Sexual harassment is still a significant issue. Since the #MeToo movement, victims of sexual harassment have a voice and can seek justice. However, not every accusation arises from apparent misconduct. Misunderstandings or false claims can occur, placing the accused at risk of serious legal, financial, and professional consequences. Lawyers can be accused just like anybody else, and your career could be at risk with one accusation.
A strong defense is necessary. A sexual harassment claim can result in disciplinary action, civil liability, and sometimes even criminal charges. Without skilled legal representation, you risk damage to your reputation and livelihood. An experienced attorney will examine the allegations, gather evidence, and develop a strategy that protects your rights.
At Empower Sexual Harassment Attorneys, we provide the legal support you need. Our San Diego team understands the high stakes and will work hard to defend you against sexual harassment allegations.
Understanding Sexual Harassment Allegations Against Lawyers
Sexual harassment in the workplace is a serious and pervasive issue that impacts professionals across all industries, including the legal profession. If you are a lawyer who has been accused of sexual harassment by someone in your office, client, or opposing counsel, you can face serious consequences. These accusations can damage your reputation, career, and legal standing.
Sexual harassment involves more than just actions like unwanted sexual touching or sexual assault, though these actions are certainly included in sexual harassment. Verbal comments, gestures, or conduct creating an intimidating, hostile, or uncomfortable environment can also be deemed as sexual harassment. Any action that crosses another’s personal space and makes the workspace unsafe or degrading could result in harassment allegations.
Sexual harassment allegations against lawyers have become increasingly common and pose a notable concern within the legal community. Clients, colleagues, and organizations could make sexual harassment allegations against lawyers. This means that harassment can take different forms and occur in various situations, from a law firm to a courtroom.
Sexual harassment in the legal field is significant because of the power dynamics between you and your clients and between you and your subordinates, which can make allegations of misconduct especially damaging.
Sexual harassment generally falls into two categories, namely:
- Quid pro quo
- Hostile work environment
In quid pro quo harassment, as someone in a position of authority, you ask for sexual favors in lieu of providing professional benefits like a promotion or continued employment. For example, if you tell a junior associate, “Sleep with me, or you are out,” this behavior will cross professional boundaries. It could be easy to prove that you harassed the victim, especially if coupled with other supporting evidence like text messages, email exchanges, or witness testimonies. This type of harassment is overt and exploitative.
On the other hand, hostile work environment harassment is more subtle yet equally serious. It happens when unwanted sexual remarks, gestures, or actions create an unsafe or uncomfortable situation for a person. As a lawyer, if your office culture includes facetiously making lewd jokes or suggestive comments, engaging in inappropriate behavior, or behaving inappropriately, your actions contribute to a hostile environment, whether or not it is directed to any individual. For example, when a junior staff member hears people make inappropriate remarks about her at a law firm event, it sets up a hostile environment where she cannot perform her job effectively.
Sexual harassment can occur in many forms. However, they are commonly classified under verbal and non-verbal. Both can occur in quid pro quo arrangements and hostile work environment situations.
Verbal Sexual Harassment
Many lawyers have been accused of making unwanted sexual advances or behaving inappropriately with their subordinates, including junior associates and paralegals. In most cases, harassment of this nature includes actions such as:
- Making sexually suggestive remarks about another person’s appearance
- Pestering a person for dates after they say no
- Cracking perverse jokes
- Making lewd proposals
Non-verbal and Physical Harassment
You can engage in non-verbal harassment by:
- Sending inappropriate photos of yourself
- Looking at the other party in a suggestive way
- Displaying pornographic material in a shared space
It is considered physical harassment when you touch or assault a client or a junior staff member. Depending on context, even a casual hug between colleagues could be acceptable to some. However, for others, it could be an uninvited touch and thus, may be deemed sexual harassment. It is problematic when the other party does not consent to being touched.
The context and the nature of the behavior determine what qualifies as harassment.
