As a Maryland employment attorney based in Baltimore County, I know that one of the most common telephone calls that plaintiffs' employment attorneys receive is from a distraught, frustrated woman (or, once in a while, a man) who believes she has been sexually harassed and wants to pursue legal action against her employer. In evaluating such cases, experienced employment lawyers ask some of the following basic questions:
a) Was this a one-time incident or a pattern of inappropriate conduct? Unless a one-time incident is severe, such as a sexual assault, most courts will not allow a sexual harassment claim to proceed to trial unless there has been a pattern of incidents, whether verbal harassment or physical or a combination. Obviously, the more incidents, the stronger the claim.
b) Did the plaintiff complain to her supervisor or manager or the human resources department about the sexual harassment, and if so, what was done in response to the complaint? If the plaintiff failed to complain about the harassment, then the employer will usually not be held liable. Similarly, if the plaintiff complained and the employer disciplined the harasser, and the harassment stopped, then the employer would likely not be held liable. On the other hand, if the plaintiff complained, and the harassment continued, or the plaintiff was retaliated against, then the plaintiff may have a strong case.
c) Was this purely verbal harassment, or was touching involved? Obviously, the worse the language and the sexual comments, the better the legal case. When inappropriate touching is involved, the case becomes much stronger, especially if there is repeated unwelcome touching.
d) Is the plaintiff still working for the employer, or has she quit or been fired? When a plaintiff quits her job, her legal claim for damages may be diminished; on the other hand, if the plaintiff stays at the job, the employer will argue that any harassment must not have been that severe. The strongest legal case is usually presented where the employer terminates the plaintiff for complaining about the sexual harassment (or makes her job so miserable that she had no choice but to quit).
While none of these questions is the "be all and end all" to any sexual harassment claim, the answers to these basic questions help an employment attorney determine the strength and potential success of any sexual harassment claim. If you would like an experienced attorney to evaluate your employment situation and advise you about whether you make have a viable legal claim, please feel free to contact me at anytime.