Successfully litigating sexual harassment cases involves more than simply identifying unwelcome harassment and filing a claim. This article discusses some of the basic considerations employees should consider when retaining a sexual harassment lawyer, as well as addressing some of the fundamentals of sexual harassment law. This article is not legal advice. It is intended to be a general overview of this area of employment law.
As we have discussed elsewhere, in most circumstances objecting to sexual harassment (when possible) and reporting unwelcome harassment utilizing internal procedures established by your employer are vitally important first steps. In other words, the employee should make it known that any harassment — whether sexual or other protected class harassment — is unwelcome. Along with this, the employee should be sure to take advantage of procedures that the employer makes available to employees, such as reporting harassment to the human resources department.
While this may sound easy, in many instances taking these first steps is ‘easier said than done.’ For example, even objecting to or reporting harassment may be challenging where the employer is a small company, where the harasser is the owner or a high level executive, or where a culture of retaliation is allowed or condoned at the company. If you are a current employee experiencing sexual harassment at work, we recommend that you consult with a sexual harassment lawyer to ensure that the harassment stops, or, if it doesn’t, that you are in the best possible position to take legal action against your employer and/or the harasser if necessary. Obtaining legal advice — from an experienced sexual harassment lawyer — is often most helpful sooner rather than later.
While sexual harassment was first defined to be a form of sex/gender discrimination in 1986 in the Meritor Savings case, the law continues to evolve in this area. See e.g., Vance v. Ball State University , 133 S.Ct. 2434 (2013) (addressing who will be considered a manager with significant implications for the litigation of sexual harassment cases).
In Vance, the U.S. Supreme Court found that a manager may be more narrowly defined than an individual who directs work. Specifically, the Supreme Court found that an individual will be considered a manager or supervisor “when the employer has empowered that employee to take tangible employment actions against the victim.” Such “tangible employment actions” include making significant changes in employment status, including hiring, firing, failing or refusing to promote, reassignment to a different position with significant different responsibilities or a decision causing a significant change in benefits. Id. The Supreme Court attempted in Vance to clearly delineate who is a supervisor, although there will still be many cases in which the answer to this question is disputed. For example, in one of the Supreme Court’s other important decisions on sexual harassment, Faragher v. Boca Raton, 524 U.S. 775, 118 S.Ct. 2275 (1998), Ms. Faragher was a female lifeguard who alleged harassment by two male lifeguards; one of the males was able to hire new lifeguards, supervise their work assignments, counsel, and discipline them; the other male, had less authority and was “responsible for making the lifeguards’ daily assignments, and for supervising their work and fitness training.”
The point of who was a supervisor was not contested by the City of Boca Raton in the Faragher case, but after Vance the issue might be less clear-cut. The Vance majority arguably showed less concern for the problem of “intolerable work environments” than did the dissent (with the dissenting justices including the Court’s three female members — Justices Ginsberg, Kagan and Sotomayor, along with Justice Breyer). In any event, the Vance majority explained that: “The ability to direct another employee’s tasks is simply not sufficient. Employees with such powers are certainly capable of creating intolerable work environments . . . . but so are many other co-workers. Negligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions.”
Understanding who is legally deemed to be a manager is critical in sexual harassment cases. If sexual harassment is perpetrated by a manager and is accompanied by a tangible adverse action, then a form of strict liability applies. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257 (1998). This makes it nearly impossible for an employer to defend the case (although appropriate damages and whether there was adequate mitigation of damages, of course, may still be hotly contested even in a strict liability case).
While Vance was viewed to be a significant victory for employers (primarily by lawyers who represent employers), the case leaves open numerous avenues for employees to establish liability:
- First, an employer can be liable even for co-worker harassment under a negligence standard, a theory which may apply if the employer knew or should have known about the harassment and did not take appropriate steps to address the situation, whether a hostile environment or quid pro quo
- Second, if the employer was a supervisor and a tangible adverse action is taken against the victim — demotion, termination, etc. — then the employer can still be strictly liable as discussed above.
- Third, the standard for supervisor harassment still exists under the Faragher and Ellerth cases, with the change being that, in some instances, the outcome of the analysis regarding who will be deemed a supervisor.
After Vance, facility with Oregon’s aiding and abetting statute, ORS 659A.030(g) is critical to litigating these cases. This is one reason why consulting with an experienced sexual harassment law in Oregon is important. Some attorneys engage with these issues only occasionally, while also handling a wide array of cases outside the employment law field. The attorneys at Vogele & Christiansen work with these laws on a daily basis. Many of the employment law matters we have handled and litigated have involved sexual harassment and gender discrimination, and other protected class harassment. “Protected class harassment” means that, under state and federal law, harassment based upon race, age, religion and disability is unlawful just as gender or sex-based harassment is unlawful.
Consulting with or retaining a sexual harassment lawyer is an important decision. You will want to be comfortable with your attorney and confident of his or her ability to represent you, whether your case will require employment counseling, negotiations to reach an informal settlement, or will need to be litigated through trial.
If you believe that you have experienced unlawful sexual harassment, we recommend that you promptly contact and retain a sexual harassment lawyer who routinely handles these cases.