key for this to occur with workplace sexual harassment is that everyone involved will likely be required to take similar actions leading up to the suit's filing. For example, if several file EEOC complaints, then the whole group may also need to do so or time the rest of their actions to the EEOC's actions, such as investigation and Notice of Right to Sue. Any financial outcomes or settlements from a class action lawsuit will also have to be divided among all plaintiffs, which may mean that the total damages might be smaller per person than what is needed.
Arbitration -- Arbitration involves a third party acting as an unbiased mediator, called an arbitrator, who will hear both sides and reach a conclusion on the case. It's treated as an alternative to traditional litigation that is popular in the business world and in workplace harassment cases. Arbitration, however, does not allow the option of appeal and the decision of the arbitrator is legally binding. Unfortunately, this is what makes arbitration so popular in the business world since it gives businesses and employers a bit of an advantage when they are the defendants in a sexual harassment case, which normally do not have a lot of physical evidence to back up claims. Many businesses have employees sign forced arbitration agreements as a part of their hiring, which prevents them from taking any other legal option within the business should circumstances require it. Disturbingly, this is something that is completely legal for businesses to do.
Settlement Agreements -- As previous lessons have mentioned, settlements are commonly associated with sexual harassment cases. They are a legal option that might be available should all parties involved reach an agreement. This can include financial compensation as in punitive and compensatory damages, as well as confidentiality agreements, cease-and-desist notices, restraining orders, etc. Settlements often go through quite a bit of negotiating to reach terms that both parties are satisfied with. The only time that this doesn't happen with a settlement is in arbitration cases, in which the arbitrator decides the terms, meaning that the terms are often forced upon all of the parties involved.
What About Criminal Charges?
If there are criminal charges placed against the harasser and/or the business or employer, then the decision to do so may or may not be up to the victim. This can be dependent on their willingness or unwillingness to press charges, or the severity and nature of the harassment. Criminal charges in sexual harassment cases are often a result of sexual assault or physical assault, but they can also involve stalking, unlawful imprisonment like kidnapping, or destruction of property. There have also been instances where sexual harassment in the workplace escalated to murder or attempted murder in which there will also be criminal charges filed against the harasser. Law enforcement and the state will take action in any of these instances, regardless whether it is what the victim wants to do or can do.
