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SEXUAL HARASSMENT

Sexual Harassment Employment Law in Minnesota

There are two types of sexual harassment claims in employment law: 1) quid pro quo; and 2) hostile work environment.

Quid pro quo is Latin and means “something for something.”  A quid pro quo sexual harassment claim is when your supervisor or manager asks for sexual favors in exchange for promotions, more pay, or other work-related benefits.  These favors can include: grabbing, groping, leering, and touching.

Hostile work environment sexual harassment is when your peers (or managers and supervisors) make inappropriate sexual comments at work, raise sexual innuendo, or worse – like trying to touch or grab you in inappropriate ways.  You need to notify your supervisors or human resources (HR) right away if a coworker is making sexual comments.  Your employer is not liable for hostile work environment sexual harassment unless you can show that managers, supervisors, or HR knew about the problem and didn’t do anything to take corrective action.

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Quid Pro Quo

We prove quid pro quo sexual harassment primarily through your testimony.  Of course, it’s nice if there’s corroborating evidence (other witnesses, emails, etc.) but not necessary.  Your supervisor or manager will probably deny it, but that’s ok.  That’s fantastic, in fact – because it creates a fact dispute that a jury will need to resolve.

Most employers hate jury trials and will settle in order to not have to try a case.  They try to get sexual harassment cases dismissed on motions for summary judgment, but that’s very difficult to do in a quid pro quo situation where you claim that your supervisor offered or required you to perform sexual favors in exchange for work benefits, and your supervisor denies it.

Hostile Work Environment

The most important evidence to winning this type of case is that you need to show that you took steps to notify management of the sexual harassment, but management took no action. If your coworkers are making comments or grabbing you or touching you or whatever, you need to tell a supervisor as soon as possible. This is for your safety (which is the most important concern) and your potential legal claim.

Your employer is not liable for the acts of rank and file employees unless you tell management and they don’t take corrective action. Just because your coworkers are sexually harassing you, your employer is not automatically liable. Your employer is liable, though, if it knows about the sexual harassment and doesn’t take corrective action to protect you. So if you notify a supervisor about the sexual harassment, and the supervisor does nothing, and the harassment continues, then you have a strong case for hostile work environment sexual harassment against the employer.

If it’s a manager or supervisor who’s sexually harassing you, then your employer may be automatically liable.  But not necessarily.  You should still tell Human Resources or another manager or supervisor about the sexual harassment to giver your employer a chance to correct it.

 

Sexual harassment means and covers many things under federal and Minnesota law.  Your boss can’t offer you advances in your career in exchange for sexual favors.  Nobody can make comments about your appearance, your body, your sex life, your partners, or your sexual preference.  Of course, sexual harassment also includes sexual advances, comments, touching, groping, patting, rubbing, or grabbing.  Basically, a good general rule is that if it makes you feel uncomfortable or creeped out, there’s a good chance that you’re being sexually harassed.

Constructive discharge is a legal concept that you can use to prove a wrongful termination claim even if your employer didn’t technically fire you and you actually quit.  Sometimes it can arise in sexual harassment claims.  You can argue that your employer’s failure to take action to correct the hostile work environment made working conditions so terrible and onerous that you had no choice but to resign.  Or that your supervisor’s demands for sexual favors left you no choice but to resign.  That allows employees to pursue damages for wrongful termination (through the constructive discharge) in addition to sexual harassment.

Beware, though: proving constructive discharge is hard – it’s a high burden.  Make sure to talk to an employment lawyer before you quit on the theory of constructive discharge (unless you feel that your personal safety is in immediate jeopardy).

You’re right to ask this question as you make a decision on whether to pursue a case in court or not.  Starting an employment case is a big decision and you should know what your potential return is for the investment of your time and energy.

