Some workers who endure workplace sexual harassment may be able to access extensive and wide-ranging proof that backs up their claims that they encountered illegal discrimination and that the discrimination they encountered caused them to suffer significant and tangible harm. A lot of time, though, a harassment victim doesn’t have all that. The key, if you’re someone who survived a workplace sexual harassment situation, is not to believe that the absence of a mountain of evidence automatically destroys your case, as this is not true. Depending on the facts that you can prove, you could still obtain compensation. To find out more and to get reliable answers to your sexual harassment questions, get in touch with an experienced New York sexual harassment lawyer to get the information and advice you need.
S.M. was a dancer who alleged sexual harassment. According to the lawsuit, G.O., the manager of the Queens club where S.M. danced, “requested sexual favors” from the club’s dancers, including S.M. In exchange, the manager allegedly promised to place receptive dancers on the club’s schedule for Friday and Saturday nights. (These shifts were the times when the club was busiest and provided dancers working those shifts the opportunity to earn especially large amounts of income.)
The manager also allegedly engaged in unwanted touching and made inappropriate sexual comments about S.M. and other dancers, including commenting on S.M.’s breasts and opining about her need for “a real man to take care” of her. Arguably even more disturbing, the manager placed a video camera in the dancer’s changing room and watched them dress and undress.
After the dancer refused the manager’s request for oral sex on Oct. 9, 2015, the manager fired her.
Sexual harassment can happen in any line of work. Some people make prejudiced judgments about the dancers who work in adult entertainment clubs but the reality is that, under New York law, you’re entitled to a workplace free from sexual harassment and gender discrimination, whether you work as a church secretary or an exotic dancer.
The manager’s alleged offer represented something the law calls “quid pro quo” sexual harassment. Quid pro quo sexual harassment happens whenever the harasser promises to alter the terms and conditions of the worker’s employment favorably in exchange for sex or threatens workplace-related punishment if the worker refuses to provide sex.
This can include a variety of scenarios. Examples might include “I’ll make sure you get that promotion” in exchange for sexual favors, “You’ll never work in this industry if you deny me sex,” or “I’ll make sure you get the best/most lucrative work shifts” in exchange for sex. Anyone who has the power to alter the terms of your employment (favorably or unfavorably) is someone who potentially can engage in illegal quid pro quo sexual harassment.
Each victim of workplace sexual harassment responds to her harassment differently. Some women may find comfort and satisfaction in aggressively pursuing their rights and striving to hold their harasser(s) and their enablers accountable. Other victims of harassment, though, may respond to the trauma differently. They may become anxious and fearful. They may be uncomfortable talking about the harassment with anyone and may blame themselves. For some victims, this fear, anxiety, and guilt may lead them to forego seeking therapy or other psychiatric treatment. Others may decline to seek psychiatric care due to a lack of financial resources and/or insurance coverage.
That failure may have an extra negative side-effect: it may limit the amount of evidence available to demonstrate to a court the duration and severity of the victim’s mental suffering. There generally are two primary sources of evidence in support of a claim of mental suffering. One is direct testimony from you (and your friends and family) about how the harassment at work triggered or exacerbated your psychological problems. Another is testimony from a mental health professional. Typically, larger awards of this type of damages will require testimony from at least one medical professional.
However, if you are in a circumstance where you don’t have that kind of evidence, do not make the mistake of thinking that a lack of in-depth proof automatically prevents you from winning anything in a sexual harassment case in New York. While the court may not award the largest possible sum of mental distress damages, you can still recover important compensation.
When and How a Court Can Imply Harm
S.M. didn’t seek psychiatric care and didn’t have a lot of evidence when it came to mental suffering. The court nevertheless awarded her damages. The judge, in reaching that outcome, pointed out that the dancer had “no direct evidence of the severity of her injury or its consequences,” including no evidence of any medical or psychological treatment, and “no suggestion of suicidal ideation.”
Even though the dancer “did not offer any specific testimony at all,” that did not wipe out her case. The judge explained that the law allows the court to imply damages just from the facts established in the worker’s presentation to the court. In S.M.’s case, she found out that her manager was watching her dress and undress in her workplace changing room via a video camera, she endured unwanted comments about her body (including her breasts,) and she dealt with unwanted touching (such as being grabbed around the waist.) Her manager promised to give her lucrative shifts but only if she gave him oral sex. She refused, but “there can be no doubt it cost her job.”
Those facts alone, even in the absence of proof related to the harm the dancer endured, were enough to warrant an award of damages.
An Additional Consideration for Workers Who Seek Treatment
If, unlike this dancer, you’re someone who encountered sexual harassment at work, it triggered psychological harm, and you did seek professional care as a result, you should bear in mind that introducing the issue of mental suffering damages can have both potential benefits and possible drawbacks.
As an example on the drawback side, we can look at the discrimination case launched by a judge in New Jersey. She alleged she was the victim of illegal gender discrimination and that the discrimination she endured caused serious mental health problems that manifested themselves physically, causing “symptoms such as sleeplessness, headaches, anxiety, migraines and nosebleeds.”
These allegations created certain openings for the defense. The defense sought the disclosure of the judge’s medical records, including her mental health records. The defense also persuaded the court to order the judge to attend a mandatory mental health examination with an independent medical provider (a/k/a an “IME”.)
Quid pro quo sexual harassment may be something that’s overt or it may be incredibly subtle. It may be a situation where you have extensive documentation of the illegal conduct and the harm that the harassment triggered, or you may have very little proof. Regardless of the variation in these parameters, you may nevertheless be able to win a sexual harassment case. Before you just give up, make sure you’ve talked to a legal professional first. The knowledgeable New York sexual harassment attorneys at Phillips & Associates are here to help. Our team of New York lawyers is dedicated to helping New York workers harmed by sexual harassment, and we have helped workers achieve successful outcomes in a wide spectrum of scenarios. Contact us online or at (866) 229-9441 to set up a free and confidential consultation today.