|Davidson spoke at a Virginia Employment and Labor Law Association luncheon.|
Sexual Harassment Cases Difficult But Rewarding, Davidson Says
Representing victims of workplace sexual harassment in civil lawsuits can be tough—they're difficult to prosecute, juries are unreliable, and liability is hard to prove, according to adjunct law professor John Davidson '96, but the emotional rewards outweigh the difficulties, he told a gathering of the Virginia Employment and Labor Law Association Dec. 2.
Davidson, a principal at Davidson & Kitzmann in Charlottesville and a co-teacher of Employment Law: Principles & Practice, once worked for defendants, but switched sides to work with employees. Although his practice includes employment law, personal injury law, civil rights law, and general civil litigation, a third of his cases include sexual harassment victims, about 90 percent of which are young women. He also represents sexual assault victims in liability suits—usually teens who are assaulted in high schools. Many of the cases are criminal cases that get parked under the sexual harassment category.
“It is a dark topic,” he said, but “it's the most human-oriented practice I know.”
Meeting the client for the first time can be emotionally wrenching, since he's almost always a stranger to her, so he tries to be low-key. Potential clients shouldn't be interviewed with a friend or spouse in the room because it may jeopardize attorney-client privilege. “If I can get that person to open up [in these conditions] . . . it really is a pretty rewarding experience,” he said.
About half of his sexual harassment clients have faced physical and verbal abuse, and half have faced verbal abuse at work, he said. He described a typical case in which an owner of a company asked an employee to sleep with him; when she refused, she was fired. Most of the time when trying cases under Title VII—the federal law making sexual harassment illegal—unless a company fired her for failing to acquiesce to the harasser's demands, the only way to hold employers responsible is if she complained about it and the company took no action
“It's challenging to try and get that money from somebody, whether it's the employer, insurance company, or something like that,” he said. “It's pretty tough to hold companies liable for sexual harassment.”
And Title VII doesn't allow you to sue the individual harasser. If someone at work touches you against your will, it could be considered battery, but it's also difficult to sue employers for workplace injuries.
He described one slam-dunk case in which a waitress was sexually battered by two co-workers over a couple of months. The men grabbed her breasts and buttocks, and made sexually threatening comments to her. When she complained to the manager and owner, they dismissed her complaints and even made derogatory comments about her appearance.
“These guys are going down,” Davidson said.
He's also had cases that juries may be less receptive to, because of their seeming lack of severity. One employee was smacked on the rear by her manager every morning as she entered work. She had been a sexual assault victim as a teen, and the harassment brought back painful memories. But she never reported the assault and a jury may not believe her. “The reality is . . . [American juries] don't give away money.”
He cited one personal-injury case where one jury awarded the plaintiff $150,000, but when the case was thrown out on a technicality and retried, the new jury only awarded $2,000.
“In these cases so many times I'm telling my clients I'm not sure I can hold the employers liable,” he said. That can be especially difficult when the employer is the state, which tends to have sovereign immunity.
“It is a tremendous challenge to advise your client correctly,” he said. “You've really got to work hard; these are not easy cases.”
Another way to hold employers liable is to prove that the employer was negligent and should have known an employee had criminal tendencies. Davidson said he's seen numerous cases where women are raped by apartment handymen in their own apartments, and some have criminal records or pasts that employers should have paid attention to. But victims' lawyers don't know the personnel record of the harasser, so that strategy can be a shot in the dark. If you try to subpoena the personnel record, you must have evidence to support your suspicions.
He noted that lawyers are ethically prohibited from threatening a criminal prosecution in a civil matter, but under Virginia's worker's comp law, lawyers must notify police of the alleged crime if a client wants to sue for sexual battery.
In civil cases, rape-shield laws apply in Virginia, but there are exceptions in Title VII that will allow evidence about the client's behavior into court, such as testimony relevant to whether the harasser's comments or actions were welcomed by the client. Davidson said there are cases where the harassment claim is used by a jilted lover after a bad affair.
The Title VII statute also has gaps in coverage: for example, it doesn't apply to companies that have fewer than 15 employees. Other states have eliminated the gap with their own laws, but Virginia hasn't.
Davidson is fighting one such case by arguing that a harasser's advances on his client is against Virginia's law banning prostitution because the harasser was essentially asking the client to be a prostitute.
Davidson said the most difficult aspect of his job is case selection. Although there are many cases of harassment, you have to be able to pay rent and your secretary, he noted, and to prosecute the cases properly, you'll spend a couple of hundred hours working on it. As a result, it's important to ask plenty of questions when you first meet a client, as difficult as that may be, to make sure there's enough evidence to support a suit.
Even with its pitfalls, “it's a tremendously rewarding practice,” Davidson
said. “I urge you all to do it.”
• Reported by M. Wood