#Youtoo? How to Prepare Your Case for Sexual Harassment
In the fall of 2017, the present movement against widespread sexual assault and harassment (particularly, assault and harassment occurring in the workplace) gained unprecedented attention in the United States.
Utilizing the two-word hashtag, #metoo, women involved in industries ranging from Hollywood to the government, began sharing their stories of sexual assault and harassment in the workplace. While most of these stories have been from women, even a few men have publicly related incidents of sexual assault and harassment. Even though this movement recently went viral via the #metoo hashtag, over a decade ago a young woman by the name of Tarana Burke created the phrase “Me Too” on the social network MySpace to promote “empowerment through empathy” among women of color who have experienced sexual abuse. 1
All victims of sexual assault and harassment should be applauded for no longer being afraid to express their feelings and experiences. Because of these individuals coming forward, those accused of sexual assault and harassment have been scorned by their respective industries, either resigning or losing their job soon after allegations of sexual assault and harassment surfaced. However, victims seeking monetary compensation may have to prepare for potentially lengthy court battles to obtain justice.
Sexual Assault and Harassment laws vary by state; however many victims may choose to file federal lawsuits depending on the facts of their case. The Federal Sexual Harassment statute is
29 CFR 1604.11. 2
Additionally, Sexual Harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. For a victim to be successful in a sexual harassment case they must prove: 1) unwelcome sexual advances, sexual requests or other verbal or physical conduct of a sexual nature; 2) such conduct was an explicit or implicit term of the victim’s employment; 3) such conduct had the purpose or effect of unreasonably interfering with the victim’s work performance or created an intimidating, hostile, or offensive work environment. Additionally, the totality of the circumstances will be evaluated, and Employers can be held liable for sexual harassment they knew or should have known about.
Considering the elements above, victims of sexual harassment must be prepared to prove every element of their case. Have issues proving any of the three elements above? Say goodbye to your potential monetary compensation. Another factor to consider is who is on your side. Absent DNA evidence of rape, a claim for sexual harassment or assault may depend heavily on witness testimony. Can you trust your co-workers or friends with knowledge of your case to testify to what they know or will they support the accused? Prior to considering filing a lawsuit, knowing whom you can trust is paramount as witness testimony may make or break your case.
Your timeline and facts need to be logical. When a jury is evaluating “The Totality of the Circumstances,” they are analyzing all the facts and their context. For example, if your claim is based on harassment over a certain time period, you need specific dates of allegations. The last thing you want is for your timeline and or facts to appear confusing or unbelievable.
Finally, be prepared for a marathon, not a sprint. Most cases which have a strong potential for success are settled prior to the parties going to trial.
However, your case may not settle until you file suit, take depositions, or discover key evidence years into your case. If you are going against a large corporation, wealthy individual, or someone with extensive social connections, be advised that they likely are doing everything in their power to avoid having to pay you anything, and they likely have expressed their concerns to an attorney. The sooner you speak with an attorney regarding your case, the better prepared you will be for the race ahead.
1 Guerra, Cristela (October 17, 2017). Where’d the “Me Too” initiative really come from? Activist Tarana Burke, long before hashtags – The Boston Globe". Boston Globe. Archived from the original on October 17, 2017.
2 Government Publishing Office, Title 29-Labor, Section 16.04.11