What Does my Workplace Harassment Lawyer Need to Know?

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 What Questions Should I Expect at a Meeting with a Workplace Harassment Lawyer?

It is important for a person to prepare for their first appointment with a workplace harassment lawyer. Harassment cases require a detailed legal and factual analysis. In order to assess a person’s claim and provide accurate legal advice, the lawyer must have complete information. The person who thinks they have a claim can help streamline the interview process by gathering up evidence in advance.

While every lawyer has their own interview process, below is a list of common questions. Additionally, different states, and even counties and cities, have different employment laws. So, depending on where a person lives and the issues involved in their case, a lawyer’s questions may vary.

The applicable federal law regarding workplace harassment applies only to businesses that have fifteen or more workers. If a company has fewer than fifteen workers, technically they do not have to comply with this aspect of federal employment law.

However, almost all states have workplace harassment and sexual harassment laws that are similar to federal law. Usually state laws apply to smaller employers, i.e. those who employ fewer than 15 workers.

There is a difference from state to state in the remedies that the laws allow to people who claim harassment. Some states allow an employee to collect workers’ compensation as damages in workplace and sexual harassment cases. Others allow the victim to claim money damages as in a personal injury case. And some states allow victims to recover punitive damages. Many county and city governments have also enacted laws prohibiting harassment, some of which may be more generous than state laws.

Why Were You Harassed?

Federal law treats workplace harassment as a form of discrimination and the law is enforced by the federal Equal Employment Opportunity Commission (EEOC). There are many forms of employment discrimination.

Federal law prohibits discrimination based on:

  • Race and ethnicity;
  • Gender, including sexual orientation;
  • Religion;
  • National origin; or
  • Disability or genetic predisposition.

It also is illegal to harass someone who is a whistleblower or cooperating with an investigation or other legal proceeding. In addition, many states and some county and city governments have their own anti-discrimination and civil rights laws. Once the lawyer understands a person’s particular claim, they can tailor a legal strategy to meet the person’s needs.

Keep in mind that, as noted above, federal workplace harassment law applies only to certain companies, specifically those with more than 15 employees. But state, county or city laws may also apply even if federal law does not.

Who Harassed You at Work?

An issue that needs to be addressed is whether a person’s employer can be made liable for the harassment. Different rules apply depending on the role in the employer company of the person who has engaged in the harassment.

An employer is unarguably liable for harassment by a supervisor that results in a negative employment action such as termination of employment, a failure to promote or hire, and wage loss. If a supervisor’s harassment creates a hostile work environment, the employer can avoid liability in only one way, and that is by proving the following:

  • The employer took reasonable steps to try to prevent and promptly correct the harassing behavior; and
  • The employee unreasonably failed to take advantage of opportunities to prevent or correct the harassment provided by the employer.

However, if the harasser was a co-worker, customer, or contractor, a different level of proof is needed in order to pin liability on the employer. In cases involving a co-worker, a person must show that their employer:

  • Knew or should have known about the harassment;
  • Did not take appropriate measures to stop the harassment.

It is always a good idea, when a person thinks they are being harassed at work, for the person to keep all emails, letters and the notes they should make of conversations they had involving harassment or dealing with the harassment. Then the person can provide their lawyer with all these emails, letters, or other evidence concerning the harassment and their employer’s response. The person would want to bring this material with them to their appointment with their lawyer.

Can You Describe the Harassing Behaviors?

It is important that a person’s lawyer understand how severe their workplace harassment was. There are two main kinds of workplace harassment:

Typically, a single offensive comment or harassing behavior will not be enough to show a hostile work environment unless the single act was very dramatic. Instead, a person must show that a reasonable person would have found the behaviors to be pervasive, hostile, and intimidating. If a reasonable person would not have been upset by the alleged harassment, a person cannot succeed with their claim.

Importantly, if a person has any evidence of harassment or hostile behavior, they should bring it with them to their appointment with their lawyer. This information will help the lawyer understand the scope and severity of the harassment.

When Did the Harassment Occur?

Most harassment cases have strict filing deadlines. Depending on a person’s claim, they may have to file charges with an administrative agency, such as the EEOC before they can file a lawsuit. If a person does not follow the correct procedure, their lawsuit may be dismissed for failure to file a claim with the EEOC.

A person needs to file a claim with the EEOC within 180 days, with certain exceptions. So it is always a good move to consult with an experienced employment lawyer promptly after harassment has taken place.

Did You Report the Harassment to Your Employer?

It can be difficult to win a harassment claim if the person did not report the offensive behavior to their employer, especially if the harasser was a co-worker or customer. In order to win a case involving co-worker harassment, a person must show that their employer knew (or should have known) about the offensive behavior. If the person has correspondence documenting their complaints, they should bring it with them to the appointment.

Do You Have a Right to Sue Letter?

In order to file a federal employment discrimination lawsuit, a person typically must have a “Right to Sue” letter from the EEOC. Federal law sets out a very specific administrative complaint process for discrimination claims.

First, a person must file a complaint (or charge) with the EEOC. The EEOC investigates the person’s claim and may agree to file a lawsuit on their behalf. Unless a person’s federal claim involves a violation of the Equal Pay Act, they cannot immediately file a lawsuit against their employer.

However, the EEOC does not prosecute most discrimination claims—including many legitimate ones. In most cases, it will send a person a Right to Sue letter. This letter allows the person to file a federal case against their employer. The lawyer will want to know where the person is in the claims process. His or her strategy and advice will differ, depending on where the person are in the EEOC charge and litigation process.

What Damage Did You Suffer Because of the Workplace Harassment?

A person’s employment lawyer will need to understand how the person was financially impacted. In a workplace harassment claim, a person may be entitled to both compensatory and punitive damages. Compensatory damages cover lost wages, the cost of searching for a new job, and other out-of-pocket expenses.

Punitive damages are imposed in order to punish an employer for willful harassment or harassment that was especially offensive or harmful. It helps a person’s lawyer calculate their damages, if they can bring check stubs and other evidence of the costs associated with the harassment.

What Should I Bring to a Meeting with a Workplace Harassment Lawyer?

It is important for a person to bring any evidence they have to their first appointment. This may include:

  • Employee handbook;
  • The person’s personnel records;
  • Information about the size of the company the person worked for and what its structure is;
  • Correspondence between the person and their employer or the offending co-worker or supervisor;
  • Check stubs or W-2 forms;
  • Receipts and other evidence of expenses a person incurred because of the harassment.

This information will help the lawyer evaluate and understand a person’s workplace harassment claim.

Where Can You Find the Right Lawyer?

Hiring a lawyer is an important decision. The law regarding workplace harassment is complicated and can involve federal law and federal agencies as well as state law and even local ordinances.

A workplace harassment lawyer is equipped to help you understand your rights, file a timely EEOC claim (if necessary), and file a lawsuit against your employer if this should become necessary.

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