Sexual harassment must show a certain level of undesired behavior for it to be deemed legally actionable. It must be unwelcome. That is, the person on the receiving end did not invite it and did not want it. When two consenting adults have a friendly exchange of flirtatious comments, it is not harassment. If either party feels uncomfortable and does not welcome the conduct, then it can be harassment. The behavior must also be severe or pervasive. If the other person does not welcome the comment, then the comment can be seen as harassment. However, one comment is insufficient to label the conduct as sexual harassment. It has to be repetitive or severe for it to be called harassment.
Somebody can make a false accusation of sexual harassment. However, the accusations are not easy to disprove. If you are accused of sexual harassment, it helps if you respond appropriately. False claims may occur due to conflicts or misunderstandings, but you need evidence to prove the allegations are untrue. False accusations can damage your reputation, but sometimes, the appearance of misconduct on your part can hurt your career and profession. A harassment accusation will ruin your credibility and trust and result in losing clients, co-workers, and professional license. So that is why you should not respond to the allegations directly but hire an attorney to guide you on how to respond even if the allegations are untrue.
What are The Legal and Ethical Guidelines On Sexual Harassment?
In California, state and federal laws comprehensively protect sexual harassment victims. The Fair Employment and Housing Act (FEHA) is the primary legal framework that governs what is acceptable and unacceptable in the workplace. This law defines sexual harassment as any unwelcome requests for sexual behavior or any sexual conduct of a verbal or physical nature that makes the workplace hostile. FEHA provisions extend protections further than other anti-discrimination laws. They apply to:
- Employees
- Job applicants
- Unpaid interns
- Volunteers
- Independent contractors
California sexual harassment laws apply to employers with at least one employee, unlike federal law, which applies to employers with 15 or more employees.
Employer liability under FEHA is stringent. Employers are strictly liable for harassment by their supervisors. The employer is liable for the inappropriate behavior of his/her supervisory employees even if he/she was not negligent in permitting the harassment. Employers will be liable for harassment when a non-supervisory employee commits it if the employer was aware or should have been aware of the sexual harassment and did nothing to correct it. FEHA requires employers to have a written sexual harassment policy and a process for the employees to report. Workers must be briefed on how to report harassment, at a minimum, with this policy being distributed to the employees.
California’s sexual harassment laws have a filing procedure and deadlines as key features. If someone is harassed by a boss, manager, or co-worker, they can file a claim within 3 years from the last incident. Once they receive a right-to-sue letter from the California Civil Rights Department (CRD), the victims have one year to file a civil suit in state court. These deadlines give victims a larger time frame for making their claims than federal laws.
California also mandates employer training as a part of its legal framework against sexual harassment in addition to filings. Employers with five or more employees must provide sexual harassment prevention training every 2 years. Supervisors must undergo training for at least two hours, while non-supervisory employees must undergo training for at least one hour. This training explains:
- The state and federal laws against harassment
- The process of recognizing and preventing harassment
- How to report it
These mandatory training requirements will help to create a culture of awareness and prevention.
Victims of sexual harassment can seek compensatory damages to compensate them for the losses occasioned by the sexual harrassment, which includes lost wages, emotional distress, and others. Employees could also seek punitive damages, which are awarded if as an employer, you acted with malice, fraud, or were oppressive. You could also be sued if you are the offender, and both you and your employer become defendants in the sexual harassment civil lawsuit.
FEHA has no cap on punitive damages as opposed to federal law, which caps them based on your financial muscle as an employer. Thus, harsher punishments are possible under FEHA. If the plaintiffs win the case, they might also receive compensation for attorney’s fees, costs, and expert witness fees. Sexual harassment victims have a much better chance of getting financial compensation because of this. Conversely, you could suffer significant economic consequences if the jury finds you liable.
