Goals of a sexual harassment deposition

In a sexual harassment deposition, the employment lawyers on both sides of the dispute must focus on two critical areas:

What is the specific nature of the alleged harassment?

First, counsel must discover, in detail, the conduct about which the plaintiff – the party who filed the lawsuit – is complaining. The plaintiff’s employment lawyer will want to discover evidence tending to prove that the sexual harassment was severe or pervasive (or, preferably, both). On the other hand, defense counsel – the lawyer representing the person and/or employer sued for sexual harassment – will want to discover evidence to prove either that the allegedly harassing conduct did not occur, or that it was neither severe nor pervasive. In this regard, the lawyers for both parties should obtain a detailed list of all of the allegedly harassing conduct and, with respect to each incident, discover the six “Ws”:

  • Who engaged in the harassing conduct?
  • Who witnessed the harassing conduct?
  • What was the harassing conduct?
  • When did the harassing conduct take place?
  • Where did the harassing conduct take place?
  • Why did the harassing conduct take place?

The lawyers for both parties also should examine the factors surrounding the allegedly harassing conduct including, among others:

  • The frequency of the harassing conduct;
  • The severity of the harassing conduct;
  • Whether the harassing conduct was physically threatening or humiliating, or a mere offensive utterance; and
  • Whether the harassing conduct unreasonably interfered with the plaintiff’s work performance.

The employment lawyer representing the plaintiff will want to discover evidence tending to prove that the sexually harassing behavior was unwelcome; that it was subjectively and objectively offensive; and that it seriously affected the plaintiff’s psychological well-being and/or otherwise altered the plaintiff’s employment. The employer’s counsel, on the other hand, will want to discover evidence to disprove these factors. This means, among other things, that defense counsel will want to discover evidence of the plaintiff’s conduct at work including, in appropriate cases, the plaintiff’s “sexually provocative speech or dress.” A smart plaintiff’s lawyer will try to limit questions on these topics to interactions between the plaintiff and the harasser, and not allow defense counsel to ask about the plaintiff’s conduct outside of the workplace or the plaintiff’s conduct in a consensual setting with someone other than the alleged harasser.

Depending on the facts of the case and where the case is filed, the employer’s defense counsel may also try to establish facts showing that the alleged harasser was inflicting the so-called harassment without regard to gender; that is, that the harasser was not discriminating on the basis of sex, but was generally harassing men and women alike.

Did the harassment end in a “tangible employment action”?

The second critical area on which both parties must focus is whether the plaintiff suffered from harassment that culminated in a “tangible employment action” (e.g., discharge from employment, demotion or an undesirable job reassignment). The employment lawyers for both parties will want to determine whether:

  1. the defendant-employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior (e.g., by establishing an effective anti-sexual harassment policy, conducting anti-sexual harassment training, and thoroughly investigating and remedying complaints of sexual harassment); and
  2. the plaintiff-employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.