The monetary value of your case depends on a lot of things, but mainly:

  • the strength of your case on the merits: can we prove that you suffered sexual harassment and that management knew about it and did nothing?;
  • the amount of damages you’ve suffered: this is mainly emotional distress damages in sexual harassment cases, but can also include wage loss or cost of past/future medical care and counseling;
  • the offensiveness and egregiousness of the hostile work environment. How awful was the sexual harassment and what can we present to the jury?  How long did the conduct continue? Did management have notice or participate in the abuse? Was there touching or grabbing?  Generally, a sexual harassment case gets more valuable the worse the conduct was, as it increases the possibility of a large punitive damages award;
  • whether your employer has the ability to pay a large amount. Individuals or small businesses generally don’t have the resources to pay a large judgment or settlement and can use this as leverage to reduce the settlement value of your case.  Large companies, on the other hand, generally don’t have this issue; and
  • your tolerance for risk. The longer you’re willing to pursue a case and your willingness to accept the risk of trial will increase the value of your case.  Because of the time value of money and the certainty of a settlement, early settlements generally receive a discount from settlements later in litigation.

We get this question so much that we’ve created a separate, detailed page going through each of these factors, right here.  Check it out – it will give you a good idea of what to expect when we talk about your case at your free consultation.

The types of damages available for a sexual harassment claim include:

  • Emotional Distress. This is typically the largest category of damages for a sexual harassment case. It can be tough to testify about, though, because you’ll need to talk about how the conduct made you feel;
  • Lost wages. This may come up if you had to miss work due to the sexual harassment or you’re claiming constructive discharge;
  • Medical bills – past and future. If you had to seek counseling or will need counseling or psychological care in the future due to the sexual harassment, you can recover those expenses;
  • Punitive Damages. This can also be a large category of damages that you can recover in sexual harassment cases. If we can show that the employer’s conduct was particularly awful or offensive, or that management knew about it or participated in it, juries may award large punitive damages to you; and
  • Attorney fees and costs. If you win a sexual harassment claim, your employer has to pay your attorney fees and costs.

That’s a tough question to answer because there’s really no “average” settlement.  The value of a sexual harassment case depends on the strength of your case; the damages you suffered; the ability of the employer to pay a large amount (if the employer is insured, even better); the offensiveness of your employer’s conduct; and your tolerance for risk and willingness to go to trial.  See the paragraph above for more detail.

But we know that many employees looking for answers right now just want to see some numbers from actual settlements, so here are some numbers.

  • We represented a female firefighter who endured gender discrimination and sexual harassment. Male employees, including supervisors, targeted her and made her the subject of a ruthless stream of sexual comments, innuendo, touching, and ultimately – grabbing.  Her supervisors ignored or brushed aside her complaints. Male firefighters told her that her “ass looks nice” when she exercised and told her how good she looked “bent over.”  They made comments about her breasts and said that they should lower the room temperature to make her nipples show.  This case settled without filing a complaint: the defendants paid $100,000.
  • We represented a material handler in inventory control who had been sexually harassed by her supervisor. The supervisor said gross things to her about her body and asked her to sit on his lap.  He also watched pornography in the office.  She reported the behavior to Human Resources and HR didn’t do anything, so the conduct continued.  Because the employer had notice of the hostile work environment and didn’t do anything, and because the potential for punitive damages was high, the employer settled very early in the litigation for $125,000.

Please note that just because these employees received the above results doesn’t mean that’s what your case is worth.  These are just examples.  Your case value depends on a number of things that we’ll talk about during your consultation.

You need to move quickly on these.  In Minnesota, you’ve got just one year from the date of the last sexually harassing action to file a claim with the Minnesota Department of Human Rights or bring a lawsuit.  You’ve only got 300 days from the date of the last act to file a claim with the Equal Employment Opportunity Commission.

First of all, if you’re searching for answers right now because you’re being sexually harassed at work, we’re very sorry that you’re in this position.  We know how awful it is to be in a situation where the only thing you want to do is work, but your employer is making it nearly impossible.  It’s abusive, unfair, and not right.

Second, you need to make sure your personal safety is guaranteed.  If you feel physically unsafe at work, notify the police and don’t go back to a situation where you can be harmed.

Third, you need to notify your supervisor of the sexual harassment if you haven’t already, preferably in writing.  You’ll need to show that management had notice of the hostile work environment and didn’t do anything, so make a written record of you notifying them.  If your supervisor or managers are the ones creating the hostile work environment, then don’t worry about it – the employer is liable for their conduct.

