Articles Posted in Sexual Harassment

Sexual harassment claims often involve salacious allegations that can form the basis of a punitive damages award, the purpose of which is not to compensate the victim but to punish the wrongdoer and thus deter similar misconduct in the future. Fox’s payment to Gretchen Carlson of reportedly $20 million to settle sexual harassment allegations against its ousted founder, Roger Ailes, recently brought workplace sexual harassment into the limelight. According to her complaint, among other incidents, Ailes allegedly told Carlson: “I think you and I should have had a sexual relationship a long time ago and then you’d be good and better and I’d be good and better … sometimes problems are easier to solve [that way].” The size of the settlement suggests that Fox may have been concerned about a jury awarding Carlson significant punitive damages.

More recently, the Massachusetts Supreme Judicial Court (SJC) in Gyulakian v. Lexus of Watertown had the opportunity to clarify in what circumstances a jury may award punitive damages in sexual harassment cases under the Fair Employment Practices Act, namely M.G.L. c. 151B, §9. There, the jury returned a verdict in favor of the plaintiff of $40,000 in compensatory damages and $500,000 in punitive damages. In response to the defendants’ Motion for Judgment Notwithstanding the Verdict (JNOV) pursuant to Massachusetts Rule of Civil Procedure 50, the trial judge wiped out the jury’s punitive damages award and upheld the compensatory award. Both parties appealed and the SJC granted direct appellate review.

Overview: In Picco v. Town of Reading, the MCAD found in favor of the Complainant and awarded emotional distress damages. This is the MCAD’s second decision in 2016. Although this case began based on causes of action for sexual orientation and perceived sexual orientation, the hearing officer noted that the evidence presented at public hearing did not show that the Complainant is gay or was perceived as such. The MCAD noted that “[s]uch a discrepancy is not fatal, however, because the crux of the charge is that Complainant was subjected to homophobic names and a sexual assault by Lt. Stamatis.” In doing so, the hearing officer concluded that the Complainant stated a claim for sexual harassment based on the homophobic slurs directed at him.

Decision Date: February 26, 2016

Whether it’s a disability discrimination or sexual harassment claim, employment discrimination cases in general tend to be very fact-intensive, making the discovery process and depositions in particular all the more critical. As the moving party, it is the employee’s ultimate burden to prove discriminatory bias which, as discussed here, can be inferred in several ways. Generally, the greater the opportunity to gather information through the discovery process, the better an employee’s chance of prevailing at trial.

The opportunity to gather sufficient evidence, however, can be severely hindered where an employer engages in obstructionist tactics. Namely, in depositions, such tactics take the form of speaking objections, witness coaching, and improperly instructing a deponent not to answer a particular question. In addition, even after a deposition, a deponent may attempt to distance his or herself from unfavorable testimony by making substantive changes to an errata sheet.

Before proceeding to trial, an employment discrimination case in court must survive a hurdle in the procedural process known as summary judgment, which is governed by Federal Rule of Civil Procedure (FRCP) 56 and Massachusetts Rule of Civil Procedure (MRCP) 56. As discussed here, the process is different when an employment discrimination case remains under the jurisdiction of the Massachusetts Commission Against Discrimination.

Under federal law, three Supreme Court decisions handed down in 1986, referred to as The Trilogy, examined the summary judgment standard. In Anderson v. Liberty Lobby, the Supreme Court characterized the summary judgment inquiry as “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” In doing so, the Supreme Court delineated the province of the jury: