An experienced employment lawyer will take the time to prepare you for your sexual harassment deposition
In order to properly prepare you for your sexual harassment deposition, your employment lawyer will meet with you, on at least one occasion, to make sure you have a clear understanding of the legal theories in the case and the elements you must prove to establish those legal theories. Generally, the most straightforward way for your lawyer to explain the legal theories is to read to you the applicable jury instructions and then carefully explain each element. Once you understand the general legal theories and elements, then your employment lawyer will help you understand how the facts of your case “link” to the legal elements of your sexual harassment case.
Limited scope of sexual harassment laws
Although the mass media has generally informed the public that “harassment” is illegal, you may be surprised to learn that anti-harassment laws are extremely circumscribed. For example, contrary to popular belief, there are no laws that provide a blanket ban on “harassment.” Instead, the federal law (“Title VII”) only prohibits covered employers from engaging in certain forms of harassment against individuals (i.e., harassment based on race, color, religion, sex and national origin). Moreover, as the following jury instruction on sexual harassment demonstrates, even if the harassment is based upon a protected classification, the wronged employee still must jump over many additional hurdles (e.g., the conduct was not only unwelcome, but also was sufficiently severe or pervasive).
Sample sexual harassment jury instruction
The plaintiff seeks damages against the defendant for a sexually hostile work environment while employed by the defendant. In order to establish a sexually hostile work environment, the plaintiff must prove each of the following elements by a preponderance of the evidence:
- The plaintiff was subjected to sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature;
- The conduct was unwelcome;
- The conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff’s employment and create a sexually abusive or hostile work environment;
- The plaintiff perceived the working environment to be abusive or hostile; and
- A reasonable [woman] [man] in the plaintiff’s circumstances would consider the working environment to be abusive or hostile.
Whether the environment constituted a sexually hostile work environment is determined by looking at the totality of the circumstances, including the frequency of the discriminatory conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether it unreasonably interfered with an employee’s work performance. [Manual of Model Civil Jury Instructions, Ninth Circuit §13.1 (2001).]
Let’s look at each of these elements.
Protected classification – conduct based on sex
Your employment lawyer will explain to you that the first, and most important, prong of the sexual harassment jury instruction requires you to prove that you were “subjected to sexual advances, requests for sexual conduct, or other verbal or physical conduct of a sexual nature.” That is, in order to satisfy this prong, the conduct about which you are complaining must be either sexual in nature (e.g., graphic sexual language or e-mails) or based on your sex (e.g., supervisor yelled at women but not men). For example, the following types of conduct constitute sexual harassment.
- Unwanted sexual advances.
- Offering employment benefits in exchange for sexual favors.
- Making or threatening reprisals after a negative response to sexual advances.
- Visual conduct of a sexual nature (e. g., leering, making sexual gestures, displaying of sexually suggestive objects or pictures, cartoons, posters, e-mails, screen-savers).
- Verbal conduct of a sexual nature (e. g., making or using derogatory comments, epithets, slurs and jokes).
- Verbal sexual advances or propositions.
- Verbal abuse of a sexual nature, graphic verbal commentaries about an individual’s body, sexually degrading words used to describe an individual, suggestive or obscene letters, notes or invitations.
- Physical conduct of a sexual nature (e.g., kissing, licking, rubbing, touching, assault, impeding or blocking movements).
This is only a sample of the types of conduct that consitute harassment based on sex. In preparing you for your deposition, your employment lawyer will make sure you understand how the conduct alleged in your case meets the “protected classification” requirement.
The second element that must be satisfied in your sexual harassment case is that you found the conduct unwelcome. That is, you did not want the conduct to take place. In order to demonstrate that the conduct was not welcome, your employment lawyer will work with you to develop detailed evidence of your complaints or protests about the conduct, whether to the alleged harasser, higher management, co-workers or others. If you did not complain, you must be able to explain why. Were you afraid of the potential repercussions that might stem from complaining about the harassment? Similarly, if you participated in the sexual conduct, you will have to explain why. Often, for example, an employee feels compelled to engage, to a limited extent, in the same conduct as their co-workers and supervisors so that they can get along. Talking with your employment lawyer will help you get comfortable with this aspect of your case.
Severe or pervasive conduct
The third element that must be satisfied is proof that the conduct was sufficiently severe or pervasive. This element means that the conduct must be significantly more than a mild, isolated instance of harassment. Simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not rise to the level of actionable sexual harassment. In anticipation of your deposition, your lawyer will work with you to ensure that you are able to articulate the severity and pervasiveness of the conduct.