Sexual Harassment

Sexual Harassment

Les secured a favorable outcome not long ago for a young lady who had shown up at a job interview where, unbeknownst to her, the prospective employer had other on his mind than offering her a job.  After about a half hour of chitchat during which time he painted a rosy picture of her employment prospects with him, he lunged and grabbed at her and scared her half to death; and the woman, traumatized and in physical pain because of the assault and battery on her person, ran away as fast she could.  Because of privacy concerns, the case will not be identified here; and because of the confidentiality agreement she had to sign, the young lady and her legal counsel are prohibited from disclosing the settlement amount. But because of a fortuitous change in the law, harassers can no longer require their accusers to sign confidentiality agreements shielding the identities of the perpetrators as a condition of settlement; nor are confidentiality agreements enforceable to the extent that the victims are prohibited from disclosing the circumstances of the assaults upon the their bodies and their dignity.

Even before the “me too” movement, the law took sexual harassment seriously and continues to do so.  Sexual harassment in California is a civil rights violation; and when these cases are taken to trial and won, the assailant is charged not only with compensating his victim but also with paying the victim’s attorney’s fees and costs.  Also, while gathering evidence as to the assault by recording phone or in person conversations is prohibited in this state unless all parties to the conversation consent to the recording, an exception is made in the case of a “pretext call,” which is allowed in California under Penal Code Section 633.  A “pretext call” is  a tape recorded call between two people, usually between the victim of a crime and the suspect of that crime, done under the supervision of law enforcement.  The call can be made days, weeks, or months after a suspected crime occurs; but the pretext call usually occurs before the suspect is aware he or she is being investigated.  Anything said by the suspect on tape, whether there was an acknowledgment of the incident by a “heartfelt” apology or otherwise, can be used against the suspect in a criminal case or in a lawsuit, including trial.  Law enforcement officers also gain leverage over a suspect as they can now confront that suspect with the recorded statements during an interview, which may lead to a confession.

There are two primary ways to legally prove that one has been the victim of sexual harassment:  “quid pro quo” and “hostile work environment.”  Quid pro quo occurs when a superior demands favors of a sexual nature in return for various benefits, such as job security, money and gifts, promotions, etc.  A single instance of quid pro quo sexual harassment is enough to state a claim against the perpetrator.  To show there is a hostile work environment, a victim of sexual harassment needs to prove that the verbal and/or physical harassment has been pervasive and severe.     

There are few cases that can give an attorney as much satisfaction as forcing a lying bully to pay out real money to his victim.  For many of us in the legal profession, the greatest pleasure is seeing justice done.