Defending Sexual Harassment in the 90's

by Joseph A. Rice, Ph.D.

In today’s highly litigious environment, it is fairly common for risk managers and supervisors to discuss and consider the range of potential and pending lawsuits that can occur in the workplace. Workplace conflicts are common. Employee threats of lawsuits, and management’s stubborn refusals to give in, are traded like schoolyard taunts. There remains, however, an area of litigation that continues to incite fear in the hearts of risk managers and supervisors throughout the country. That is the accusation of sexual harassment.

Unlike other areas of litigation, which may have a moment of attention, and then recede into the background, sexual harassment allegations persist. Like a virulent strain of virus, sexual harassment allegations have adapted to changes in the workplace and continue to threaten workplace relationships. Over the past twenty years our society has become increasingly aware of, and responded to, the traditional form of sexual harassment in the workplace. In fact, it is becoming increasingly rare to find a traditional "quid-pro-quo" claim of sexual harassment. While there will always be a few individuals who see workplace authority as a means of satisfying personal needs, this new form of harassment is more pervasive and more difficult to address. That is, the sexually hostile work environment.

In the more traditional sexual harassment claim, a plaintiff alleges that he or she has been subjected to unwelcome sexual comments or behaviors by a superior. In these situations, the plaintiff appears vulnerable, and is frequently the direct target of sexually based harassment or abuse by someone who has authority or influence over his or her position. In these settings, the dispute and the bulk of the testimony is focused on the statements by the plaintiff and the principle defendant. In a sexually hostile work environment claim, the plaintiff may never be the target of any direct sexual comment, suggestion or act. The plaintiff, however, claims that the nature of the work place, and the behaviors of other employees are offensive, and are sexual in nature. The rise in sexually hostile work environment claims appears to parallel the increased contact between female employees in work settings that were predominantly male in nature. For example, one situation involved women hired as parts clerks for a transit authority, who, upon entry into the mechanics work area, would overhear offensive language, witness sexual gestures and jokes traded between the male mechanics. These female employees claimed that the environment within the maintenance building was sexually hostile, and interfered with their abilities to perform their tasks comfortably.

Lawsuits related to sexual harassment claims are particularly volatile and risky for all parties. Stereotypes about male supervisors and female subordinates no longer hold true in all cases. In today’s workplace, claims of sexual harassment can now easily involve female supervisors and male subordinates, as well as same sex issues. This broadening definition of sexual harassment vastly increases the vulnerability of defendants by providing increased opportunities for employees to file charges, and for a jury to send a message to an employer. Over the past several years, we have conducted numerous research exercises on stereotypical sexual harassment, as well as sexually hostile work environment claims. This research has revealed that it is the unique characteristics of the claims, along with the varying background of the jurors, which lead to the highly volatile results.

Sexually Hostile Work Environment

One rapidly growing topic of litigation, and the one causing great concern for employers, is the claim of a sexually hostile work environment. Allegations of a sexually hostile work environment invite a jury to consider the atmosphere and general health of the work environment, as opposed to focusing on the statements or actions directed at the plaintiff. Because of this broader focus, juries end up hearing from many employees, and evaluate the behavior of everyone involved.

One of the greatest risks associated with defending a sexually hostile work environment claim is that the common language associated with the claim, in effect, makes it a somewhat easier charge to establish. Specifically, charges of a sexually hostile work environment are frequently referred to using some shorthand expression, such as a "hostile work environment" or a "hostile environment." In simplifying the expression, lawyers and witnesses are, in effect, lowering the standard by which a jury addresses the facts of the case. Research shows that jurors begin discussing the case in terms of whether the work environment was tense, difficult, hostile, etc. Jurors no longer look at the sexual component of the environment, but look at the environment in very broad terms. Should the parties adopt this more casual reference (e.g., hostile environment or hostile work environment), it is the exceptional juror who, during deliberations, will make the effort to link all evidence to the claims of a sexually hostile work environment. Research clearly demonstrates that defendants must, at all times, maintain this critical link and remind jurors that the case is about a sexually hostile work environment, not a generally hostile work environment. Unfortunately, even with this emphasis, jury deliberations frequently break down into broad discussions about whether employees are entitled to a safe, happy, work environment, as opposed to one that is tense and uncomfortable.

Case Evaluations

Research exercises (i.e., mock trials, focus groups, etc.) conducted throughout the country demonstrate that many sexual harassment claims can be successfully defended. Like medical malpractice cases, there appears to be a threshold decision about liability. If liability is established, then damages can get quite dramatic. Because of these trends, damage control may be difficult once a jury has found that the offending behavior has occurred.

