(Note: Attorney Greg Ramirez is a civil litigation attorney in Ventura, California. His practice focuses on business, class action matters, personal injury and wrongful death. Here, Mr. Ramirez writes about Sexual Harassment 101 – What to do, How to Prepare and What to Expect.)
By Attorney Greg Ramirez
Clarence Thomas and Anita Hill – 1991
The year was 1991. I was a young lawyer fresh out of law school barely one year. Still idealistic and believing that, when people swore to tell the truth under penalty of perjury, they intended to do so.
George Bush had just nominated a young, conservative African-American federal judge named Clarence Thomas to the U.S. Supreme Court.
It seemed as if the young federal judge would be an easy nomination to approve as the successor to former Supreme Court Justice Thurgood Marshall. However, the nomination of Judge Thomas was about to become the backdrop for Senate hearings that would rock the nation, and that almost prevented now Associate Justice Thomas from being appointed.
A young , bright 20-something African-American lawyer named Anita Hill stepped forward, and revealed a history of sexual harassment by Clarence Thomas that was directed at her while she worked for him at the Equal Employment Opportunity Commission.
Ironically, at the time, Clarence Thomas was the regional head of the EEOC, the federal agency charged with enforcing the discrimination and sexual harassment laws in this country.
Human Drama and Shocking Details
It was stunning. It was shocking.
It was human drama that played itself out on televisions across this country over the course of several weeks – and is still being written and talked about today.
A recent documentary entitled “Anita: Speaking Truth to Power” was released this year, and tells the story of how Ms. Hill, a female law professor at the University of Oklahoma, had the courage to step up, stand alone, and disclose the shocking details of what she had been subjected to, and stood tall during the political maelstrom she was about to endure.
As I watched and monitored the Senate hearings, along with the rest of the country, it became apparent to me (and everyone else) that Anita Hill was telling the truth. Which meant that the man who was about to become one of the highest judges in our land, was perjuring himself to save his nomination.
For the first time in my life, I realized that judges were imperfect, just like the rest of us.
More importantly, the Anita Hill-Clarence Thomas hearings provided a stage that communicated to victims of sexual harassment worldwide that it was “okay” to speak out, and that it was “okay” to shed the light on a subject that had formerly been considered taboo. It created a national awareness for the first time in history that sexual harassment in the workplace was a societal problem that needed to be addressed and dealt with.
After Anita Hill Testified, Sexual Harassment Filings Soar – Not Much Has Changed
The Equal Employment Opportunity Commission reported that, in the five years following the Anita Hill hearings, filings of sexual harassment claims doubled from 6,127 in 1991 to 15,342 in 1996, and damage awards to victims of sexual harassment under the federal laws quadrupled from 7.7 million to 27.8 million.
Fast forward 13 years to July 2014…. News Headline: “American Apparel recently announced that it fired its founder and CEO, Dov Charney, over a flurry of sexual harassment scandals.”
Sexual Harassment 101
Most of us have either experienced, or been a witness to, sexual harassment in the workplace.
Like pornography, you instinctively know it when you see it. However, even today many people continue to ask: What is sexual harassment?
Under California law, harassment can include, but not be limited to, verbal harassment (obscene language, demeaning comments, slurs based on gender or sex, aggressive flirting), physical harassment (unwanted touching, physical assault, or a supervisor’s interference with normal work movement) visual harassment (sexually graphic pictures, e-mails, text messages, posters) and repetitive, unwanted sexual advances.
Significantly, the conduct must be “severe or pervasive”, which means that the unwanted conduct must alter the conditions of employment, or create a hostile or abusive work environment. In other words, one incident of sexual banter or being asked out on a date by your supervisor does not constitute “harassment” under the law. However, please note that one incident of unwanted touching – such as a pat on the butt, a touching of your breast or thigh, etc. – does constitute sexual assault and battery, for which you can bring a claim in court.
The court or the jury in a trial is asked to determine whether the alleged misconduct meets the “severe or pervasive” standard by considering the following factors, and then deciding whether a “reasonable person” would have found the conduct offensive and the nature of the conduct:
- How often and over what period of time the conduct occurred
- The circumstances under which the conduct occurred
- Whether the conduct was physically threatening or humiliating
- The extent to which the conduct unreasonably interfered with an employee’s work performance.
In regards to female victims of sexual harassment, if you file a lawsuit, please be advised of the following:
Female jurors and judges will be your harshest critics when sitting on your case. Based on my experience, in general female jurors are very critical of women who file sexual harassment suits and go to trial, for a number of reasons that have nothing to do with the law.
For example, if you are young and attractive, female jurors tend to cynically view you as “the other woman” – the real or imagined seductive secretary who flirts with and tempts their husband or boyfriend at work, and who “must have asked for it”. You are the “other woman” they fear is working on seducing and stealing their husband every day at his work.
Older female jurors tend to view harassment as “just part of the workplace”, and refuse to empathize with your plight, or understand why you filed a lawsuit.
