Sexual Harassment FAQ - Stages of Litigation

Employee Sexual Harassment Case Questionnaire

Here is a list of questions that an employment attorney may ask during a sexual harassment consultation:

• How long have you worked with this employer? 
• Were you treated differently or harassed because of your sex? 
• Describe in detail, dates, nature and particulars of each incident of sexual harassment or hostile work environment.
• Describe in detail each sexually offensive comment, picture, e-mail or requests that you were subjected to.
• Describe in detail each comment of a derogatory nature with particulars, dates and witnesses.
• Position of the harasser. Is the harasser in supervisory position? Describe the job duties of the alleged harasser to determine his level of authority.
• Did the sexual harassment include physical contact. If so, describe in detail each such conduct.
• Names of each person who may have witnessed any of the sexual harassment.
• Did you participate or encourage any of the misconduct?
• Has this harasser sexually harassed other workers? Identify all other victims.
• Were any members of management around to witness any of the sexual harassment?
• Does your employer have a sex discrimination or sexual harassment policy and have you read it? 
• Did you follow your employer's policy in reporting the sexual harassment and any other steps? 
• Did you report the sexual harassment to your union? 
• When you reported the sexual harassment to management, what action did they take, if any
• Names of each person who was interviewed by management as a result of the sexual harassment complaint.
• After you reported the sexual harassment to management, did the sexual harassment cease? 
• Did management handle your sexual harassment complaint in an efficient and professional manner? 
• Was anyone disciplined or transferred as a result of your complaint of sexual harassment?
• After you reported sexual harassment to management, were you subjected to any form of retaliation or punishment for having complained? Describe in detail.
• Did you suffer any financial losses as a result of the discrimination or sexual harassment? For example, lost wages, benefits, time at work, emotional distress, etc. 
• Did you seek medical treatment or counseling as a result of the sexual harassment? Names of your physicians, counselors and therapists.
• A list of your witnesses.
• How is your work performance otherwise? 
• How do you think that the matter should be resolved?

A discrimination or harassment claim must begin by the filing of a charge of discrimination with an administrative agency such as the EEOC. In Illinois, the Illinois Department of Human Rights, Cook County Commission on Human Relations or the Chicago Commission on Human Relations. Some agencies require that a charge be filed in person while others permit employees to submit charges that were prepared outside of the agency. Some of the agencies accept walk-ins while others such as the EEOC require that an employee make an appointment to come in and complete the charge information.

In any event, within about 10 days after a charge is filed, the administrative agency sends a copy of the charge to the employer and asks the employer to submit a written response within a certain number of days. The agency would then begin an investigation of the allegations in the charge.

There are several factors to consider in determining where best to file a charge. These factors include the type of harassment, the length of time that the discrimination and harassment were ongoing, the date of the last incident of discrimination, the nature of damages incurred, and whether a jury trial is sought. In addition, one must consider the cost of litigating in the various courts and administrative agencies. Generally, the federal court is the most expensive forum whereas agencies such as the Chicago Commission on Human Relations are the least expensive.

The EEOC generally accepts charges that are filed within 300 days of the discrimination complained of. Most of the other agencies require that charges be filed 180 days from the discriminatory action. Charges that are filed with the EEOC are likely to be litigated in federal court. After investigation, the EEOC issues a right-to-sue letter which permits the litigant to file suit in federal court within 90 days of receiving the letter. Federal court litigation can be expensive because of the various required court filings fees. In addition, the rules permit expensive discovery methods such as depositions, witness subpoenas and other extensive written discovery. Federal cases are typically tried in front of a jury and the judges enforce strict deadlines on litigants. Federal law permits litigants to obtain a broader range of damages such as compensatory damages and punitive damages as well as backpay, reinstatement, lost benefits and other all damages that resulted from the discrimination. Punitive and compensatory damages are capped depending on the number of employees that the employer has. Title VII damages against the largest employer is capped at $300,000.

The other administrative agencies such as the Illinois Department of Human Rights, Cook County Commission on Human Relations and Chicago Commission on Human Relations require that charges be filed within 180 days of the discrimination. They also accept a broader range of discrimination cases than the EEOC such as discrimination based on sexual orientation, financial status, arrest record, parental status, and such others. Charges that are filed with these agencies are litigated in front an Administrative Law Judge. No jury trial is available.

