Maxadyne Resources, Inc. Comment Form

Actions You Can Take to Avoid
Being a Defendant in a Sexual Harassment Lawsuit

by Kay Burkhalter, Esq.

Can you even imagine yourself as a woman defendant in a sexual harassment case or a discrimination case? You've always believed in equal rights for all persons. One of the reasons you started your own company or rose to the top in the corporate world or become a human resources manager was because you treat all persons with equal respect. Then - wham - you're hit on the hand with the plaintiff's petition by the uniformed deputy sheriff in front of everyone at the office. This has been happening with increasing frequency to women in the workforce. For example, consider the following cases:

In 1993 in Gutierrez v. California Acrylic Industries, Inc., a California jury awarded $1.17 million to a man who alleged his female supervisor forced him to have sex with her in order to keep his job.
In 1996 in Milliken v. Peace Corps, a male at the Peace Corps" D.C. office received a $250,000 settlement of his sexual harassment suit in which he alleged his female supervisor retaliated against him for refusing her sexual advances.
In 1997 the Superintendent of the Dallas Independent School District, a woman, was alleged to have sexually harassed and retaliated against one of her male subordinates. Allegedly, she ultimately resigned from her job.
Now, in March 1998, the United States Supreme Court in Oncale recognizes same-sex sexual harassment as actionable under Title VII. Oncale v. Sundowner Offshore Services, Inc., 118 S.ct.998, --U.S.---, 1998.

Since even a false claim by a man or a woman against you can damage your career as well as be expensive to defend, you need to be aware of the actions you in particular and your company should take to reduce harassment and discrimination claims in the workplace against you and/or your company. These actions are:

Establish and publicize well-written policies prohibiting harassment/discrimination with established, respected formal complaint channels.
Provide training to managers and nonmanagers.
Investigate complaints swiftly, thoroughly, and fairly, and document your investigation.
Establish penalties against harassers/discriminators and enforce them.
Enforce penalties against managers who allow inappropriate behavior to continue and reward managers who don't.
Evaluate your behavior.
For example, throw away your l0l dumb men jokes folder, and stop saying anything that might be interpreted as demeaning, harassing, or unfair to men. Remember loose lips sink ships. Take down your Firemen's Beefcake Calendar (which you bought only to support the fire departments' charity fund!). Avoid the most frequent type of EEOC complaint - the sour grapes relationship - by not dating people at work. Remember the workplace is not your private dating pool even if he really is quite a hunk. Above all,
Document, document, document employees' work performances.
If an employee makes an allegation of discrimination to you about you, report it immediately to the proper channels and request an investigation.
Don't ever retaliate against the employee or ex-employee.

You know the lawsuit is frivolous, so don't blow it by retaliating against the complainant. Too many insufficient claims of discrimination become solid lawsuits when the executive cannot control her anger and sense of unfairness and then retaliates against the employee or ex-employee for making the complaint, participating against the executive in the investigation, or filing the EEOC charge or lawsuit. So stay cool, calm, and collected. Since we live in a highly litigious society, you as a career woman should view the lawsuit as part of your management training process. Finally,

Hire a good legal counsel.

Hire someone who specializes in the area; don't rely on your corporate transactional lawyer. Remember, law today, like medicine, has become highly specialized. Interview your lawyer like you would your doctor and choose someone with whom you feel comfortable, who has good credentials and a good success ratio, and who will serve your legal needs promptly and efficiently. If the company is paying your legal fees, check out the lawyer. If you don't think the lawyer is qualified or if you feel there is a conflict between you and the company, ask the company to pay for a separate lawyer. Surprisingly, on some occasions, the company will either change lawyers or provide you your own lawyer. The company is just as interested as you are in establishing that this is a frivolous lawsuit.

In conclusion, your actions and your company's actions in establishing and publicizing policies, providing training, swiftly and fairly investigating complaints, combined with an ongoing self-evaluation of your behavior and a calm collected non-retaliatory behavior by you if a claim is made, all these actions can and often do result in the positive outcome you so desire-dismissal of the frivolous lawsuit.

Please note: The contents of this article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

ABOUT THE AUTHOR

Kay L. Burkhalter is partner in the Houston law firm of Burkhalter, Karahan, Palmer & Armstrong, L.L.P. She is a graduate of Rice University with a BA in Political Science and a JD from the University of Houston School of Law.

Ms. Burkhalter represents major corporate clients in employment advice and litigation as well as general litigation. She is a well-known speaker and writer on all aspects of employment law. She is also a certified mediator.

Ms. Burkhalter has been a trial lawyer since 1974, and has tried more than 100 cases in court. She was the first woman to make Chief Prosecutor in Harris County and to successfully try a capital murder case. Ms. Burkhalter has received summary judgments in cases involving sexual harassment, assault, the Americans with Disabilities Act, the Age Discrimination Employment Act, and the Family Medical Leave Act.

She is a member of the Lawyers for Literacy committee, Houston Bar Association. Ms. Burkhalter has served on the Legislative Committee of the Houston Bar Association and on the State Bar Grievance Committee 4EE. She is past director of the Houston Young Lawyers Association and received the Award for Outstanding Service from that Organization.