Litigation involving sexual harassment, in a variety of forms, emerged as a recurring headline in 2017 and shows no sign of slowing in 2018. The increase in sexual-harassment claims coincides with the widespread and still-burgeoning social movement that has encouraged victims of sexual harassment to come forward and declare that they, “too,” have been victimized.
There are many steps that companies can take to limit the exposure they may face from incidents of sexual harassment in the workplace. Among them, employers should stay abreast of the changing landscape of the legal exposure they may face from sexual harassment claims; implement policies and promote business cultures that minimize the prospect that such claims will ever be raised in their companies; and prepare themselves to address such claims when they are raised, including by conducting prompt and fair investigations into the allegations and managing any public-relations fall-out.
Quinn Emanuel has significant experience advising and assisting employers with all manner of legal concerns regarding sexual-harassment litigation— including by helping employers avoid facing such claims and mitigate their exposure when they arise. Based on our experience, we present below some instructive background and practice pointers that we hope will be useful in managing litigation risks from sexual harassment claims.
Claims Commonly Raised by Alleged Victims of Sexual Harassment
Alleged victims of workplace harassment have a litany of legal theories at their disposal to seek damages and other remedies against employers of alleged harassers. The most well-known among these is Title VII, 42 U.S.C. § 2000e, et seq.—the chief federal employment discrimination statute. Although Title VII’s language does not explicitly address “sexual harassment,” it includes protections against sex discrimination, and it has been long settled that sexual harassment is an actionable form of sex discrimination.
Broadly speaking, a Title VII plaintiff may pursue damages against an employer under different theories of liability, depending on whether or not the alleged harasser was a supervisor. If the alleged harasser was not the alleged victim’s supervisor, then the employer can be liable for the harassment only under principles of common law negligence—when the employer knew or should have known of the harassment but failed to take
corrective action.
By contrast, if the alleged harasser was the alleged victim’s supervisor, then the employer can face respondeat superior, or vicarious liability, for the harassment, regardless of whether the employer knew or should have known about it. The harshness of this rule has come to be somewhat mitigated by what is known as the “Faragher/Ellerth affirmative defense,” which affords a safe harbor to employers who prove that they exercised reasonable care to prevent and correct any sexually harassing behavior, and that the complaining employee unreasonably failed to take advantage of the preventative or corrective opportunities offered by the employer. Helm v. Kansas, 656 F.3d 1277, 1285 (10th Cir. 2011).
Traditional remedies under Title VII include injunctive relief, reinstatement of employment if the plaintiff was terminated, back pay, and front pay in some cases. Both compensatory and punitive damages are also available in intentional discrimination claims brought under Title VII—sexual harassment claims included. Accordingly, sexual harassment plaintiffs typically seek compensatory damages for the emotional distress and humiliation that they suffered due to the harassment. The amount of compensatory damages that may be awarded in Title VII cases is subject to a cap depending on the size of the employer: $50,000 for employers with between 14 and 100 employees; $100,000 for employers with between 101 and 200 employees; $200,000 for employers with between 201 and 500 employees; and $300,000 for employers with more than 500 employees. 42 U.S.C. § 1981a(b) (3). To be awarded punitive damages, a plaintiff must show that the employer exhibited malice or a reckless indifference to the federally protected rights of the plaintiff. Punitive damages are subject to the same value caps as compensatory damages.
Id.
In addition to federal causes of action, it is common for plaintiffs in sexual harassment cases to assert state- law claims in the same suit, or to forgo Title VII claims altogether in favor of more generous state-law remedies. States have their own laws against sex discrimination, which are nearly uniformly interpreted to forbid sexual harassment, similar to Title VII. However, it is important to note that many state statutory claims of sexual harassment...