Federal law Title VII of the Civil Rights Act of 1964 defines sexual harassment as sex discrimination. However, since the federal law applies only to employers with at least 15 employees, smaller employers are not covered. Title VII has been interpreted to include a definition of sexual harassment similar to FEHA and address both quid pro quo harassment and hostile work environment harassment. However, one key difference is the filing deadlines. If the harassment occurred at a place of employment subject to Title VII, the victim must file the accusation with the Equal Employment Opportunity Commission (EEOC) within 180 days of the alleged harassment. This period is extended to 300 days if the harassment occurred at a location of employment covered by a state or local agency like California’s Civil Rights Department (CRD). After filing with the EEOC, victims have only 90 days to file a lawsuit in federal court, much shorter than the one year under FEHA.
State and federal law also differ significantly in capping damages under Title VII. The victim can claim:
- $50,000 if, as an employer, you have 15 to 100 employees in your law firm
- $300,000 if you have employed 500 or more employees
Under FEHA, California does not cap punitive damages so that victims can receive a higher compensation for damages.
Attorney ethics also play a pivotal role in combating sexual harassment in the legal profession. The California State Bar Rule 8.4.1 prohibits attorneys from harassing or discriminating against a person based on sex, gender, gender identity, sexual orientation, and other protected characteristics. This regulation applies to lawyers in their professional dealings with clients and fellow professionals, office staff, and other people working in the legal environment. The State Bar is obligated to investigate complaints regarding sexual harassment against lawyers. The bar can take disciplinary action, like suspending or removing the attorney’s license whenever warranted. Lawyers must also report any other criminal, civil, or administrative charges they face if they are brought to the State Bar and other relevant agencies.
Defenses You Can Use in a Sexual Harassment Case
As a lawyer, you know the worth of a strong defense when facing sexual harassment allegations. You have built your career on creating them for other people. Now that the roles are reversed, you should hire an attorney. Defending yourself in a situation that is emotionally charged and one that threatens your career is a losing battle. You need a lawyer who will be objective, experienced, and far removed from the personal turmoil.
Fortunately, your attorney can use one among several defense strategies that can help challenge the charges. The following are some of the strategies he/she will use:
The Alleged Actions Do Not Meet the Legal Definition of Sexual Harassment
One of a sexual harassment defense strategy’s main aspects is arguing that the alleged conduct does not legally count as sexual harassment. The sexual harassment must be unwelcome, severe or pervasive, and substantially disruptive to your accuser’s work. If the accusation is based on a single awkward comment, like a misinterpreted compliment about your accuser’s clothes or an isolated gesture, your sexual harassment defense attorney could argue that it is not pervasive enough to create a hostile work environment and not serious enough to stand alone as actionable. They would anchor the argument on the reasonable person standard: “Would an average person in a similar situation find your actions offensive or intimidating?”.
If the incident falls into a gray area, say a casual comment was taken out of context, your lawyer could argue that it does not meet the legal threshold. This defense tries to have the case dismissed even before it starts by questioning the basis for the case, which will spare you from trial.
The Alleged Victim Consented or There Was Mutual Participation
Another viable defense is consent or mutual participation. If your accuser was flirting or being sexual, perhaps they sent you suggestive emails, playfully joked with you in person, or otherwise flirted or responded positively to advances, your attorney could use the email exchanges, call logs, and witnesses as evidence showing that they were willful participants and it was mutual.
Context is crucial. If you are a senior partner and the accuser is a junior, your accuser will likely allege coercion afterward, even if the junior initially participated, citing your senior status as the pressure. This complicates the matter, but the mutual conduct can still raise doubts regarding the sexual harassment allegation. For instance, if you both exchanged dirty jokes at the firm’s happy hour, your lawyer can argue it was a consensual exchange, so you are not guilty of harassment.
The feature of documented reciprocity here can undermine the accuser’s attempt to portray themselves as victims. The strength of documented reciprocity can undermine the allegations.