The potential damages to be recovered are limited when compared to cases brought in federal court. Generally, punitive damages are not awarded by these agencies and awards for mental anguish can be limited. However, these agencies award a full range of backpay, reinstatement and reimbursements for any lost benefits.. The key advantage of these agencies lies in the fact that they cover a broader range of discrimination and that litigation costs are minimal. These agencies typically charge no filing fees and allow depositions only in special circumstances. Discovery tools are limited to interrogatories, requests to admit, and production requests. Cases that have high backpay damages with minimal claims of punitive and compensatory damages are well suited for these agencies. Cases with significant potential for compensatory and punitive damages potential that require a jury trial are best suited for federal court.

Before starting the investigation, most agencies attempt to resolve the charge through a mediation process. The mediation is an informal process during which the employee and the employer’s representative meet face-to-face with a mediator to attempt to settle the case. Mediators are generally not employees of the agencies. Instead, they are mostly retired judges, attorneys, and others professionals that are trained in alternative dispute resolution. The mediation process is voluntary and neither the employer or employee is required to settle the case. As there are no judges present in the mediation, the employer and employee generally determine the terms of the mediation and can reach whatever agreement that is acceptable to both sides.

The mediation process is confidential. As such, nothing that is stated during the mediation process can be used during the court proceedings or investigation of the case. The person who acts as the mediator has no role in the future investigation of the charge or in the lawsuit. As such, if mediation fails, the discussions held during the process do not have an impact on the ultimate determination of the case. Most mediators require that all participants sign a confidentiality agreement before the mediation begins. If a settlement is reached during the mediation, the terms of the agreement are generally summarized into a lengthy settlement agreement which the parties have to sign in order to complete the settlement.

If the case does not resolve through mediation, the agency where the charge was filed will assign the case to an investigator who will begin a formal investigation of the allegations in the charge. The investigator is not made aware of any facts that were discussed during the mediation conference. Mediators also do not act as investigators. This ensures that the individual investigating the case is not influenced by the mediation conduct of the parties.

Investigators use a variety of tools to determine whether the employer discriminated against or harassed the employee. They speak to co-workers, managers, and supervisors. They also request documents, obtain witness statements and interview company officials. In some cases, the investigator will issue subpoenas to obtain documents necessary to reach a decision. It is therefore important that the investigator be provided with names, addresses, and telephone numbers of all possible witnesses. It is equally important to provide the investigator with any important documents and other material that may help him determine whether the employer violated any laws. The investigator may also need the names and addresses of individuals who may have been treated in a similar manner and those that were treated differently in order to determine whether the Complainant (charging party) was the victim of discrimination.

Sometimes, an investigator will request a Complainant interview. During the interview, the investigator will ask the Complainant specific questions regarding the allegations in the charge to clarify any questions that exist. The investigator also uses this interview to obtain additional details regarding the allegations in the charge.

The investigation process lasts from approximately 6 months to 2 years or more depending on the agency. The investigator generally makes the parties aware of the current backlog of cases and an estimate of a possible completion date. Some agencies such as the EEOC allow employees to request a right-to-sue letter to take their case to federal court before the investigation is concluded. Once after a right-to-sue letter is issued, the EEOC terminates its investigation of the charge. It is a good idea to consult with an attorney to help decide whether to request a right-to-sue letter to go to federal court before the investigation concludes.

After the investigation is complete, the investigator prepares a report that summarizes the findings of the investigation and whether there is a reasonable basis to believe that the employer may have engaged in discrimination or harassment against the Complainant.

If the agency determines that there is a reasonable basis to believe that there has been a violation by the employer, it will attempt to resolve the case though a conciliation process which, like the mediation, is a voluntary process. The investigator attempts to settle the case to avoid the filing of a lawsuit. The conciliation process is much like the mediation process. If the case is resolved through conciliation, no lawsuit is filed and the employer and employer will prepare and sign a settlement agreement

If no agreement is reached through conciliation, the EEOC will issue the Complainant a right-to-sue letter which requires that he or she file a federal lawsuit within 90 days of receiving the letter. In the case of the Illinois Department of Human Rights and other agencies, the charge is referred to an administrative law judge at the Illinois Human Rights Commission who will preside over the case and a hearing/trial.

A lawsuit is started by the filing of a complaint with the clerk of the court. After the lawsuit is filed, the Defendant is sent a copy of the lawsuit and required to prepare a written response to be filed with the Court within a certain number of days (sometimes up to 90 days).

