There are many factors to consider when evaluating how best to proceed with a sexual harassment case in Oregon. While every case is unique, this article will provide an overview of some of the most common issues that arise in sexual harassment cases.
The resolution of an Oregon sexual harassment case can yield a monetary award, including economic and non-economic damages, punitive damages, and attorney’s fees, as well as equitable relief. Equitable relief may include an injunction against further unlawful harassment (a legitimate goal is to help ensure that other employees do not have to experience unlawful harassment) and other provisions such as training and reporting requirements.
While the following discussion will focus on strategic considerations, it is important to know that there are two types of unlawful sexual harassment: quid pro quo and hostile environment. Quid pro quo means that the terms and conditions of employment are contingent upon the employee’s acceptance of the harassment, which may include sexual overtures, invitations to date, and other unwelcome conduct. “Hostile environment” harassment means that harassing conduct of a sexual nature is so severe or pervasive as to alter the conditions of employment and result in an abusive working environment. Both forms of sexual harassment are unlawful under state and federal law, and a claim can be made by employees regardless of gender.
Negotiate, File With BOLI/EEOC, Or File a Lawsuit?
Or perhaps all three?
In some cases, negotiations may result in a satisfactory outcome. Over the years, employers and their defense lawyers have become more adept at defending sexual harassment cases. In some instances, however, the harassment may be virtually indefensible, particularly if there has been a tangible employment action taken against the employee (the definition of a tangible employment action is discussed below). In such matters, in addition to the nature of the harassment, other key considerations will include the size and sophistication of the employer and the circumstances of the employee. In a particularly serious case, employers may be inclined to negotiate a quick, fair settlement, before any case is filed. Even after an administrative claim or lawsuit is filed, however, negotiations are typically an ongoing process throughout the life of a sexual harassment case.
In other matters, it will be necessary to file a lawsuit or an administrative claim with the Oregon Bureau of Labor and Industries (“BOLI”) or the Equal Employment Opportunity Commission (“EEOC”). In Oregon, employees have the option of filing with BOLI and later filing a lawsuit, or, if they choose to rely solely on state law claims, they may bypass BOLI altogether and proceed directly to court. An employee who wishes to file a lawsuit that will include claims under Title VII federal law must, as a prerequisite, file an administrative claim with BOLI/EEOC before filing a complaint in court. Note that Title VII applies to employers of 15 or more employees, while state law codified in ORS 659A applies to all employers regardless of size.
Many Oregon employees file first or exclusively with BOLI. This is often a reasonable option for employees who are unsure of how strong their sexual harassment case may be. There a typically few or no costs associated with a BOLI filing and the employer will typically (but not always) provide a defense based on the facts as the employer sees them. By filing a claim with BOLI, the employee (and/or her lawyer) can gather information about the case. It is also possible to resolve a case through the BOLI procedure, utilizing BOLI’s conciliation process.
Filing a lawsuit will be required in some sexual harassment cases. The considerations that make litigation the only option are discussed in more detail below. Litigation is often required in cases in which the damages are significant but where the facts concerning liability are disputed. Prior to embarking upon sexual harassment litigation, the employee’s long-term physical and emotional well-being must be taken into account (are you risk averse, or do you enjoy rolling the dice?). Obviously, a consultation with an experienced Oregon employment lawyer is recommended if you have experienced sexual harassment in the workplace.
As discussed below, the availability of corroborating witnesses and evidence is always a key factor in determining whether an employer will be inclined to negotiate a settlement prior to litigation. In some instances, an initial lack of supporting evidence will suggest that a BOLI filing will be the best way to proceed, while in other cases utilizing the Rules of Civil Procedure in state or federal court will be necessary to develop the full story such that a fair resolution can be reached.
Witnesses In Sexual Harassment Cases
Surprising as it may seem, few employment harassment cases are cut and dried. Let’s consider a ‘he-said’ and ‘she-said’ scenario: An employee asserts that her manager has subjected her to egregious sexual overtures and innuendo, perhaps even unwelcome physical contact; her manager denies any such behavior. Even a very strong case will often involve contested issues of proof at the outset.
