This article originally appeared in the Winter 2018 ATLA Docket.
By: Elizabeth LaRue-Grigg
Gregory & LaRue, PLLC
Those two little words together as #MeToo now represent the recent disturbing exposures of sexual harassment in the workplace and beyond. The hashtag represents a movement that allows people to share their experiences without embarrassment and raise awareness of the magnitude of the problem. It has sparked a firestorm of revelations recently against many prominent male media figures, such as the Hollywood producer Harvey Weinstein; the veteran CBS reporter Charlie Rose; the NBC political journalist Mark Halperin; and most recently, the longtime NBC news anchor Matt Lauer. Their individual stories are egregious and resulted in their termination from employment. It remains to be seen if the employers will be held accountable for their own actions or inactions.
Sexual harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature. In the recent cases involving the prominent media figures identified above, the harassers have stated they believed their encounters to be consensual, and they may have been. The definition of unwelcome is subjective. It is a civil definition, not a criminal definition. When an individual in a position of power begins asking or demanding sexual favors or engaging in illegal sexual harassment against those in more vulnerable position to them in the workplace, the advances can be deemed unwelcome even if they meet the criminal definition of consensual. It is important to determine all the facts surrounding the encounters to determine if the harassment is truly welcome or unwelcome. The victim may say yes or not object to the conduct, but the contact may be unwelcome.
There are many other factors to evaluate when determining whether actionable sexual harassment exists in the workplace. The victim as well as the harasser can be a man or a woman. The victim does not have to be of the opposite sex. The harasser can be a direct or indirect supervisor, a co-worker, a customer or client of the employer, a third party agent or independent contractor, the owner of the company, a board member or other individuals affiliated with the employer. The victim does not have to be the person that is harassed, but could be anyone affected by the offensive conduct.
Illegal sexual harassment does not have to be of a sexual nature. It can just be offensive comments about the person’s sex. However, it must be behavior that is beyond simple teasing, offhand comments or isolated incidents. When it occurs, the employee must report it to the employer and give them a chance to correct it. The employer must investigate it. The employer does not have to fire the harasser, unless the investigation results warrant otherwise. The victim/employee must help in the investigation, if asked. The employer does not have to tell them the results of their investigation even though communication of some version of the results is a good idea. The harasser may just be counseled in various ways. If the behavior complained about it being particularly egregious but the complaint cannot be substantiated, the result may include the victim or harasser being moved to a different department or shift, if possible.
The employer should take steps to make the victim feel safer and not retaliate in any way. The employer should have policies and procedures in place to prevent and report any acts of harassment or discrimination, often called an open door policy. An open door policy means that an employee can communicate complaints or concerns to any manager at any time or to the human resources department (“HR”). Management should be trained on what to do next. The employer should follow its policies and procedures consistently. Employers should routinely train employees on these policies and procedures. Lack of policies and procedures, training and/or an investigation into complaints are important, but are often not determined until the case is well underway.
The timeliness of filing a charge with the U.S. Equal Employment Opportunity Commission (“EEOC”) can be an issue because the deadlines are short. In the cases where there has been an adverse employment action such as a termination, demotion, a cut in pay or hours resulting in reduction in take-home pay or a bonus, etc., you have 180 days from the date of that adverse employment action to file a claim at the EEOC or it is barred. In some instances, there is as long as 300 days to file a claim. On the other hand, for federal employees, the claims must be brought within 45 days of the adverse employment action, or last act of illegal conduct, but through an entirely different complaint process. Bottom line is to file an EEOC charge for your client as soon as possible, but after completing your own thorough investigation into the facts as you would before filing a lawsuit. And when you do not take the case, you may want to direct the individual to go directly to the EEOC while they try to find other counsel. In the cases where there is not an adverse employment action is more difficult to determine when the case is ripe for filing a charge with the EEOC. If you are too early, the EEOC will kick your Charge out within a few days rather than the taking the standard six (6) months or more.
