Settling the sexual harassment and employment discrimination case
The plaintiff’s psychological injury attorney will often focus on the behavior of the company rather than the perpetrator
The settlement value of your sexual harassment or employment discrimination case is more dependent upon the behavior of the company than the behavior of the perpetrator. Because of this, your psychological injury attorney’s settlement communications should focus on the defendant company’s failure to protect you, and perhaps other employees, from the perpetrator.
In any settlement negotiations or mediation brief or settlement conference statements, the following factors, if they exist, should be emphasized by your psychological injury attorney:
- Negligent hiring of the perpetrator.
- Failure to provide adequate sexual harassment training to the perpetrator, to the perpetrator’s supervisors or to you.
- Inadequate sexual harassment or employment discrimination policies.
- Failure to adequately disseminate sexual harassment or employment discrimination policies.
- Once the harassing or discriminatory behavior of the perpetrator was reported to management or human resources, failure to take appropriate steps to investigate and stop that behavior before you were injured by it.
- Any steps that were taken to protect the perpetrator, either before or after learning about the harassment or discrimination that was inflicted on you.
- Any steps that were taken to punish or retaliate against you or others when sexual harassment or discriminatory behavior was reported to management or human resources.
- Failure to have an adequate human resource department.
- The failure of the company to provide employees of the human resource department with enough power to control the behavior of managers and other potential perpetrators.
- Failure to take appropriate steps to discipline the perpetrator after a finding of harassment, discrimination or other inappropriate conduct.
- The company’s awareness of prior claims against the perpetrator and against others working in the company.
It is doubtful that all of the above factors will be present in any single sexual harassment or employment discrimination case. However, often at least one of the factors is present and should be emphasized by your mental injury lawyer when determining and discussing the settlement value of the case.
Duration and severity of the conduct is important
Although the duration and severity of the harassment or discriminatory conduct perpetrated on you is not as important as the bad conduct of the company, it is still an important settlement factor. Everything else being equal, a more severely harassed or discriminated-against plaintiff should receive a larger settlement than a plaintiff who has only had to endure relatively mild harassment or discrimination. That is because most employers and their insurance companies will probably see a case of very severe and pervasive harassment or discrimination as a high risk case and will be more motivated to settle the case for a reasonable sum than gamble on a trial. The internal politics of the employer may be such that it is easier to justify a large settlement payment based upon the outrageous misconduct of one employee than to admit to a company-wide failure to protect employees from perpetrators.
Size of defendant employer affects award
In evaluating a sexual harassment or employment discrimination case, the size of the defendant company may be an important factor. The larger the company, the greater will be a jury’s expectation that the company will act appropriately to protect its employees. It is true that a mom and pop grocery store and a multi-national corporation may have the exact same duty under the law to prevent sexual harassment and employment discrimination and to create a hostile-free work environment. Even so, the failure of a multi-national corporation to comply with that law is far more likely to result in a large verdict than the same failure of small grocery store owners. Thus, the size of defendant employer should always be taken into consideration when evaluating settlement in this type of case.
Existence of employment practices liability insurance
The size of the defendant company in a sexual harassment or employment discrimination case might be less significant if the company carries what is called “employment practices liability insurance” (EPLI). This insurance generally provides coverage for the harassing and discriminatory acts of non-officers of the company, and arguably for the officers of the company. A case against an employer who has an EPLI policy (unless the policy contains a very large deductible) is generally far easier to settle than a case against an employer that is not insured by an EPLI policy. That is because the employer will normally pressure the insurance company to offer the plaintiff a fair settlement amount to avoid the exposure of the employer to a potential punitive damage verdict, which would be uninsured.