High-profile court cases, innumerable media reports, Hollywood films and books have brought us to this point in the saga of sexual harassment in the workplace: Employers are running scared from a perceived threat of frivolous claims, and real victims often forgo what could be huge cases because they fear the publicity’s effect on their careers. This hardly seems a desirable outcome of all the attention, two Chicago sexual harassment attorneys agreed recently.
“Suing for a pinch or a pat is most likely an overreaction, but the legal system is set up to reward such opportunism,” said Michael D. Karpeles, who represents employers in harassment cases for the firm of Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz. “If you are an employer on the other end of a lawsuit, you often will be faced with the choice of paying more to prove you did nothing wrong. Many employers will opt for the settlement, which is cheaper for them but a windfall for the supposed victim.”
Candace Gorman, an attorney who represents plaintiffs in harassment and discrimination complaints, flatly disagrees that women are filing false or exaggerated claims. But the two agree on this: The legal system can just as easily punish real victims.
“Many genuine victims will accept a fraction of what they believe they deserve to avoid the time, trauma and expense of protracted litigation,” Karpeles said.
The stakes are rising. Sexual harassment charges have jumped more than 120 percent since 1991, according to U.S. Equal Employment Opportunity Commission data. At the same time, the percentage of plaintiff wins has fallen and the percentage of cases thrown out of court has increased to almost half–42 percent.
Given this track record and the stigma surrounding harassment claims that can follow a victim throughout her career, how do you know when you have a case worth pursuing?
“It’s a gut reaction, I have to say, because it is such an uncertain area,” Gorman said. “It’s surprising we’re still fighting these same battles, but there’s still so much hostility around this issue, and courts still see many claims as frivolous. I still get the attitude in court that men will be men and what did she expect?”
That said, there is a basic test you can use to measure whether your obnoxious supervisor is merely annoying or causing such irreparable harm to your career that filing a lawsuit is a good option. The test hangs on two words: severity and frequency. As a rule, non-physical but clearly annoying behavior must happen regularly, or a single episode must be severe in nature to make a case, the attorneys said.
“First I look at frequency,” Gorman said, discussing how she determines whether a potential client has a case. “If it’s really outrageous behavior it can happen only once, but it usually has to happen a lot. And it has to be serious enough to make you feel sick to work there.”
Victims no longer have to prove their careers were harmed by the behavior, but it helps the case if they can, she added.
How to decide if you’ve really been in a nasty situation and aren’t just obsessing? Gorman suggests talking to a friend outside work before calling a lawyer.
“Sometimes when you talk to a lawyer (hungry for a case), you can be made to think you have the best case in the world. But the ones that really make it involve behavior that if you told a friend she would say, `Oh my God,’ ” Gorman said.
At the end of 1998 she filed a federal sexual harassment case on behalf of three police officers in Aurora who allege discriminatory work practices in the form of overtime assignments and sexual harassment in the form of a hostile work environment (they said they were routinely referred to as “you bitches”). The case is in its infancy, but already the women realize how uncomfortable it can be to file a claim, Gorman said.
“If you’re going to do this, you really have to think hard because your whole life is going to be investigated,” she said. “This is not a quick buck.”
Two final tips from the attorneys involve when to file and how:
If your company has policies on harassment, it usually pays to start with those internal remedies. If you get no response or suffer job setbacks for complaining, then take the case higher. And don’t wait long. You must file a case within 300 days of the last harassment incident. So if your boss sentenced you a year ago to filing duties for rebuffing his advances, but you haven’t had any contact with him since, you’ve lost the window to file.
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e-mail: kiddstew@msn.com