Fourth, write everything down that happened to you.  Write down all the incidents of harassment.  Write down who harassed you, when, and where.  Write down when you told management or supervisors about the harassment, how you told them, and what actions (if any) they took.  Write down the names of employees that you think may have useful information.  Write down the types of documents or emails that you think may have good information about your case.  Write down everything – the reason for this is that your memory will probably fade over time and you want to document things while they’re fresh in your mind.  If you pursue a sexual harassment lawsuit, your trial likely won’t be for at least 12 to 18 months, so you want to have something that you can refer to – write everything down.

Fifth, call us for a free consultation to talk about your case.

Contact Our Minnesota and Wisconsin Sexual Harassment Employment Lawyers for a Free Consultation.

All consultations are freeDuring your consultation, we’ll discuss the strengths and weaknesses of your case, the potential value of your case (e.g. how much your case is worth), and the best way to proceed.

The process for a free consultation with our employment lawyers is pretty simple. First, call our firm. You’ll talk to a clerk for about 5-10 minutes. They’ll get some basic information about you and your case.

About 3 or 4 hours later, you’ll get a call from us. If you’ve got a case that’s a little outside our wheelhouse, then we’ll will call you and give you a referral for an attorney that we think is better suited to handle your case. Our number one goal is to make sure you get the best representation possible for your particular matter – if that’s not us, we’ll tell you immediately and get you to someone else that we trust.

If we think that we can help you, then someone will call you and set an appointment for you to talk to one of our employment lawyers. We’ll call you at time that works for you and discuss your case and give you our honest assessment of its strengths, weaknesses, and value. We’ll then set a time where you can come to our office and meet your employment lawyer personally – at that time, we’ll discuss your case in more detail, sign a contingency fee retainer agreement, and talk about the process of moving forward with your case.

When you come in to meet your employment lawyer, please bring all relevant documents that you want us to look at, including: pay-stubs personnel file (if you have it) employment handbook (if you have it) any letters from your employer, including your termination letter any text messages or emails that you think are important and any other documents that you think might be helpful.

THE MADIA LAW WAY

We have a process that works in getting exceptional results for our clients. 

We are trial lawyers who prepare every case for trial from Day 1. Investigation and legal research are the first things we do, and we spend a lot of time on them. Because we haven’t filed the case yet, we have complete control – the defendant has no say and we want to use this time wisely.  We interview witnesses that can help us prove the case.  We’ll ask you for all relevant documents in your possession and review those carefully as well.  We also will spend some time conducting legal research about unique issues in the case.  We pull the jury instructions that the judge will ultimately charge the jury with after closing arguments at trial. 

Our next step is typically to send a demand letter to the defendant. In the letter, we thoroughly lay out: the facts surrounding the defendant’s misconduct; the applicable law (including statutory and case citations) that make clear that the defendant broke the law; an analysis of your damages and the defendant’s monetary exposure; a demand for a monetary amount to settle the claim; and an instruction to preserve all relevant evidence, including electronic evidence. The point of this letter is to give the defendant a chance to do the right thing and pay a fair amount before litigation, and to give the defendant an opportunity to present any defenses or evidence it wants us to consider before moving forward.  Sometimes we skip the demand letter if there are strategic reasons to move straight to filing, but we typically give defendants a chance to do the right thing.

If early negotiations fail, great – we file a Complaint and serve the defendant with it. A Complaint is a legal document that states the facts of what happened and alleges how the defendant broke the law. It formally starts the lawsuit.  Many lawyers draft complaints in a general and relatively vague way, just to get it done and filed – because that’s all that’s really required.  We take a different view. We view the Complaint as our first chance to tell your story to the judge, and we take it seriously. So we draft detailed complaints and include legal citations to statutory and judicial authority on unique points.  Sometimes we’ll include a number of exhibits, diagrams, or other demonstrative aids to help the Court understand our claims.  A secondary benefit of this approach is that defense lawyers reading the Complaint can become educated on the problems of their case and the state of the law – sometimes this leads them to reach out to us shortly after service of the Complaint to re-initiate settlement negotiations.  Of course, by that time, the price for settlement has gone up.