In many if not most significant cases of sexual harassment, however, there will be corroborating evidence. This evidence can include notes, photos, or text messages, or other physical evidence, and it will often include the testimony of other employees. While a harasser may limit his or her attention to a single individual, oftentimes there have been other incidents; in some cases, many other incidents.
Second only to the credibility of the victim and the individual or individuals accused of harassment, the availability and credibility of corroborating witnesses is usually the most important element of a sexual harassment case. In a famous sexual harassment trial (including as co-counsel at trial one of my mentors in San Francisco, Alan Exelrod), a legal secretary, Rena Weeks, obtained a $6.9 million punitive damages jury verdict (later reduced to $3.5 million by the trial court). She worked for her employer for less than 3 months, and for the harassing attorney for only a month. Weeks v. Baker & McKenzie, 63 Cal.App.4th 1128, 74 Cal.Rptr.2d 510 (1998)
Why the huge verdict? Many factors were at play, including excellent lawyering and an employer who happened to be the largest law firm in the world at the time, Baker & McKenzie. But a key to the employee’s success was the testimony at trial of other witnesses who had also been sexually harassed by the same lawyer. Over the objection of the defense attorneys, the trial judge allowed seven other witnesses who had been sexually harassed to testify at trial. Had the judge granted the motion to exclude these witnesses from testifying, the outcome of the case would almost certainly have been much different. The success of the employee’s attorney in obtaining a ruling that corroborating witnesses should be allowed to testify at trial is critical to the outcome; it is also a fiercely contested issue in most sexual harassment trials. See EEOC v. California Psychiatric Transitions, Inc., 644 F.Supp. 2d 1249, 1274 n. 21 (E.D.Cal. 2009) (“One who has been personally subject to sexual harassment may introduce evidence of the harasser’s sexual misconduct toward others, of which she becomes aware during her employment even if the other acts occurred outside of the Plaintiff’s presence”); see also Biggs v. Nicewonger Co., 897 F.Supp. 483 (D.Or. 1995) (“Evidence as to … sexual harassment to which Biggs had knowledge is admissible. However, evidence relating to … sexual harassment not witnessed by Biggs or not related to her while she was on the job are not relevant to prove a hostile work environment in this case.”)
Documents In Sexual Harassment Cases
Sexual harassment cases are not typically document intensive. On the other hand, I have handled sexual harassment cases that were heavily documented. For example, diaries and notes maintained by an employee concerning the events may exist and they may be helpful to the case; on the other hand, keep in mind that any such documents will likely be subject to discovery by the employer in any legal proceedings down the road. In Oregon, do not record (by taping, digitally, or otherwise) events or conversations if you have not obtained permission for the recording. For in-person recordings in Oregon, lawful permission requires the consent of all parties present. Violation of this law is a Class A misdemeanor. ORS 161.615, ORS 161.635.
With the prevalence of social media, it is also important to keep in mind that any material posted on social media may be subject to discovery by the employer in the event of sexual harassment litigation. These digitally-preserved documents may be relevant to a number of issues pertaining to liability and damages. A detailed discussion of social media discovery issues is beyond the scope of this article. Any questions you may have in this regard should be directed to an experienced employment attorney.
Employer-generated documents can also play a key role in sexual harassment litigation. As briefly discussed below, concerning the Faragher -Ellerth defense, employer investigations into sexual harassment complaints are subject to full discovery when the employer intends to rely upon a Faragher-Ellerth defense. See Musa-Muaremi v. Florists’ Transworld Delivery, Inc., 270 F.R.D. 312, 317-19 (N.D.Ill. 2010) (“By asserting the Faragher-Ellerth defense, the employer ‘waives any attorney-client privilege that might apply to a defendant’s investigation documents or communications.’”)
Faragher-Ellerth Affirmative Defenses
Two important Supreme Court decisions issued in 1998 changed the course of sexual harassment litigation. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). These decisions imposed various obligations on both the employer and the employee that have significant impact on the course of sexual harassment litigation. The quality of the employer’s investigation now matters (and is discoverable by an employee suing for sexual harassment). The most basic statement of the obligations that these cases impose is that: In a case where there has not been a tangible employment action taken against an employee (such as demotion, a reduction of benefits or compensation, or firing), to invoke Faragher-Ellerth the employer must establish: (1) that the employer exercised reasonable care to prevent and promptly correct any harassing behavior, and (2) the employee experiencing the harassment failed to take advantage of any preventive or corrective opportunities provided by the employer or failed to avoid harm otherwise.