One of the most important decisions for a risk manager is to determine the principle focus of the case. In most litigation, defendants expend significant energy defending liability and limiting damages. Unfortunately, a defendant who adamantly denies liability, and is then found liable, must address damages. Frequently, their credibility with regard to damages is significantly impaired, and jurors become motivated to send a message to the employer. Research suggests that in cases where a finding of liability is likely, then the best position for a defendant is to accept some level of responsibility, while aggressively attacking the damages claimed by the plaintiff.

It is the employer’s credibility and reasonableness that persuades jurors. An unreasonable position, be it on liability or damages, serves to alienate your allies on the jury panel, and empowers the pro-plaintiff jurors to send an emotional and powerful message back to the defendant. In order to focus your case, it is important to accurately evaluate the likelihood of a liability verdict, and the strength of the evidence related to damages.

Risk managers must evaluate liability, and obtain some objective understanding of how a jury will approach the facts in a case. This objective investigation, obtained through informal or formal research activities, must be conducted. The value of your case is determined by a jury panel reviewing the evidence and issues. The credibility of witnesses and the value of damages is a highly subjective finding, and in large part is based on the life experiences and attitudes of the jury panel. Jury panels are never made up of risk managers or attorneys. As a result, the opinions of those close to the defendant, or in the practice of law, are often tainted by a desire to be an advocate for the defendant. Only by testing your case in front of people who represent the community, can you begin to predict the possible outcome of trial. In fact, it is particularly valuable to weigh the evidence from the perspective of someone who is likely to identify with the plaintiff, and can provide a "worst case" appraisal.

Witness Testimony

The most relevant and compelling evidence at issue in a sexual harassment claim is the testimony and credibility of the key witnesses. Assessing the sincerity and persuasive power of the plaintiff can provide you with meaningful insight into the likelihood of a plaintiff versus a defense verdict. In evaluating the credibility of a plaintiff you should consider videotaping the plaintiff’s deposition. These videotapes provide a unique opportunity to obtain object insight into the complaining witness' appeal to a jury. Much of a jury’s activity is subjective in nature. Only by seeing and hearing testimony of the plaintiff can others provide you with meaningful reactions and insight.

Using the plaintiff’s deposition as a source, you can identify and select excerpts regarding critical pieces of evidence, and present these videotapes to panels of community residents. The residents then provide you with direct feedback regarding the credibility and impact of the plaintiff’s testimony. Videotapes of the plaintiff and defendants can effectively be used in focus groups and mock trials, and can provide a realistic preview of the jury’s determination.

Notice

One of the questions most frequently raised by jurors during deliberations is the desire to understand the level of awareness within the agency, and whether the defendants had an opportunity to address known problems. To this end, a strong human resource representative and appropriate policies have a significant impact on jurors' assessments of a case. Jurors do not require that employers control every aspect of the workplace, but they do require an employer to act reasonably. Evidence of in-service training, sexual harassment newsletters or bulletins, and a compassionate member of management, is frequently sought by juries. A plaintiff’s failure to make use of the procedures and mechanisms established within a workplace is often cited by jurors as a justification for denying plaintiff’s claims. Evidence that establishes the openness of management to hear and respond to harassment claims is incredibly powerful for jurors, and establishes the reasonableness of management.

Juror Variables

Juror characteristics account for a large part of the variability in sexual harassment verdicts. Mock trials, which evaluated cases with female plaintiffs, demonstrated that the female members of the jury set the tone and pace for deliberations. In today’s political climate, male jurors tend to be deferential and adopt a "politically correct position" during the deliberation process. Male jurors allow the female members of the panel to gauge the severity of the offending acts, and to determine whether a plaintiff has met her burden of proof. Similarly, the female members of the jury set the tone regarding criticism of the plaintiff. Defendants must frequently make a difficult decision about how aggressively they can attack the plaintiff. Research demonstrates that the motives and character of the plaintiff can and should be addressed, but jurors require that you approach the issue responsibly and sensitively. Pretrial research activities can provide you an opportunity to establish the level to which you can directly criticize the plaintiff, or whether you must focus the jury on other parties or other evidence.

With regard to specific juror experiences, it appears that the juror’s personal experiences influence how they will approach the evidence. For example, within any panel of 12 jurors, it is likely there will be a few jurors who will see a case as an opportunity to send a powerful and persuasive message to an employer and want to make sure that employers "get it." At the same time, a panel of jurors frequently contains one or two individuals who look at the specific acts or behaviors and find them to be fairly benign or inconsequential. It is not uncommon, in a traditional sexual harassment case, for a 60-year-old female juror to comment that the charges raised by the plaintiff were nothing compared to what she put up with when she entered the workplace 30 or 40 years ago. It is the changing work environment, and the ongoing changes in society’s standards that create the volatility found within the jury room. With all these difficulties, can you ever successfully defend such a case?

Case Disposition