Sexual harassment is a hot topic. Legally, America will have two seats occupied on the Supreme Court by men who have been charged with sexual harassment: Clarence Thomas and Brett Kavanaugh. Judge Kavanaugh was accused of attempted sexual assault. Sexual assault in layman’s terms simply means rape. The current President believes the mere statement by Judge Kavanaugh that he didn’t do it, is good enough for him.
It would be great for men if the courts where I have tried sexual harassment and rape cases simply believed the men when they simply said they didn’t do it. That is not what happens. You need proof that you couldn’t or wouldn’t have done it in order to get a not guilty verdict. You need evidence.
I am reminded of a case where a man was accused of raping his wife. He was found not guilty. I asked the woman who was the jury foreperson what helped us with our case. She simply referred to a question that I had asked the woman who was allegedly raped. I asked her, “Who removed your panties?” She said she didn’t remember. The jury foreperson said, “Every woman knows who removes her panties.” That question and analysis won the day, and he was exonerated with a not guilty verdict. I note that in that case, the wife was a white woman and the husband was a black man. The jury foreperson was also a white woman and the jury was racially mixed.
As a former equal employment ofﬁcer at Hughes Aircraft, I have seen and investigated a number of sexual harassment allegations. The majority of sexual harassment cases involve a co-worker at the place of employment. Sexual harassment has been defined as two types. One is what we call, Quid Pro Quo Harassment, the other is Hostile Work Environment.
Quid Pro Quo says, you give me some action, I will give you something. A person who is a superior or ‘boss” who says that he or she will give you a raise or promotion, if you allow him or her to perform a sexual act, feel you up, or give you a date, or lunch, or whatever. On the contrary, an employee who refuses may be ﬁ red or demoted, or denied a privilege.
Hostile Work Environment is a type of harassment that comes into play when a co-worker or boss uses sexual language, constantly, or tells sexually suggestive jokes, or displays sexually suggestive pictures or posters.
Clarence Thomas is alleged to have told Anita Hill a joke about a pubic hair on a Coke can. He also allegedly told jokes about “Long Dong Silver” and said his “member” was large. Of course he denied it and the Republicans either believed him or felt it was insigniﬁcant or unimportant in 1991. These are examples of sexual harassment. The average man will not have a political party or even friends to defend him. He must come up with some evidence and a good lawyer proving he didn’t do it.
Sexual harassment as a civil case can allow a person to sue on the basis of sex discriminationn retaliation, including constructive discharge, or even battery or assault, depending what other activities accompanied the harassment. The discrimination can affect a person’s ability to get a raise, a promotion, or cause a demotion. I have sued a number of employers for sex discrimination in hiring, promotions, demotions and terminations.
As long as the facts exists, demonstrating that one person was treated negatively and different than another employee or student at a school, makes them eligible to sue for discrimination. In cases of employment discrimination, the person can recover for lost wages, emotional suffering and distress, and physical pain, past and/or future. In addition, the law provides redress for loss of enjoyment of life, past or present, humiliation, anxiety, grief, inconvenience and/or disﬁgurement.
Harassment in a hostile work environment must be sufﬁciently severe and pervasive to the point of altering a person’s work conditions. These conditions must be more than mere teasing. The line to be crossed requires an analysis.
The primary defense where environmental cases are alleged, an employer can avoid liability by having a complaint procedure that includes the following: 1) demonstrating that they immediately exercised reasonable care to prevent and correct the harassing behavior, and 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities to avoid the harm. Both elements must be satisﬁed.
Employers are strictly liable for sexual harassment where the harasser is a supervisor in Title VII cases. An employer will not be liable for FEHA (Fair Employment and Housing Act) violation where immediate and appropriate corrective action is taken. This strict liability does not insulate the harasser of liability.
Sexual Harassment is a complicated subject. Those being charged and those alleging sexual harassment or sexual discrimination should seek out an experienced lawyer.
For further information, I may be contacted by phone at 626-398-1194.