1. To sue or not to sue
Q. Is a sexual harassment lawsuit against my employer a good idea?
A. This is a very personal choice that involves different considerations for every potential plaintiff. Some reasons why people choose not to sue their former employer include (1) litigation is a long, drawn-out, stressful and painful process; (2) the coworkers you consider your friends may not be willing to testify for you; (3) your employer will try to scrutinize your personal life. Some people also fear that the public record of a lawsuit may prevent them from getting a job somewhere else, though I have not seen evidence of this in my many years of law practice.
2. Important information to provide to your attorney
Q. What information will a client need to provide to her attorney in a sexual harassment lawsuit?
A. Your attorney needs the names and contact information of all witnesses to the events in question in your lawsuit whether you think they will testify for you or against you and whether you think they will remember or not. Your attorney will also need a complete employment history from you that states the names and addresses of each former employer, the dates of employment, the titles you held, the names of your supervisors, your rate or pay, and the reasons for your separation from the employer. Your attorney will also need a chronological account of the incidents you are complaining about in your lawsuit such as harassment or other unfair treatment. Further, your attorney may need the names of all of your healthcare and therapy providers to prove injuries the defendant caused to your health
3. What evidence should I gather to prove my sexual harassment claims?
Q. Should I provide my attorney with any documents relating to my case?
A. Yes, provide your attorney with any and all documents in your possession or that you have lawful access to. Here are some of the items you should provide to your lawyer as soon as possible:
- paychecks, pay stubs, itemized wage statements, and other payroll records
- expense (mileage, parking, travel, tools, supplies, materials, meals, uniforms) and reimbursement records
- direct deposit receipts and bank statements showing when you were paid wages
- text messages, email messages, Facebook chats, Twitter tweets, and letters between you and coworkers and supervisors
- prior lawsuits, claims, complaints and grievances to your employer or against your employer
- complaints to the DFEH, EEOC or Labor Commissioner
- performance evaluations
- disciplinary notices and write-ups
- termination and layoff notices
- severance agreements, settlement agreements, and releases
- personnel files
- email communications
- company policies
- employee handbooks
- company manuals
- employment agreements
- disciplinary notices
- awards and commendations
- pay raise notices
- work schedules
- greeting cards from coworkers
- direct deposit stubs
- W-2 and W-4 forms
- resumes (new and old)
- job applications
- personnel files
- time cards and time sheets
- work uniforms
- name tags and badges
- work related photographs
- work related video recordings
- work related audio recordings
- Diaries and journals in which you record your feelings (depression, tragic events) and incidents at work
4. Cooperation with sexual harassment attorney
Q. Will my attorney and his staff bother me with frequent questions, many of which I have answered for them previously?
A. Probably. You are not your attorney’s only client and, until trial, no one will know your own case better than you. As part of your attorney’s representation of you, there may be times when the attorneys and paralegals frequently call you to ask you questions so we can better represent you. As inconvenient and bothersome as these questions may be, you must give your attorney and his staff your full cooperation, patience, and courtesy.
5. Documents to keep track of
Q. Are there any documents I should begin saving and providing to my sexual harassment attorney?
A. Yes, save all of your records of efforts to find a new job, including applications and resumes, job advertisements you check, internet job postings you respond to, responses from prospective employers. Also, keep notes of every effort you make to find a job on a daily basis. This will help prove your case for lost wages. You may still be working for the employer. Any records you gather during your employment that relate to your employment are evidence. You must save them and provide them to your lawyers.
6. Other lawsuits you’ve had may be different from your sexual harassment lawsuit
Q. When I had my car accident case with another lawyer, I didn’t have to do much work on the case. A few months after I hired the lawyer, I received my settlement check in the mail. Will my lawsuit against my employer for which I have hired my sexual harassment attorney be the same?
A. No. Sexual harassment and wrongful termination are very different from most personal injury lawsuits like car accidents and slip and falls. You will have to spend a great deal of time communicating with your new lawyer’s office and providing them with information. It will be a hassle and will likely interfere with other things you are busy with such as work, family life, etc. You have chosen to sue so you must bear the responsibilities that go with it. The most time consuming tasks you will be directly involved in are your deposition and an “independent” mental examination by a physician or healthcare practitioner chosen by the defendant’s lawyers.
7. Witnesses to the sexual harassment claims
Q. There are witnesses to the sexual harassment and mistreatment the Defendant subjected me to. There are also other victims of the Defendant’s sexual mistreatment. Should I put my lawyer in contact with them before he file’s my sexual harassment lawsuit?
A. Yes. The Defendant’s treatment of others may be very important to proving your claims. In addition, the testimony of people who saw what the Defendant did to you may be very important at trial to prove your case. Provide your lawyer with the names, job titles, mailing, home and email addresses, and phone numbers of your current and former coworkers and customers and any other witnesses as soon as possible (whether or not you think they will be able to help your case) so your attorney can decide whether to interview them or get a statement from them before filing your lawsuit. For each, individual be sure to provide a short summary of what your lawyer can expect the individual to testify about. For the witnesses who you believe will testify in your favor, make sure they are able to testify at the court in person at the time of trial.
8. Communications with my Defendant-Employer
Q. Is it ok to communicate with my employer where I was harassed about matters involved in the sexual harassment lawsuit?
A. Never communicate with your former employer (or its managers, owners, officers, directors, supervisors, human resources, payroll department) unless you have cleared it with your attorney first. This is especially true for anything you might say in an email message to your boss. You may end up saying something that will hurt your case. The Defendant may be able to demand your text messages and email messages in the lawsuit. Caution: If you are a current employee, your employer may wish to interview you about your claims or about allegations that you have engaged in misconduct. You must cooperate in such investigations. If you don’t it could jeopardize your claims and your continued employment.
9. Secret audio recordings
Q. I think I can catch the man who sexually harassed me in a lie if I call him and don’t tell him I am recording the call. Can I use the recording in court as part of my lawsuit?
A. Probably not. It is illegal to record a confidential communication in California without the other party’s consent or authorization from law enforcement. The courts will not allow introduction of such recordings as evidence at trial and you may open yourself up to a prosecution for a felony. A conversation that takes place in the presence of lots of other people in a public setting may not be confidential. In such a situation it may be legal to record a conversation in such a setting. Also, under Penal Code Section 633.5, you may record a person who his threatening violence, extortion, or bribery with or without their knowledge and consent and such recordings may be admissible in court against them.
“Skeletons in my closet”
Q. In the past, I have done some things I am not too proud of. Will the Defendant bring them up in my sexual harassment lawsuit or try to find out about them.
A. Yes, the Defendant will try to dig up any and all “dirt” they can find on you and present it to the jury so they won’t like you. Defendant may do this to distract the jury from considering the terrible things the Defendant did to you. So, Defendant will try to find out whether you, your spouse, or your children have had. Please remember that EVERYONE has a skeleton or two in his or her closet (“judge not lest yee be judged!”). Just because you, your spouse or your child has done something embarrassing in the past does not mean that the Defendant’s mistreatment of you is excusable. You still deserve to be in court. The smartest thing to do is to tell your attorney about such “skeletons” so he can take action to shield such private information or prevent such information from becoming an important part of the lawsuit.