How to Defend Yourself in a Workplace Harassment Lawsuit

Under federal law, it is illegal to harass an employee based upon a protected characteristic, such as sex, race, color, religion, age (40 or older), national origin, disability, or genetic information. Harassment is illegal when it is so severe or hostile that a reasonable person would find it abusive.^[1] Many states have similar anti-harassment laws, some of which extend protection to other characteristics, like sexual orientation. If you have been sued for workplace harassment, then you need to meet with a qualified attorney to begin building your defense.

EditSteps

EditResponding to the Lawsuit

1. Read the complaint. The plaintiff will start the lawsuit by filing a complaint in court. You will be served a copy of the complaint along with a summons. Note the deadline on the summons for responding to the lawsuit.
   
   • You will receive a complaint if you have been accused of harassment or if you own a business and one of your employees has been accused of harassment. As the employer, you are automatically liable for a supervisor’s harassment if it results in a negative employment decision, such as termination or demotion.^[2]
   • As the employer, you can also be liable if the workplace is “hostile.” This means the harassment is so severe or frequent that the environment becomes offensive and abusive.^[3]
   • Federal law does not generally allow individuals to be sued for harassment; however, your state law might allow it.^[4]
2. Identify the harasser. Read the complaint to see who the plaintiff alleges has been harassing him or her. Harassment is not limited only to supervisors. Instead, the following can create a hostile work environment:^[5][6]
   
   • co-workers
   • subordinates
   • clients
   • customers
3. Identify the harassing conduct. Take out a highlighter and go through the complaint. Highlight every allegation of harassing conduct. Look for the following:^[7][8]
   
   • jokes
   • inappropriate touching or restraining of a person
   • bullying
   • offensive language or slurs
   • offensive comments about a whole group of people generally (such as about the disabled, women, African Americans, etc.)
   • offensive imagery, such as swastikas, pornographic centerfolds, or racist imagery
4. Meet with a lawyer. The best way to protect your rights is to meet with a qualified employment lawyer. If your business is being sued, then contact your company’s general counsel or the lawyer you have on retainer.
   
   • If you need to hire a lawyer, then you should contact your state’s bar association and ask for a referral.
   • See Find an Employment Lawyer for tips.
5. Draft an answer. You must formally respond to the lawsuit by drafting an answer. The focus of this document is to respond to the allegations in the complaint. You must go through each allegation, one by one, and admit or deny each. You can also claim insufficient knowledge to admit or deny an allegation at this time.^[9]
   
   • You should go through the complaint, paragraph by paragraph, with your attorney. Any allegation you admit will be considered true for purposes of the lawsuit, so make sure that you don’t inadvertently admit to an allegation if you think it is false.
   • If you don’t have a lawyer, then see Answer a Civil Lawsuit for tips on drafting your own answer.
6. Raise affirmative defenses. You should also raise affirmative defenses in your answer. With an affirmative defense, you argue that you should win even if everything in the complaint were true.
   
   • For example, you can claim that the federal law doesn’t apply to you. Federal law only applies to employers who have 15 or more employees (or 20 or more if suing for age harassment).^[10] If you do not have this many employees, then you can’t be sued under federal law. However, you could be sued under your state’s law.
   • The employee didn’t file an administrative charge. Before an employee can sue you in court for harassment, he or she must have filed a complaint with the Equal Employment Opportunity Commission (EEOC) or with an equivalent state agency. If the employee didn’t, you can get the lawsuit dismissed.^[11]
   • You can also argue that the employee took too long to file the lawsuit. Once the employee receives their “Right to Sue” letter from the EEOC, they have 90 days to file suit in court.^[12] If the employee waits too long, you can get the case dismissed.
   • Allege that you took care to prevent sexual harassment and provided a mechanism for employees to complain safely but that the employee refused to make a complaint.^[13]
7. File the answer. After you have finished your answer, you should make several copies. Gather all of the copies, plus the original, and take them to the court clerk. Ask to file the original.
   
   • You might have to pay a filing fee. Ask the court clerk for acceptable methods of payment.
   • Make sure that the clerk also stamps your copies. You will keep one copy for your records and send another copy to the plaintiff.
8. Serve a copy of the answer on the plaintiff. If the plaintiff has a lawyer, then send it to the plaintiff’s lawyer.
   
   ^[14]
   • Ask the court clerk for acceptable methods of service. Generally, you can mail a copy of the answer.

EditFinding Facts to Help Your Lawsuit

1. Request relevant documents. Each lawsuit has a fact-finding phase called “discovery.” As part of this process, you may request documents from the plaintiff if they relate to your case. You can also request copies of any document the plaintiff intends to use at trial.^[15]
   
   • You should discuss with your lawyer what kinds of documents will help you disprove the plaintiff’s harassment charge. For example, if the plaintiff mentions sending an email to a colleague about the hostile work environment, then you should request a copy of the email.
   • You should also request a list of all witnesses the plaintiff thinks have relevant information.
2. Sit for your deposition. In a deposition, the plaintiff’s lawyer will ask you questions under oath. A court reporter then records the questions and answers.^[16] You must prepare seriously for the deposition, as anything you say could be introduced at trial.
   
   • Your lawyer can attend the deposition along with you. He or she can object to questions. Also, you can consult with your lawyer at any time. Simply state, “I’d like to confer with my attorney,” and the questioning should stop.
3. Be honest in the deposition. You can expect to be asked embarrassing questions in the deposition. For example, if you make racist or sexist slurs at work, then you should anticipate that the plaintiff’s lawyer already knows this. The lawyer will then probably confront you with the statements in the deposition.
   
