There has been much debate about employer liability in sexual harassment defence cases, and much of it has been started by sexual harassment lawyers owing to gradual modifications of the law concerning the reporting and documenting of discrimination complaints. Sexual harassment lawyers asserted that cases of robbery, assault and other such offences have actually been thrown out of court because of discrepancies in the recording of events and even the nature of the initial complaints. However, this had not been applied to sexual harassment cases in the workplace. Sexual harassment defence had therefore been flawed.
However, in 2003, a court ruling in California overturned the age-old view that employers alone shouldered the responsibility for sexual harassment in the workplace. Sexual harassment defence now had a legitimate way of lowering damages and costs that related to the behaviour of the employee alleging that the sexual harassment took place. Although employee unions immediately denounced this decision, employers welcomed it and not only because it may actually cost them less. Employees had been known to continue working through sexual harassment purely and simply for a pay off, but this ruling actually gave the sexual harassment defence a right to discount any time periods of this nature.
In more simple terms, a sexual harassment defence can discount all damages claimed if the harassment was avoidable. For example, if an individual was sexually harassed in 2000 for the first time but it continued until 2002 then the employee would be guilty of not reporting it, which could have indeed prevented further hurt, and this period can then be disqualified from the damages claim. Sexual harassment lawyers therefore have to be careful regarding evidence and terminology in court.
There are, however, exceptions to this particular sexual harassment defense ruling. An employer is not liable if it is a third party visiting the workplace or if it is a colleague on the same level as or below the claimant. As the company in question has not entrusted the accused with responsibility for the claimant, it is not a breach of the trust placed in him or her and thus the company can refuse liability. If, however, the accused has been entrusted with direct responsibility for the victim, then the company is liable because it has left said victim vulnerable to the advances of a superior. Sexual harassment lawyers usually examine cases on the merit of this loophole.
Another exception that sexual harassment defence teams cannot exploit is if a formal complaint was originally lodged but not dealt with effectively, thus leaving a victim open to the sexual harassment through no fault of his or her own. This is why sexual harassment lawyers will thoroughly examine a case before setting their terms.
These laws have certainly helped the sexual harassment defence in that it will indeed prevent potential claimants making their case for more financial gain than completely necessary. It also helps in the fact that their responsibility is well defined. However, it will not actually prevent false claims being made because one claim is all those individuals need to make the mud stick. Although sexual harassment defense teams and sexual harassment lawyers no doubt want the legislation to go further, the truth is that it cannot without making life worse for real victims.
Comments