The “Me Too” Movement of 2017 and 2018 highlighted the many hurdles women face in the workplace. Unfortunately, real change is often advanced only after real tragedy. Just as Anita Thomas’ testimony helped strengthen sexual harassment laws in the 1990s, the Me Too Movement has given the victims of sexual harassment a renewed voice and strengthened our society’s resolve to hold harassers accountable. In this post we hope to explain what typically constitutes sexual harassment and what you can do about it if you are a victim.
Do you want to learn more about your legal rights, including the potential for a Morgantown sexual harassment accident claim?
Contact our Morgantown Sexual Harassment Lawyers at Wagoner Desai today for a free consultation. Let us help you.
WHAT ARE THE TYPES OF SEXUAL HARASSMENT?
Sexual harassment is prohibited under both federal and state laws. At Wagoner & Desai, PLLC, we practice in West Virginia, Pennsylvania, D.C., Maryland and Ohio. While there are some variations among the states, and between the federal laws and those of the individual states, the overall landscape is very similar. There are two main types of sexual harassment: quid pro quo sexual harassment and hostile workplace sexual harassment. In addition, there is the related claim of retaliation.
- Quid Pro Quo Sexual Harassment. “Quid pro quo” is a Latin phrase meaning something for something. Quid pro quo sexual harassment occurs when a supervisor requests an inappropriate favor in exchange for preferential treatment or refraining from negative treatment.
A supervisor that asks a subordinate to send a nude photo to avoid being subject to a company layoff is an example of quid pro quo sexual harassment. It could be less severe than outright termination like an imploration to “show some skin if you want to get off the graveyard shift.” It can also occur where the supervisor promises a positive action, such as agreeing to give an employee a raise or promotion in exchange for going on date with the supervisor.
While the details can vary greatly, the legal elements of quid pro quo harassment are always the same:
- The employee experiences unwelcome sexual advances, demands or comments (unwelcome as in the employee does not invite or appreciate the advances).
- The advances come from a supervisor with authority to impact the employee’s terms and conditions of employment.
- As a result of the employee’s rejecting the supervisor’s advances, the employee suffers a tangible negative employment action (typically termination, failure to promote, assignment of less desirable tasks or shifts).
See e.g. Okoli v. City of Baltimore, 648 F.3d 216 (4th Cir. 2011).
Quid pro quo sexual harassment is rarely so blatant as a text reading, “sleep with me or I will fire you.” The harasser is typically more subtle. Likewise, the negative employment impact is often less obvious than an outright firing. The devil is always in the details in proving these cases.
No one, regardless of age, payrate or position, deserves to be subjected to workplace harassment. If you believe that a manger or supervisor is asking you to act inappropriately, speak with a qualified sexual harassment lawyer as soon as possible. Our firm, Wagoner & Desai, PLLC, offers free, no obligation, consultations. Call 304-470-2056 or request a consultation here. We will always keep our discussion 100 percent confidential and there is nothing to lose by discussing the case.
- Hostile Workplace Sexual Harassment. Hostile workplace harassment can result from the unwelcome conduct of co-workers, customers, contractors, or many others on the job, in addition to supervisors.
Examples of hostile workplace sexual harassment include:
- A coworker discussing his sex life or sexual prowess.
- A coworker telling crude sexual jokes.
- A coworker sharing nude photos of himself or others.
- Unwanted touching from a fellow employee.
- Inappropriate sexual gestures.
- Unwanted comments about how you look or the supervisor’s opinion on your body or looks.
Often, a hostile work environment consists of several of these examples. In many workplaces, a “good old boy” or “locker room” culture is permitted or even encouraged by management. This is especially true in traditionally male dominated industries like oil and gas, law enforcement, trucking, coal mining, or manufacturing.
Regardless of the exact nature of the inappropriate conduct, the legal elements of hostile workplace sexual harassment are:
- The work environment was objectively and subjectively offensive (in other words, it would be offensive to a typical person and actually offended the injured employee).
- The harassment was based on gender or sex.
- The conduct was severe or pervasive (this typically means again that an ordinary person would find it inappropriate and be significantly affected by the harassment, determined based on the frequency and severity of the conduct, the effect on the employee’s psychological well-being, whether the employee was threatened physically or humiliated, among other factors).
- The conduct can be attributed to or imputed to the employer (typically this means the employer must be aware of the conduct and have either fostered it or failed to appropriately remediate or prevent it, though not always in West Virginia).
See e.g. Smith v. Rock-Tenn Servs., 813 F.3d 298 (6th Cir. 2016).