In a case in which a tangible employment action has been taken, the employer cannot rely upon a Faragher-Ellerth defense and claim that the employee failed to take advantage of the employer’s procedures for reporting and redressing sexual harassment in the workplace. Where the harassment is perpetrated by a co-employee, and not by a manager, for the employer to be held liable it must be established that the employer knew or should have known about the harassment.
Context and Conduct In Sexual Harassment Cases
The unsurprising truth is that the context of alleged harassment and the nature of the conduct make all the difference. Behavior that may seem inappropriate in an office setting might not be entirely out of line in the environment of a nightclub. Whether the conduct is unwelcome is also critical to this analysis. See Hall v. Gus Const. Co., Inc., 842 F.2d 1010 (8th Cir. 1988) (“Title VII does not mandate an employment environment worthy of a Victorian salon. Nor do we expect that our holding today will displace all ribaldry on the roadway. One may well expect that in the heat and dust of the construction site language of the barracks will always predominate over that of the ballroom. What occurred in this case, however, went well beyond the bounds of what any person should have to tolerate.”) We have discussed the elements of proof required to establish liability in other articles on our website, and you may wish to read these articles for further guidance on the applicable legal standard in a sexual harassment case.
A single incident of sexual assault will generally result in a sexual harassment verdict or judgment for the plaintiff. See Benjamin v. Anderson, 327 Mont. 173, 112 P.3d 1039 (2005) (one incident sufficient when a manager sexually assaulted an employee while giving her a ride home from the employer’s Christmas party). On the other hand, unwelcome behavior that is less severe but that is pervasive may well create an abusive working environment that will give rise to an employer’s liability for sexual harassment. For example, even in the absence of any unwanted physical contact, ongoing sexual references or the persistent presence of sexual material in the workplace (e.g., pornography, pictures, dirty jokes, etc.) can give rise to liability for hostile environment sexual harassment if the material or behavior is unwelcome and creates an abusive environment.
Each case must be analyzed on its own unique facts, but keep in mind that the context and conduct will be closely examined to determine both liability and damages in a sexual harassment case.
Retaliation In Sexual Harassment Cases
Some cases of sexual harassment that start out as minor matters can become serious issues if not addressed properly by employers. Following a complaint of harassment, employees may experience retaliation, either by the harasser or even by management or other employees. This type of behavior can escalate to the point at which a minor claim of sexual harassment can become a major claim of retaliation. Under Oregon and federal law, it is illegal for an employer to retaliate against an employee who files a claim of sexual harassment, whether that filing is made internally or to an outside entity such as BOLI/EEOC.
Sexual Harassment Class Actions
Sexual harassment class actions are rare, but not unprecedented. In what is generally acknowledged to be the first sexual harassment class action, Jenson v. Eveleth Taconite Co., 130 F.3d. 1287 (8th Cir. 1998), a group of female employees of a mining company joined together in a case that lasted over a decade. In recent years, the EEOC has brought a number of class action and multi-plaintiff sexual harassment cases. In one of the largest, hundreds of female autoworkers obtained a $34 million settlement from Mitsubishi. See EEOC v. Mitsubishi Mfg. of America, Inc., 990 F.Supp. 1059 (C.D.Ill. 1998).
While sexual harassment class actions are infrequent, cases involving more than one plaintiff or in which a number of witnesses are able and willing to testify are common. The availability of corroborating witnesses and evidence will bolster any employee’s sexual harassment case and will play an important role in determining the best possible approach to handling a sexual harassment case in Oregon.
This article is only a broad overview of some of the factors to consider in developing a strategy for the successful resolution of a sexual harassment case in Oregon. This article does not constitute legal advice. If you feel that you have been sexually harassed at work, you should contact an experienced employment attorney. The attorneys at Vogele & Christiansen have handled many sexual harassment cases, large and small, and we are available to discuss your case.