   • If you are the owner of a business, then you might be asked whether the plaintiff ever complained to you about harassment. If so, you need to be honest.^[17] You can leave it to your lawyer to minimize damaging information at trial.
4. Request that the plaintiff sit for a deposition. You can also ask the plaintiff (or any other witness) questions during a deposition.
   
   • If the plaintiff has complained that the harassment has led to her being fired, then you might want to defend yourself by arguing that the plaintiff was fired because of poor work performance. During the deposition, you can ask the plaintiff to explain any errors she made on the job.
   • This is a great question because it is a lose-lose issue for the plaintiff. If she refuses to admit to any errors, then she comes across as lacking objectivity.^[18]
   • However, if she does mention errors, then you can bring them up at trial in front of the jury. Because the plaintiff has admitted to making mistakes, then she looks like a poor employee.
5. File a summary judgment motion. After discovery ends, you can try to win the case with a motion for summary judgment.^[19] Basically, you argue that there are no issues of material fact in dispute and that you are entitled to judgment as a matter of law.^[20]
   
   • To determine whether to grant the motion, the judge will look at deposition testimony, your employment policies, and any documents submitted in support or opposition of the motion. The judge will only grant summary judgment if she thinks the plaintiff cannot win if the case goes to trial.^[21]

EditDefending Yourself at Trial

1. Argue that the workplace wasn’t hostile. You can defend a “hostile” workplace claim by arguing that the challenged conduct doesn’t rise to the level of being “pervasive and severe,” which is the legal standard. Indeed, the law does not prohibit petty slights or isolated incidents.^[22]
   
   • For example, the plaintiff might have heard a couple sexist jokes over a fifteen-month period. You can argue that two jokes in that time period does not create an environment where harassment is pervasive or severe.
   • If the plaintiff waited a long time to complain after the harassment started, then you can argue that this is proof that it wasn’t severe. The jury might reasonably conclude that if the harassment were serious, an employee would go immediately to management to complain. The jury might also speculate that the plaintiff is bringing the harassment suit now as payback for being demoted or fired.
2. Argue that the employee deserved to be fired. If the plaintiff alleges that the harassment resulted in a negative employment action (like being fired, demoted, denied a pay raise, etc.), then you can argue that the employee’s own poor performance warranted the negative action. To bolster your case, you should introduce the following at trial:
   
   • Employee evaluations.
   • Reprimands or other written warnings.
   • Proof of errors or mistakes made by the plaintiff.
   • Any documented complaint about the plaintiff.
3. Claim that you corrected the harassment promptly. You can also argue at trial that you treated the plaintiffs’ allegation of harassment seriously and took appropriate corrective actions. To prove this, introduce the following:
   
   • Documents which show the date the plaintiff first complained about harassment.
   • Proof that you took actions to protect the employee. For example, you might have fired the harasser or moved him to a different part of the business. Introduce evidence that shows these corrective actions and the date you took them.
   • Evidence that you continued to monitor the harassment, by speaking to appropriate supervisors, for example.
   • Manuals and employee handbooks which state that harassment is illegal and will not be tolerated.
4. Select the jury. Jury selection can be critical in a workplace harassment suit. You want to make sure that you get sympathetic jurors and not those who might be biased against you. During jury selection, the judge will ask jurors basic questions, such as whether they can be fair and what their job is.
   
   • If you don’t think a juror can be fair, then you can ask the judge to remove the juror for cause. However, you need to point to something that will show bias. This can be difficult. You can’t just say, “The plaintiff is a woman so I think female jurors will be biased in her favor.” In fact, you can’t target jurors for dismissal because of their sex, race, or ethnicity.
   • Instead, to get a juror removed for cause, you need to show that the juror has admitted she can’t be fair, or knows you or the plaintiff personally.
   • Your lawyer will also get a limited number of “peremptory challenges.” You can use a peremptory challenge without having to give a reason.^[23] Your lawyer might use peremptory challenges to remove jurors who work in a similar position as the plaintiff or who look at you with disgust.
5. Introduce evidence. The typical parts of a workplace harassment trial include opening statements, the presentation of witnesses, and then closing arguments.^[24]
   
   • Your lawyer will be able to cross-examine each of the plaintiff’s witnesses, including the plaintiff.
   • The plaintiff will present evidence first. Once the plaintiff presents all of his or her evidence, you will then present your case.^[25]
6. Testify at trial. You will probably have to testify in court as well. Your lawyer will ask you questions and then the plaintiff’s attorney will have a chance to cross-examine you. On the witness stand, remember the following tips:^[26]
   
   • Answer questions in a direct manner. Don’t try to evade the question; the lawyer will be able to get the information out of you eventually.
   • Clarify any misstatements. If you made a mistake in your deposition, then explain why you were mistaken. If you misspeak while on the witness stand, then quickly correct the error. Say, “I’m sorry. I just misspoke.”
   • Listen carefully to the question and only answer the question asked. There is no reason to volunteer information.
   • If you don’t know the answer to a question, then say, “I don’t know.” It is preferable to admit that you don’t know than to guess.
7. Wait for the jury’s verdict. After all evidence has been presented, the judge reads instructions to the jury, and then the jury retires to begin deliberations.
   
   • If the lawsuit was brought in federal court, then the jury must be unanimous to decide against you.^[27] Depending on your state law, a jury may not need to be unanimous in state court.
8. Consider an appeal. Should you lose at trial, then you might want to think about filing an appeal. You should discuss the costs and benefits of an appeal with your lawyer.
   
   • For example, an appeal can be expensive. You will need to have a lawyer draft the legal brief. You must also have trial transcripts created so that the appellate court can see what happened at trial.
   • However, if you think you have a strong defense and that the judge made an error, then you might want to bring an appeal. If you do, you must file your Notice of Appeal quickly—usually in as little as 30 days.

EditSources and Citations

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