If you are experiencing inappropriate conduct that is sexual in nature at work, you should talk with an experienced lawyer to discuss your options. We all need to earn a living, and no one should be forced to tolerate hostile words, comments or worse simply to feed themselves and their family. If you think you have been subjected to a hostile work environment, call Wagoner & Desai, PLLC at 304-470-2056 or request a free, no obligation consultation here.
- Retaliation/Retaliatory Discharge. These claims occur when an employer or supervisor terminates an employee or otherwise changes the terms of their employment because the employee reports misconduct. Typically, these cases occur in a scenario like this: Manager does something inappropriate, for instance he makes a comment about how much he likes a female employee’s breasts and asks her to send him topless photos. The employee is, of course, offended and reports the conduct to the human resources department. H.R. intervenes, reprimands the manager, requires the manager to attend a harassment training session and notes his file. Two months later the manager tells the female employee that she is being terminated. Often, the manager will state that the termination is for some other reason, or he will simply say the position is “at will employment” and they are “going in a different direction.” The female employee has been a good employee. The manager is firing her for standing up for her rights and using the other rationale as “pretext.”
Fortunately, the law protects the employee. To prevail on a sexual harassment retaliation claim, the victim must prove that she engaged in a protected activity and because of doing so, her employer took a materially adverse action against her. Taylor v. Solis, 571 F.3d 1313 (D.C. Cir. 2009).
Two items are important to note here. First, the protected activity (i.e. complaining about sexual harassment) need not be something that could give rise to a claim for sexual harassment on its own.
In the example above, a single comment about an employee’s breasts and a request for photos is probably not sufficient to subject the employer to liability but complaining about the comment to H.R. is clearly appropriate and protected activity. Second, the employer need not fire the employee. All that is required is some adverse action that would dissuade a reasonable employee from reporting the harassment or discrimination. Thus, if the employer thereafter gave the employee less desirable work assignments or shifts or subjected her to unwarranted discipline, this could also give rise to a claim.
As with most of these types of claims, the retaliatory intent of the employer or supervisor is typically masked with a pretextual reason for the termination, demotion, or other adverse employment action. The core issues in these cases are typically: How believable is the employer’s pretextual reason for adverse employment action? How close in time was the protected activity (reporting) and the adverse employment action (e.g. termination)? How significant was the adverse employment action?
If you think you have been retaliated against, talk to a lawyer. You should not be punished for standing up for yourself. At Wagoner & Desai, PLLC are free. We are available by phone at 304-470-2056, zoom, email or in person and we have a great deal of experience with retaliation claims.
WHAT TYPES OF MONEY CAN YOU RECOVER IN A MORGANTOWN SEXUAL HARASSMENT CLAIM?
Victims of Morgantown sexual harassment can recover money or damages from their employer and/or the harasser. There are three types of damages available in a sexual harassment lawsuit: special damages, general damages and punitive damages. In addition to damages, federal and state laws typically allow for an award of attorneys’ fees and case expenses if you prevail. Note that this post discusses the types of damages generally. There may be additional state law wrinkles not discussed here. Always consult a sexual harassment attorney. We offer free consultations at 304-470-2056. Many other sexual harassment lawyers also offer free consultations.
- Special Damages. Special damages are quantifiable, out of pocket losses. To understand the types of special damages, an example is helpful. Tasha reports her supervisor for sexual harassment, and he fires her in retaliation. Tasha was paid $1,000 a week at this job. It takes Tasha six months to find a new job and while it is a suitable job in her field, it only pays $900 a week. Tasha also goes to a therapist because of severe emotional distress and PTSD from her mistreatment and her therapy bills are $7,500. Her case goes to trial eighteen months after she is fired (this is a very short timeframe in reality, lawsuits take time).
- Back Pay. If Tasha prevails, she would be entitled to compensation for her past lost wages. This is known as “back pay” and she would be entitled to $31,200-the sum of six months of no wages ($26,000) and a year of earning $100 less a week ($5,200). Under the law of most states and federal law, back pay is a jury issue and if she is successful it is “presumptively due.” See e.g. Albemarle Paper v. Moody, 422 U.S. 405 (1975).
- Front Pay. Compensation for future lost wages is known as “front pay.” Under federal and most state laws, the decision to award front pay is left to the judge, not the jury. See e.g. McCue v. Kansas Dept. of Human Resources, 165 F.3d 784 (8th Cir. 1999). If a plaintiff is successful, the judge is tasked with determining if a plaintiff is entitled to reinstatement of his or her position (getting your old job back), front pay, or neither. Often, reinstatement is simply not possible or prudent in light of what has occurred between the parties (no one wants to work with someone who has sued them or that they have had to sue). In those instances, “an award of front pay is sometimes appropriate….” Shore v. Federal Express Corp., 777 F.2d 1155 (6th Cir. 1985). The factors that a court will consider in deciding whether to award front pay include the victim’s: age; career aims and intentions at the time of wrongful termination; the victim’s mitigation efforts; the length of time reasonable employees stay in the victim’s prior and current positions; the length of time reasonably anticipated for the plaintiff to obtain complete substitute employment. Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995). In the case above, Tasha would likely be able to recover some front pay (the future value of the $100 a week difference in your past and present pay rate). The amount of front pay is to the discretion of the trial judge. A good lawyer can make a big difference in explaining the reasonableness of a significant front pay award.