Some lawyers view written discovery as a necessary evil – something to get done and out of the way before depositions.  Not us.  Written discovery is a gift and an opportunity.  We spend a great deal of time crafting requests for documents and interrogatories (questions for the defendant to answer in writing) that are specific, detailed, and tailored to get what we need to prove our case.  Many lawyers – even great ones – think written discovery is a waste of time because defense lawyers typically answer them on behalf of their clients and can try to stonewall with legalese and objections.  We view this as a wonderful opportunity.  In our experience, most defense lawyers can’t help themselves when answering discovery: they over-state their defenses and make assertions that their clients will not be able to support in testimony. So we get to commit the defendant to defenses that they can’t back up, leading to contradictions, confusion, and chaos in their depositions later on.  We also use Requests for Admission – which many lawyers don’t.  The Federal Rules and Minnesota Rules of Civil Procedure allow us to ask defendants to “admit” certain facts.  We send them RFAs that are very difficult for them to deny.  Of course, they do it anyway, but that sets them up later for cost and fee-shifting, which the Rules mandate for defendants that deny RFAs that are later proven true.  And usually, we can get the defendants’ own witnesses to admit facts that their defense lawyers denied in RFA.  That’s a great situation that leads to more chaos and confusion on the defense side.

One last point on written discovery – we send multiple waves of it throughout discovery.  We typically send 3 or 4 sets of written discovery requests to defendants throughout discovery.  This compounds the problems for them, because the defense lawyers continue to overstate their defenses, but now run into contradictions from not just the defendant witnesses’ deposition testimony, but also their own previous discovery responses.  This makes for a great record that we can present to the judge at dispositive motions, and use for impeachment at trial.

This is our chance to question relevant witnesses, on the record with a court reporter (we typically videotape important depositions as well). We get to confront the defense witnesses with all of the evidence we’ve developed through written discovery and document production. By this time, the defendant put its witnesses in an impossible position through its written defenses, which are often untrue and indefensible.  So the witness has to either lie to support the defense, or admit it’s not true.  That’s a dilemma that works for our clients either way, no matter which option the witness takes.  We use depositions to expose contradictions, create a record for dispositive motions, lock witnesses into their stories so that we can impeach them later at trial, and sometimes, to show defense lawyers how hopeless their case is.  We often calls from defense counsel shortly after depositions of their clients, seeking to re-start settlement negotiations.

The defendant will usually make a motion for summary judgment after discovery, asking the Court to throw out the case without having a jury trial. Because we’ve hit discovery so hard – both through written discovery and depositions – this is a tough motion for defense counsel to write in our cases.  We draft our response for the Court and now get to bring everything together: the admissions, contradictions, nonsense, and obvious fact disputes that we’ve uncovered through discovery.  We tell a compelling story that wraps everything together for the Court and makes clear that the defense motion has to be denied, and the defendant needs to face a jury for its conduct.

Sometimes, we’ll even make an affirmative motion for summary judgment, asking the Court to grant judgment in favor of our client without a trial. These motions are generally rare for plaintiffs to make, because the defendant can usually point to some fact dispute on its intent or some other factor that necessitates a trial. But we make affirmative summary judgment motions significantly more than is typical for plaintiffs, and that’s because the work we put in during discovery helps build a fantastic record to do so.

After the Court denies the defense motion for summary judgment, the defendant has only 2 options: 1) do the right thing and pay you a fair amount to our client to settle your claim (usually much, much more at this point than the defendant could have paid at the beginning of the case to settle); or 2) face a jury for its conduct and risk an enormous verdict. This is the dilemma that we have been creating and forcing the defendant into for the entire case. We’ll engage in settlement negotiations at this point from a position of extreme strength, mainly because most defendants are (rightly) terrified of facing a jury to defend their conduct.

This is, candidly, our favorite part of the case – why we went to law school: to hold the powerful accountable before juries.  We prepare heavily for trial, including: detailed witness preparation, focus groups, and mock trials.  At this point, the potential outcomes and consequences for the defendant are much more severe than if it simply did the right thing at the beginning of the case and paid a fair amount to compensate our client for its misconduct.  As we advocate to the jury for our client, we’re also mindful of protecting the record so that defendants will be unsuccessful in attacking the verdict in post-trial motions or appeal.

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