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.

• We represented an office worker who endured awful, sexually-laced comments from her supervisor. Because it was her supervisor, the employer was liable and the employee didn’t need to report it to management.  Her supervisor bragged to her about his sexual endurance; made vulgar comments about her body; told her to give him lap dances; told her that she should leave her fiancée for him; and tried to get her to watch pornography on his phone.  We litigated this case all the way through summary judgment.  After we beat the employer’s motion to dismiss our case, they settled for $160,000.

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.