Sexual harassment by senior executives

CSuiteWe have seen a significant increase in sexual harassment cases involving senior corporate executives. For those unfamiliar with the legal rules that apply in sexual harassment cases, employers are liable for sexual harassment by co-workers only if the employer was negligent in discovering or stopping the harassment. Liability rules change somewhat when the sexual harassment is perpetrated by a supervisor with hiring and firing authority. If the sexual harassment results in a termination, demotion, pay cut of other tangible employment action, the employer is strictly liable. If not, then the employer is allowed to raise a defense that it exercised reasonable care in preventing sexual harassment from occurring, and that the employee failed to make use of the procedures the employer made available to investigate and remedy sexual harassment. However, when sexual harassment is perpetrated by a member of the C-Suite (for example, the CEO, COO, President, Owner or another senior corporate executive), liability is always automatic and strict. This is because the law draws no distinction between the corporate entity and the executive officers who control it for purposes of sexual harassment liability. Such officers are considered the corporation’s proxy or alter-ego. If you have been sexually harassed or assaulted by a senior corporate officer at work, you may have important rights under the law. Call us today at 412-258-2250 for a consultation.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

Protecting the Plaintiff in Sexual Harassment Cases

In sexual harassment cases, evidence of a sexual harassment victim’s past sexual behavior or sexual predisposition – including evidence of a the victim’s sexual behavior, fantasies, dress, speech or lifestyle, is inadmissible at trial. Such evidence can only be admitted where the proponent proves, after a special hearing, that the probative value of the evidence substantially outweighs the danger of harm to any victim or of unfair prejudice to any party. The rule protects victims against the invasion of privacy, embarrassment and sexual stereotyping associated with the public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process. By affording victims protection in most cases, the rule also encourages victims of sexual misconduct to come forward and to participate in legal proceedings against harassers.

“The days when employers could put the victim on trial are over,” said employment attorney Charles A. Lamberton. Notwithstanding the rule, employers will often still ask about the victim’s past sexual behavior and sexual predisposition in the discovery process because the standard for whether evidence is discoverable is broader than the standard for whether it is admissible. Such requests are thinly veiled efforts to intimidate the plaintiff. “When those questions are put to my client, I let it be known pretty forcefully that we will not respond and will vigorously resist any effort to compel responses.” Lamberton noted that “while it’s true that evidence need not be admissible to be discoverable, a discovery request should be resisted when it is not calculated to lead to admissible evidence. Most evidence the employer seeks to use, especially any kind of conduct that takes place outside the workplace, will not meet that standard.”

Mr. Lamberton is a Pittsburgh employment lawyer and represents employees in sexual harassment and other civil rights cases.

On the offense with the employer’s sexual harassment investigation

i-sexualharassmentMost sexual harassment and racial harassment cases have a front-end and back-end. The front-end consists of the underlying acts of sexual harassment (or racial harassment) against the employee, for which the employee complained. The back-end consists of the employer’s investigation of and response to the employee’s complaint. It can be tempting to conceptualize the liability-creating acts as occurring only on the front-end of the case, and to use the back-end solely to undermine the employer’s affirmative defenses or as support for punitive damages. Undoubtedly, a halfhearted, botched or otherwise perfunctory back-end response to a sexual harassment complaint will serve these purposes. But can the employer’s investigation of and response to a sexual harassment complaint also be used together with the front-end acts of harassment to create an entire case theme – one that weaves together both the front and back ends into a single story about the employer’s self-serving anti-discrimination policies, its lack of interest in enforcing those policies, the sexual harassment that the employer could have prevented, and the employer’s lazy, uncritical and incomplete investigation of the employee’s complaint? We think it can.

Sexual harassment cases are often – though not always – comprised of many acts of harassment that, together, meld into what courts call a hostile working environment. That is, a work environment where the terms, conditions or privileges of employment have changed sufficiently because of sex to create a claim for discrimination. Yet, it is worth thinking through this question – just what are the “terms, conditions and privileges” of employment? One could write a book in response, but for our purposes, it is enough to say that the “terms, conditions and privileges” of employment are what the employer says they are and what the employer allows them to be in practice. We will focus here on what the employer says they are.

Most employers have adopted strongly worded EEO (Equal Employment Opportunity) policies and strongly worded anti-discrimination policies. Those policies will be in writing and are usually found in an Employee Handbook, on the employer’s intranet or posted on a bulletin board. The policies usually say something like this:

It is the policy of the XYZ Corp. to provide a work environment for all employees free from discrimination and harassment because of sex, sexual orientation, race, religion, color, disability, age, pregnancy, child-birth, national origin, veteran status, genetic information, or any other unlawful basis. XYZ will comply with and strictly enforce all federal, state, and local laws that prohibit discrimination or harassment based on sex, sexual orientation, race, religion, color, disability, age, pregnancy, child-birth, national origin, veteran status, genetic information, or any other unlawful basis. XYZ absolutely will not tolerate discrimination or harassment. If an employee feels that he/she is being harassed, the Company expects the employee to bring his/her complaint to its attention. An employee who brings a complaint to the XYZ’s attention is assured that the matter will be fully and fairly investigated, and dealt with promptly and in confidence to the extent possible. Only those persons who need to know will be involved or informed. XYZ will take immediate and appropriate corrective action, including disciplinary measures as warranted.

In this policy, the employer promises to “strictly enforce” the anti-discrimination laws, to “fully and fairly investigate” employee complaints, and so on. These promises create “terms, conditions and privileges” of employment. An adroit employee-side sexual harassment lawyer should use the employer’s promises to develop the back-end of the liability case. Spend at least one full deposition exploring whether the employer “strictly enforced” the law, whether its intolerance of discrimination or harassment was truly “absolute,” and critically, whether the employer conducted a “full, fair and prompt” investigation,” that it followed with “immediate and appropriate corrective action.” In most cases, there will be a wide gulf between the employer’s promises and assurances on paper and how it actually acted. A very adroit sexual harassment lawyer will make this the front-end of the liability case, a story of paying lip-service to the law, of broken promises and of preventable harm. The back-end will now be the harm that the employer could have prevented (or at the very least mitigated) had it taken its own policies and promises seriously. The focus of the case remains at all times on the employer, where it should be.

Terminated after reporting sexual harassment?

Sexual Harassment at workFirst, understand that you did the right thing. You were correct to complain because sexual harassment at work is illegal. Under the law, you also had a duty to complain so that the employer could investigate and hopefully put an end to the sexual harassment. Unfortunately, your employer fired you instead. Now it’s time to contact an experienced employment lawyer to help you. Just as workplace sexual harassment is illegal, it is also illegal to fire someone because they have reported sexual harassment. The law calls that retaliation, and employees have legal protections against retaliation by their employers. You may be entitled to past and future lost wages, damages for emotional distress, punitive damages and your attorney fees. Don’t delay because there is a deadline to take action and if you miss it, it may not be possible to pursue your claims.