- Medical Expenses. When you experience severe emotion distress and require medical or psychological care due to your harassment, you can recover the costs of your actual medical expenses. Whether you receive an award for these damages will depend in large part on the testimony of the victim as well as the treating physicians and any experts your attorneys retain. In the hypothetical above, Tasha would likely be able to recover her $7,500 in therapy expenses.
- General Damages. General damages are awarded to compensate the victim for emotional harm caused you by your employer and/or harasser’s actions. Typical items of general damages are: mental anguish; annoyance and inconvenience; loss of enjoyment of life; embarrassment; fright; and pain and suffering. These damages are typically awarded by a jury. While you and your attorney cannot suggest an appropriate amount of general damages to the jury’ the jury’s award will be driven by: the egregiousness of the employer/harasser’s conduct; the severity of your emotional and mental anguish; the financial impact on your life; and the jury’s own common sense and experiences. The general damages award in a Morgantown sexual harassment case can be very significant.
- Punitive Damages. Punitive damages exist to punish the defendant and deter others from acting similarly. The standard for punitive damages varies by jurisdiction. They are only awarded in cases of very egregious conduct and typically are only available where a defendant acts with malice or a reckless disregard to another’s rights. See e.g. Kolstad v. American Dental Assoc., 527 U.S. 526 (1999).
- Attorneys’ Fees. Federal law and most applicable state anti-discriminations statutes provide for an award of reasonable attorneys’ fees and case expenses if you prevail. This is contrary to the typical “American Rule“ followed in most lawsuits, where each side pays its own attorneys’ fees. The amount of fees awarded will depend on a number of factors including the time expended by the attorney, the complexity of the case, the skill required, any opportunity cost to the attorney, the risk involved for the attorney, the nature of the attorney-client relationship, awards in similar cases, the nature of the fee agreement and the “undesirability” of the case. See e.g. Hensley v. Eckerhart, 461 U.S. 424 (1982). For a more detailed discussion, see here.
- A Note About Damages Caps. Most state laws impose no caps or limits on compensatory (general and special damages) awards in employment actions. We practice in West Virginia, Ohio, Pennsylvania, D.C., and Maryland, as well as in the federal courts.
In D.C. and West Virginia there is no cap on general or special damages. In Pennsylvania, back pay is limited to three years prior to the date of filing the complaint, which effectively is only a limit on those who are dilatory in pursuing their rights. 43 P.S. § 962. There are no other caps in Pennsylvania. In Ohio, the general caps on “noneconomic” (i.e. general) damages apply to employment claims. See O.R.C. 2315.18, Luri v. Republic Sers., 193 Ohio App.3d 682 (8th Dist. 2011). Thus, the most that a claimant may recover in general damages is the greater of $250,000 or three times the economic (“special”) damages up to a maximum of $350,000. Maryland’s law essentially mirrors the federal caps below.
Under federal law, “caps” or maximum recovery amounts are imposed. These set a maximum award on the general and punitive damages. Importantly, these caps do not affect back pay, front pay, or attorneys’ fee awards. The combined punitive and general damages caps are:
- For employers with 15-100 employees, the limit is $50,000.
- For employers with 101-200 employees, the limit is $100,000.
- For employers with 201-500 employees, the limit is $200,000.
- For employers with more than 500 employees, the limit is $300,000.
Importantly, as these numbers hint, employers with fewer than 15 employees are not subject to Title VII. These employers must be pursued under state law only, though most states also have a minimum number as well.
It is important to note that our discussions about damages are illustrative only. The measure of damages in any case is driven by the facts of that case and the application of the law to those facts. More importantly, since almost all employment cases carry some risk of a defense or $0 verdict, the most important valuation is the settlement valuation. Experienced Morgantown lawyers know the applicable law and keep up to date on the latest developments in the underlying law and the state of juries in their region.
A good lawyer can therefore not only help you prepare your case for court but determine your risk in going to court and recommend an appropriate settlement value. We would love to discuss your case with you. Feel free to call us anytime at Wagoner & Desai, PLLC at 304-470-2056 or request a free, no obligation consultation here.
Wagoner Desai, PLLC
265 High Street, 3rd Floor
Citizens Bank Building
Morgantown, WV 26505
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