Once the lawsuit is filed, the Defendant may either file an answer responding to the allegations in the lawsuit or he may request that the judge dismiss the case. If the case is dismissed, the case would be over and the Plaintiff may appeal the dismissal. However, most cases are not dismissed at this early state of the litigation. Even though many Defendants file motions to dismiss, most of these motions are denied and the Defendant ultimately files an answer to the lawsuit.

After an answer is filed, the parties begin a process referred to as discovery. Discovery refers to the exchange of information between the two sides of the case. The aim of discovery is for each side to understand what the other side is claiming and all witnesses, documents and evidence that may support the others’ case. Both sides are required to comply with discovery requests and be entirely forthcoming with the other side. To ensure this outcome, judges may prevent one side from using evidence that it hid from his opponent during discovery. For example, if one party conceals the identity or location of a favorable witness, the judge may not let him use that witness at trial as punishment for hiding that witness’ identify or location from the other side.

Sexual harassment discovery takes various forms:

Interrogatories: These are detailed written questions that one side sends to the other to answer in writing with a certain number of days. These are generally used to obtain names and addresses of important witnesses, nature and amount of damages, and the types of damages sought and defenses raised. Document Production Requests/Notice to Produce: These refer to a written list of documents and things such as software, and such that one side requests that the other side provide. These are used to obtain personnel files, policies and procedures, software, e-mails, and handbooks. Depositions: During depositions, lawyers ask questions of witnesses who have to answer under oath. A court reporter or videographer records all of the questions and answers. While one lawyer asks questions, the opposing lawyer would typically make objections to some of the questions. Even though lawyers object to the questions, the witnesses are required to answer the questions unless specifically instructed not to answer. Any objections made are for the record and will be ruled upon by a judge at a later time if the case proceeds to trial

Requests to Admit: These are questions that request "yes" or "no" answers. If the person on whom the request is served fails to respond within the allotted time, he is assumed to have admitted all of the requests.

Even though lawyers for the different sides do not always get along, the are required to cooperate and work with each other to resolve any discovery differences or disputes. If the disputes cannot be resolved by the lawyers, the party who believes that the other is not providing adequate responses to discovery can file a motion to compel answers to discovery questions. Before filing the motion, the lawyer must satisfy the judge that he made a diligent effort to work out his differences with the opposing lawyer. The judge will hear both sides and determine whether the questions are proper and should be answered. Judges may impose a financial or other sanction against any party who fails to cooperate with the other in discovery or conceals information from the other. The discovery process takes approximately 6 to 9 months to complete.

After discovery is complete, the Defendant may file a motion for summary judgment. This motion asks the Court to dismiss the case on the basis that Plaintiff does not have a case that can be won in front of a jury. Many Defendants bring this motion regardless of the strength of the Plaintiff’s case with the hope that the case does not get to a jury. In determining whether summary judgment should be granted to the Defendant, the judge will review deposition testimony, the employer’s policies, testimony of witnesses, and written submissions by the lawyers. In reviewing the evidence, the judge will try to determine whether the Plaintiff, if believed, can win the case if permitted to take the case to a jury trial. If the judge determines that the Plaintiff will not win, he will dismiss the case. If not, he will deny Defendant’s motion for summary judgment and set the case for trial. The summary judgment process takes approximately 3 to 6 months, sometimes longer depending on the judge’s case load.

A case will proceed to trial if the case is not dismissed by the judge and Defendant’s motion for summary judgment is denied. If the case is in federal court and a jury is requested, the judge will set it for a jury trial. For cases filed at the other administrative agencies other than the EEOC, the case will be heard by an Administrative Law Judge with no jury.

Plaintiff is expected to be present each day of trial or hearing. Trial begins with jury selection. The judge and lawyers would interview a pool of potential jurors and the selection process will end with a jury of 6 to 12 persons impaneled. After jury selection, the case begins with the Plaintiff making his opening statements after which the Defendant makes an opening statement. Following opening statements, the Plaintiff will call his witnesses and the Plaintiff’s lawyers will question each of them. After each witness is questioned by the Plaintiff’s lawyer, the lawyer for the Defendant will cross-examine that witness. Th next witness for the plaintiff will then be called. The Plaintiff also testifies at length and is usually subjected to cross-examination by the Defendant’s lawyer. After the Plaintiff calls all of his witnesses, he will then rest his case. Defendant will typically move for a directed finding after Plaintiff’s case. If the motion is denied, the defendant will begin to call its own witnesses to be questioned by its lawyers and cross-examined by the Plaintiff’s lawyer.

