Sexual harassment can be devastating. If it happens at work, victims face a quandary: say nothing and live with the humiliation of unwanted conduct or speak up, possibly incurring retribution.
These fears aren’t idle. Accounts of retaliation against outspoken victims are everywhere, and for many years, a culture of silence and intimidation has cloaked bad behavior. Although employees are asked to visit human resources departments and file a complaint if they’ve been harassed, some might feel discouraged from doing so, reasoning that as human resources departments exist to protect the company, not them, they are part of the problem.
Jeffrey Fulton, a Sacramento-based lawyer, acknowledged that HR departments don’t always make the right call – but then, in his line of work, he tends to hear from the employees who have been failed by their companies’ HR processes.
Victims of sexual harassment might think seeking legal help is an extreme step, fearing costly litigation involving unpleasant ordeals – but there is a wide gulf between doing nothing and going to court, lawyers who handle these cases say.
Those in the uncomfortable dilemma of workplace harassment might know what is happening to them isn’t right, but they don’t know their legal rights or the best ways to get the harassment to stop. Filing a lawsuit isn’t always necessary, but an experienced lawyer can advise and assist clients in dealing with their companies’ human resources departments to navigate the minefield of making a report.
Another factor that might stop people from seeking legal assistance is fearing they can’t prove their claims – if a perpetrator is careful not to send incriminating texts or emails, a case might on the surface appear to be ‘he-said, she-said,’ seemingly impossible to prove.
But that’s where experience comes in handy, lawyers say.
Sexual harassment often is a pattern of behavior for perpetrators, so if lawyers and their investigators can find other victims willing to testify, it can lend credence to a plaintiff's case, Fulton said. Absent this, lawyers can find holes in the ‘perfect story’ crafted by a sexual harasser.
Should an employee not be able to resolve the matter outside the courthouse, California offers a couple of valuable protections for plaintiffs in harassment cases.
A plaintiff’s prior sexual history is inadmissible in a sexual harassment lawsuit, with the exception of a previous relationship with the defendant.
California law also gives plaintiffs' lawyers ability to recoup their fees in these cases, which can be both an important inducement for lawyers to take cases and for defendants to settle.
“The vast majority of our sexual harassment case settle before they get to trial,” Fulton said, explaining that the pitfalls of a ‘he-said, she-said’ case can go either way, which companies well know.
Not every case of bad behavior rises to the level of an actionable case.
The legal standard is conduct that is ‘severe and pervasive,’ said John Winer, an Oakland-based lawyer. However, it is up to a jury to decide what that means. There is no legal definition for how much harassing behavior it takes to reach that standard.
While every case of harassment might not rise to that level, Winer said he tends to believe women who complain of it, even as some perpetrators try to pass it off as a misunderstanding or an overreaction.
“I think a woman knows when a guy is being pervy – I think that’s the word,” he said.