Your Accuser’s Credibility is Questionable
Your lawyer could also challenge the accuser’s credibility, focusing on their reliability rather than your actions. If your accuser has been dishonest before, for example, by making false claims in the past or inflating reports, or has a clear motive like an undesirable performance review, denied promotion, or character falling out, they will focus on it. Maybe your accuser texted a friend about “getting back” at you, or their timeline of events does not match security footage, email exchanges, or texts.
Critiquing the person is not crucial, but identifying the flaws in their statement is.
Depositions and cross-examinations can help your attorney point out inconsistencies. For example, the accuser says they were in your office, but you were in court. By casting doubt on their honesty, this defense can take the emotional influence out of the case and focus on their unreliability, undermining their allegations.
Lack of Evidence
The lack of evidence is a key defense in a sexual harassment case that often just comes down to he-said-she-said disputes. If your accuser does not have tangible evidence, that is, no texts, no audio, and no eyewitnesses, your lawyer can argue the claim lacks substance.
Your attorney could use this defense to challenge criminal charges and civil disputes. As you already know, the burden of proof emphasized in a civil lawsuit is lower than that of criminal charges. A civil lawsuit relies on a preponderance of evidence, while the criminal charges have the beyond a reasonable doubt burden.
If it is your word against theirs, having a clean record or having an alibi for when the alleged incident(s) occurred helps your case.
For example, if the allegation is about you emailing someone late at night, but the records show you were offline during that time, this would weaken their case. This will force your accuser to over-rely on narrative rather than facts because of the lack of tangible evidence.
Your Case Has Procedural Deficiencies
A procedural defense could take advantage of the mishandling of the reckless accusation process. This defense explores pertinent questions, specifically:
- Did your accuser follow the company’s reporting policy in the workplace, or did they bypass it for dramatic effect?
- Were the investigation and hearing by the human resource (HR) team or the bar association done properly
- Was there a rush to judgment with no chance for you to answer to the charges?
In exploring your case and seeking answers to these questions, your sexual harassment defense attorney could find a flaw. Some of the flaws include the following:
- The firm could have sanctioned you without a hearing
- Your accuser could have filed their EEOC complaint after the 180-day deadline
In bar-related ethics probes, attorneys check if proper procedures were ignored, like not informing you of specifics before a ruling in your matter.
These mistakes can undermine the allegations or even totally negate them, making bureaucratic sloppiness your shield. Timing also matters. Ignoring an expired claim past the statute of limitations could dismiss the sexual harassment allegation and spare you the hassle of a drawn-out legal process.
The Incident Was Because of a Misunderstanding or Lack of Intent
Your lawyer can argue that you had no malicious intent or the issue was all a misunderstanding. Perhaps a joking remark like “You look sharp today” was misconstrued as suggestive, or similar to how a pat on the back is friendly in some cultures but viewed as inappropriate by others, a cultural misstep could have occurred.
Even though the courts focus on the impact rather than the intent, proving you did not mean to harass helps lessen the damage, especially in disciplinary hearings where intent has significant weight. If you get your co-workers to testify to your professionalism, it helps build your case. If there is no pattern of misconduct, just a one-off incident blown out of proportion, they would argue it is an anomaly, not harassment. Evidence like an email following up to say I’m sorry if I made you uncomfortable will also help. This shows good faith and disputes any suggestion of malicious intent.
Find a Sexual Harassment Attorney Near Me
Sexual harassment is a serious issue, but the accusation can be equally damaging. As a lawyer, once you are accused, your career, reputation, and personal life are at stake. You risk facing a civil suit and disciplinary action. You thus need a sexual harassment attorney to help in your defense. Fighting sexual harassment charges is more than understanding the law. It requires a strategy to contest and fight the claim. Without strong representation, you risk losing your livelihood and long-term personal and professional harm.
When accused of sexual harassment in San Diego, turn to Empower Sexual Harassment Attorneys. We will help defend and protect your rights. Contact us today at 619-604-3027 to schedule a consultation and ensure you have the expertise to navigate this complex legal matter.