After all the witnesses testify, the Defendant would typically again ask the judge to enter a directed finding. This basically request that the judge dismiss the case and not let the jury deliberate and reach a verdict. If the judge grants the motion, the case will be dismissed and the jurors will be released and the case would be over. If the judge denies the motion and lets the case proceed, each side is permitted to make a closing argument to the jury. The closing argument is designed to explain the evidence to the jury and emphasize important aspects of each side’s testimony and evidence.

After closing arguments, the jury is taken to the jury room to deliberate and reach a verdict. The lawyers and parties are required to be close to the court house and to return within a short time in the event the jury has a question or has reached a verdict. When the judge is informed that the jury has reached a verdict, he summons the lawyers and the parties to the court house. Once in the court house, the foreman of the jury will read the verdict and announce the winner and the amount of the award. A typical jury trial for employment cases lasts 3-7 days.

After the jury reaches a verdict, a judge may enter the amount of the verdict as a judgment against the losing side. A judge may also overturn the ruling of the jury or reduce the jury award if he determines that justice so requires. After a judgment is entered, either side may appeal the judgment including the jury verdict. There are strict time limits that are enforced with the filing of appeals. It is thus important to be aware of the deadline to file an appeal and be certain to file the notice of appeal and pay the appropriate Court fees timely in order not to lose the right to appeal. An appeal takes approximately 1 to 2 years to complete.

The vast majority of cases settle sometime before trial. Some even settle after trial. Whether a case settles is generally dependent on how realistic each side evaluates the strengths and weaknesses of its case. Settlements are reached more often when both sides make a full and frank assessment of the strengths and weaknesses of the case. The cases that do not settle result mostly from a disagreement or misunderstanding of the strength or weaknesses of their case or their opponent’s case.

Most cases will settle if both sides evaluate the case dispassionately and objectively. Whether a case settles also depends on how much the Plaintiff is seeking. The larger the sum, the lengthier the negotiations will likely be. Settlements generally leave each side somewhat dissatisfied because neither side typically gets what they want. Instead, each side compromises and leaves with less than a total victory over their opponent. If the case goes to trial, one side wins and the other side loses.

The value of each case is different and depends on the type of discrimination suffered, lost pay and benefits, the length of time that the Plaintiff endured discrimination or harassment, the severity of the discriminatory conduct, and the employer’s response to Plaintiff’s complaints of discrimination and harassment. The value of a case requires a detailed summation of all losses incurred by the employee such as: lost pay, lost overtime pay, lost benefits, job search expenses, COBRA payments made due to loss of work, medical bills, judgments entered against employee as a result of inability to pay bills, and raises lost due to loss of employment.

In determining the amount of mental anguish damages to request, it is important to determine to what extent that the employee sought psychological counseling or treatment and the length of such. In addition to the damages identified above, a Plaintiff may request punitive damages in federal court against an employer who acted recklessly and with malice.

When a case settles, both sides discuss and agree on how quickly the funds will be made available to the Plaintiff. Generally, the parties agree that payment will be made within weeks of signing the settlement agreement. In settlements, the parties have control of the terms of the settlement and can negotiate the deadline for paying the Plaintiff. When a case is won at trial, payment is required to be made within weeks of the judgment. If an appeal is filed, the payment will not likely be made until after all of the appeals are exhausted. An appeal sometimes takes more than 1 year to complete.

If a settlement conference in set in front of a judge or magistrate, the parties are all required to be present. The judge generally acts as a mediator. He typically asks each side to make an opening remark. After opening remarks, the judge typically meets with each side privately to discuss the relative strengths and weaknesses of their respective positions. The judge will continue to meet with each side to discuss ways of resolving their differences and narrow the gap in the respective positions. The conference typically take several hours to complete. If the judge is successful in resolving the case, the parties typically prepare a written settlement agreement that will be reviewed and signed in the weeks following the settlement conference.

To prepare for a settlement conference, each side should know the facts of the case thoroughly by reviewing all of the pertinent documents, evidence, deposition testimony, witness testimony, damages, and expenses. Each side should also be thoroughly familiar with the relative strengths and weaknesses of his case to conduct a realistic assessment of his position. Each side should also be prepared to show the judge relevant case law, testimony, and documents that support its position. Settlement conferences are convened for the benefit of the parties to the case. It is a voluntary process during which no one is required to settle or accept a settlement offer that it does not wish to. Each side is able to terminate the process at will or reject any settlement proposals.