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Harassers Put Employers In Legal Peril

4 min read

As a steady stream of sexual harassment allegations has surfaced in the media in recent weeks, some legal experts have predicted that those allegations will make their way to court in the form of lawsuits against the accusers’ employers.

“I am sure you’re going to see more” lawsuits, said Minna Kotkin, a professor of law at Brooklyn Law School who has written and lectured on issues of employment discrimination. “Because women feel like they’re going to be listened to and believed and, given all the press, taken more seriously.”

In the last month or so, about half the calls received by the Little Rock law firm Gregory & LaRue PLLC, which focuses on commercial and employment litigation, are related to employees thinking they’ve been sexually harassed, said attorney Elizabeth LaRue-Grigg. “What I’m seeing since the Harvey Weinstein scandal is more [calls] related to inappropriate contact, talking, locker-room banter, things like that, where [the employees] didn’t realize it wasn’t something they had to put up with,” she said.

Employers can protect themselves from sexual harassment lawsuits if they have a “good policy in place that prohibits harassment of that nature of any kind,” said H. Wayne Young, who is a partner with the law firm Friday Eldredge & Clark in Little Rock and is a member of its Labor & Employment Law Practice Group. He said companies also should have a procedure that employees feel comfortable with using to report harassment that they have experienced or observed.

“It’s very important that the company communicates with the employees about the policy and makes sure they understand the company is serious about the policy,” Young said. “And they intend to enforce it.”

Young said he also advises companies to have more than one way to report their complaints, such as a hotline for employees to call.

Kotkin said she thinks a lot of women don’t bother to complain. “They’re fearful of retaliation,” she said. “And they just decide to transfer or get a different job or tolerate it or whatever.”

She said the media coverage of sexual harassment allegations has helped, but the high-profile cases haven’t involved low-income workers, “who are much more vulnerable.”

Low-income workers also have a difficult time finding an attorney to represent them.

Egregious and Pervasive
A hostile work environment has to be what the law calls severe and pervasive, Young said.

The act has to be egregious conduct and “pervasive … meaning something more than an isolated comment or … one advance or request for a date that was rebuffed,” Young said. “Well, that’s not a hostile work environment.”

What constitutes legal harassment is based on the context and whether the conduct was welcome by the other employee, he said. “Winking at somebody or something that’s truly innocent or good-natured is something totally different than what went on in a lot of the reported allegations, obviously,” he said.

It becomes “extremely, extremely dangerous” for a company, though, to offer an excuse for an employee that includes “Well, that’s just Joe being Joe. Or he’s harmless, or he doesn’t mean anything by that,” he said.

An employer shouldn’t whitewash or coddle anybody, “because, well, that’s them being them,” Young said. “That needs to be corrected.”

Still, harassment allegations are difficult to prove because the allegations come down to the word of one employee against another, Young said.

Documents that appear to support the harassment allegation may be explained away by the employer, said LaRue-Grigg, whose law firm handles cases for both plaintiffs and the defendants.

To support their case, it’s important for employees to write everything down at the time of an incident and to tell others, Kotkin said.

Employees who have a successful case aren’t going to get rich from a lawsuit, LaRue-Grigg said. The lawsuits are designed to restore the employees to the financial position they would have occupied had they not been harassed.

“In a perfect world, you get the amount of money that you lost in wages,” she said. Attorney’s fees and a “little amount” for emotional damage also could be included in a judgment.

Once a company receives an employee complaint, it has to quickly investigate the claims, Kotkin said. “Employers have to be much more proactive in getting to the bottom of these situations early,” she said. “And maybe they will now.”

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