Celebrating 10 years! 2007-2017

Newbies Guide to Sexual Harassment Suits?

I have a potential client with a harassment claim against a saulgoodmanwannabe01/30/17
can't answer the rest, but as for costs, if you need you can dingbat01/30/17
Not legal advice. 1a. Assuming your state equivalent of t jorgedeclaro01/30/17
Just curious. How does 1a apply if the only good claim is re tacocheese01/31/17
I'm not quite sure what you're asking. For retaliation, the jorgedeclaro01/31/17
Not legal advice, but the federal EEOC route is not necessar wolfman01/31/17
saulgoodmanwannabe (Jan 30, 2017 - 11:24 am)

I have a potential client with a harassment claim against a deep-pockets defendant. Claims he was harassed by a supervisor, made complaints up the chain that were ignored, and was not promoted as a result even though less-senior employees received a promotion. He also has explicit text messages/e-mails sent by the super all saved.

- How do I value his case? He quit as a result and took job elsewhere - does that hurt the case? Is there a claim for "constructive discharge" if he left because of unresolved harassment?

- State or Federal court? This happened more than 180 days ago so is federal EEOC route closed? Must he make a state civil rights claim for a state suit?

- What are my costs I'm looking at just to investigate the case? I have zero budget right now as a new solo.

- Should I sign him up and then get a more experienced attorney and just take a cut?

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dingbat (Jan 30, 2017 - 1:16 pm)

can't answer the rest, but as for costs, if you need you can always enlist another firm and split the work/fees.

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jorgedeclaro (Jan 30, 2017 - 1:37 pm)

Not legal advice.

1a. Assuming your state equivalent of title vii operates the same way (and it usually does) a claim of constructive discharge mirrors that of hostile work environment. Severe and pervasive harrassment that changes the conditions of employment and makes the work environment intolerable. Only place getting a new job hurts you is on claim for back wages. Hopefully failure to promote damages makes up the difference.

1b. The key to any great plaintiff's side discrimination case is direct evidence. You need the explicitly sexist comment or ass grab (remember, being an asshole is not enough. You have to be an asshole based on sex). With that in place, getting past McDonnel-Douglas burden shifting is so much easier. It's like the rug in Big Lebowski, it really ties the room together and can be used to infer that a whole bunch innocuous things were based on sex. Raniola, 243 F.3d 610. Value the case on this strength and on how liberal your jury pool is. On the secondary side what can you point to as physical manifestations of emotional distress? Lack of sleep, change in appetite? Therapy? Avoiding social situations?

2. If you are outside of making the EEOC complaint, title vii is probably cut off. However, if employer is a state agency, you can backdoor your complaint as a 1981 & 1983 claim. On state vs. federal, go where you are most comfortable. The good thing on federal side is they know discrimination cases well and I find juries are a little better. Downside is they hate diversity cases and are not afraid to knock out a bad discrimination case on Summary judgment. If employer is not a resident of the state there is a 90% chance they remove anyway. So be prepared for either route.

3. Hard Costs to investigate are going to be depositions. You will need to take them for anyone and everyone who saw the harassment. You can sometimes get "me too" evidence in on harassment cases. You might need an expert to testify to any economic damages. But really if you're guy is employed you are looking at non economic damages mostly or failure to promote damages.

4. RPC 1.8 on fee splitting. If you have a great case and someone to do it with, great. I've never tried to do this so I have no idea how it works in practice.

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tacocheese (Jan 31, 2017 - 9:26 am)

Just curious. How does 1a apply if the only good claim is retaliaton? That is, assume the conduct doesn't rise to the level of hostile work environment; I'd imagine you can still get difference in wages if you took another job that paid less than the promotion? (It seems like what lay people think is sexual harassment often isn't but retaliation seems like a solid claim).

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jorgedeclaro (Jan 31, 2017 - 12:15 pm)

I'm not quite sure what you're asking. For retaliation, the question is whether the employee suffered an adverse employment action as a result of engaging in protective activity. "Adverse employment action" is not the same as "so severe and pervasive that it changes the terms and conditions of employment." In this sense, a retaliation claim is more similar to a disparate treatment claim than a hostile work environment claim.

While not completely perfect, my shorthand for adverse employment action is does the action by the employer affect compensation or the employee's future ability to get compensation. So fired, demoted, bad performance review, hours cut, etc.

Does that answer your question?

Edit: I re-read your question and it made more sense. There is such a claim a retaliatory constructive discharge. I've never run across one, but it would appear to be the same constructive discharge standard, severe and pervasive making work conditions intolerable, etc.

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wolfman (Jan 31, 2017 - 3:49 am)

Not legal advice, but the federal EEOC route is not necessarily closed as long as your state has an equivalent agency on the state level. Depending on where you are, the courts have held (at least in the 2nd circuit) that the EEOC deadline may be extended to 300 days as long as a state civil rights agency exists, whether or not a claim has actually been filed with it (although you want to actually file with it, if possible, as long as that doesn't somehow interfere with your EEOC filing). Research 300 day, as opposed to 180 day deadline in your area, and where the courts stand. A lot of this stuff gets dismissed or survives on time bar issues, so yes, I would recommend you at least consult with a practitioner who is experienced in the employment area. Another tip: make sure all responsible parties and all grounds (like harassment AND retaliation) are named in the EEOC complaint if you get to file one; trying to sue parties you did not name on grounds you did not state to the EEOC is frowned upon...

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