While selecting a jury, I have often had the older female jurors tell me and the court in voire dire:
What’s the problem? I was sexually harassed and never ran and got a lawyer!”, or “I was sexually harassed once, and I just quit and got another job. Why didn’t your client just do the same thing?”
This mentality is common, and you will need to be prepared to understand and address it if you file a lawsuit. Please understand one thing: If you file a lawsuit, YOU will be the one put on trial.
What Jurors Are Asked to Consider
Consequently, now knowing how the court defines sexual harassment, and the factors that jurors are asked to consider, the following are some guidelines that I advise my clients:
If you are harassed at work, nine times out of ten it is not the first time the harasser has acted this way.
More times than not, there are other victims in the workplace – some of whom have already quit or been fired. Perpetrators of harassment continue to do so only because they get away with it, and no one ever complains – so they become more bold and
aggressive over time.
Harassed at Work? Find the Other Victims
If you are harassed, find the other victims. A case is much stronger if several women are complaining about the same conduct, as opposed to just one woman making allegations against a supervisor or owner of a company.
Don’t hesitate to object to the conduct and report it – in writing. More often than not, victims of harassment don’t object or file a complaint with the human resources department because they’re either too embarrassed or humiliated and believe if they do nothing the conduct will just stop by itself. In addition, they don’t want to lose their job, and they’re afraid of retaliation by the boss.
Trust me, the longer you wait to object to the conduct, the less sympathy the court will have later for you on. Most women wait, on average, six to nine months before they say anything about unwanted touching or flirting by their boss.
About 40 Percent of Victims of Harassment Never Complain
Approximately forty percent of victims of harassment never complain at all. Most never tell their husbands or boyfriends because of their embarrassment.
However, this is a substantial factor that a jury will consider, and hold against you, in determining whether you were actually harassed. I once represented an 18 year old girl who was harassed by her employer, who eventually sexually assaulted her and tried to rape her.
She was so ashamed and humiliated by the incident that she would throw up every day, but never said anything to her parents or boyfriend.
When she eventually quit the job six months later, her parents couldn’t understand why and criticized her for “quitting”. She finally told them of the harassment, and they took her down to the police station to file a report.
A jury found the defendant innocent in the civil case, because they just couldn’t understand why someone who had been so savagely attacked wouldn’t tell her parents for over six months and would continue to go to work every day with the man that attacked her.
Work-Place Sexual Banter or Emails Are Taboo
Do not partake in “on the job” sexual banter or e-mails. The first thing a defense attorney will do after being assigned your employer’s case to defend is troll through your hard drive at work to see if you sent any e-mails of a sexual nature to other employees (and especially the harasser) while on the job. The theme they are developing in order to defend against your lawsuit is that YOU are the aggressor, and the defendant is just an unwitting victim of YOUR advances.
Any e-mails or text messages containing any reference to sex, or pictures of body parts, will become fodder for the defense attorneys to put YOU on trial. On the other hand, if you start receiving sexually graphic e-mails or text messages from a supervisor at work – download them immediately, print them out, and SAVE THEM. They will come in handy as critical evidence to support your claim.
Similarly, any photos or messages that you post on social media such as Facebook or Twitter, or the rising number of dating-matchmaking sites such as Match.Com, will be thoroughly investigated and discovered by the defense attorneys, and be used as ammunition to support their case that you are just an oversexed flirt who is a Man-Eater at work.
They will leave no rock unturned in trying to find evidence to discredit you. Please be careful what you post on social media because that is the new field for defense attorneys and their investigators to look for ammunition to use against you and they can – and do – open up your Facebook Profiles even if you have a “lock” on them, or designate them as “private”.
Similarly, if you have previously gone out for drinks, or socialized outside of the office (lunch, dinner bike rides, etc.), with the supervisor you are now claiming harassed you, you will probably lose your case. Most jurors can’t understand why a woman would socialize with a man outside of work, and then complain that she a victim of his unwanted advances.
The lesson is simple: Don’t do it. It is only inviting trouble. Please understand that the rest of your female colleagues who work with you will lose respect for you if they know you socialize with your supervisor or male employees outside of work.
Consequently, don’t expect any of your female colleagues to go out on a limb and testify in your favor by telling the truth when their depositions are taken.
If you begin suffering from the physical symptoms of anxiety as a result of the humiliation, go to your doctor, and tell them what is going on at work that is causing you all the stress. It certainly helps support your case that you sought medical treatment for symptoms sooner, rather than later.
It is also favorable for your case if a doctor has treated you for anxiety, depression, or humiliation as a result of the harassment. And, by all means, if you are physically touched on the job, immediately report it to the police.
Unwanted touching is a battery – which is a crime. If you don’t report it, jurors will never believe that it happened.
The Bottom Line
This article is intended to be a primer for those of you who either have encountered sexual harassment in the workplace and didn’t know what to do, and for those of you who have never encountered harassment in the workplace so that you can recognize it in the future.
Of course, there is much more law developing every month both in California and around the country as it relates to this area of human behavior. I hope to address more issues for you in future articles.