When there has not been an adverse employment action, the illegal harassment has to be so frequent or severe that it creates a hostile or offensive work environment. When those facts occur, you will have 180 days from the most recent act to file the EEOC Charge. The Arkansas Civil Rights Act (“ACRA”) has a one (1) year statute of limitations on these claims but it is better to take advantage of the EEOC process first since there are no filing fees. During the EEOC investigation, the respondent must provide a large amount of information to the EEOC when responding to the Charge. That data can be requested after the Right to Sue letter is issued. You have 90 days from the date of the issuance of the Right to Sue letter to file your federal claims in federal court, with only a few exceptions or the claims are barred.
Another consideration is the definition of the workplace. Unwelcome sexual harassment at the workplace does not just mean the brick and mortar location for the business. With the ability to work from your smartphone and at all hours of the day and night, the definition of the workplace can be a fact intensive analysis. It is important to determine all the facts and circumstances surrounding the events to see if some acts that occurred away from the brick and mortar location may need to be included in the claim.
There are often other discrimination or harassment claims at play. The victim may be retaliated against after engaging in a protected activity. That is another actionable claim that needs to be included in the EEOC Charge. As stated above, the victim must complain to HR or their direct supervisor or otherwise follow the company complaint procedure. This is considered engaging in a protected activity. It is not uncommon for the retaliation to start occurring after the initial complaint and then again, after filing the EEOC charge. It may be necessary to amend the EEOC charge (once or several times), which is a simple process and should be done whenever an adverse employment action occurs.
Our firm, Gregory and LaRue, PLLC, primarily practices in this area. We gather as many details as possible when the potential claimant first makes contact. It may take several weeks for us to determine whether or not there is actionable harassment depending on the number of documents and witnesses available. The investigation that goes into filing a charge should be similar to that done for filing the original complaint in federal or state court. It is important to name every entity that could be involved in the EEOC charge and every claim available or it is barred from being raised in the federal lawsuit. If the claimant has completed the EEOC process, make a FOIA request of their file or have them do that. It can provide valuable insight into all sides of the dispute. These cases are often s/he said, s/he said. Your client’s ability to tell their story consistently and believably is crucial. Often your client may need to seek medical attention for the emotional and sometimes physical harm done by the harassment.
These types of claims on average take 18 to 24 months before there is any resolution. Communicating this to your client is key. This is especially important for those individuals who have suffered an adverse employment action. It may be months or years before there is any relief. These cases are only designed to put the individual back into the position they would have been in had they not been harassed. They will not bring significant monetary damages. The law requires them to mitigate their damages and to find a new job making the same or more income and benefits. If your client finds a new job, making more wages with better benefits their compensatory damage claim will be cut off at that point. Damages for these claims include back wages, front pay or reinstatement, emotional damages, attorneys’ fees, expert witness fees, and costs. Punitive damages are available for especially malicious or reckless acts of harassment. Front pay is usually awarded by the judge and does not exceed 2 to 3 years. Most commonly, one year is awarded. There are caps for compensatory and punitive damages.
- For employers with 15-100 employees, the limit is $50,000.
- For employers with 101-200 employees, the limit is $100,000.
- For employers with 201-500 employees, the limit is $200,000.
- For employers with more than 500 employees, the limit is $300,000.
For employers with less than 15 employees, there is no federal liability for sexual harassment until Title VII. The ACRA requires a minimum of 9 employees before liability attaches. The cap under ACRA mirrors the federal law with the exception of claims against employers of 9 to 15 employees. The limit in that instance is $15,000 in compensatory and punitive damages. For employers that have eight or fewer employees, you will need to look to the common law for relief for your client.
Victims of harassment often do not want to pursue claims. Embarrassing facts and sometimes medical records to prove damages may need to be disclosed in open court. Informing your client about health resources available in the community and through their own health care providers can be a helpful, supportive gesture. If you have any questions, please feel free to contact Gregory & LaRue, PLLC at 501-683-8