#MeToo’s most potent enemy: higher awards for harassment victims in the workplace
Original posting by Howard Levitt, published in The Financial Times, October 16, 2018
In the wake of #MeToo, we have seen an increasing number of employees launching lawsuits for sexual harassment, many reported in the media. My law office has been consulted by hundreds of such employees and assisted many in holding their abusers to account.
Yet a large number of employees have little practical recourse – other than the media – when it comes to stopping, or seeking compensation for, sexual harassment/assault. This is a function of the limited damages awarded for this type of wrongdoing relative to the real-life reputational, professional and financial costs of legal proceedings.
While courts have awarded significant damages for violent and penetrative sexual assault (e.g., $175,000 in general damages plus $25,000 in punitive damages for the single act of sexual assault committed by Dr. Syed Ali against his coworker and friend, Dr. Iram Zando, the vast majority of sexual harassment/assaults, which are not penetrative or overtly violent, attract comparatively small awards of $5,000 to $25,000. It is noteworthy that, in the Zando and Ali decision, the courts awarded greater punitive damages because Ali had not faced criminal prosecution — another good reason why complainants should proceed civilly rather than criminally.
These lower judgments in most cases are in line with the reasonable expectation that a lesser crime should attract a lesser penalty or compensatory award. But how much less an award is appropriate, and is the current range for more minor conduct (such as sexually degrading comments or a slap on the derriere) too low?
Unlike in the criminal context, suing generally involves suing your employer. There are many reasons for that; vicarious liability, that is, the liability of a company for their employees’ conduct, the corporation’s actions or inactions that allowed the culture to flourish, its failure to properly investigate a related complaint or its permitting the conduct to continue. The employee also will sometimes sue the employer to pressure it to terminate the abuser.
Unfortunately for complainants, suing one’s employer almost always effectively ends the employment relationship, resulting in the negotiation of a severance package. Even if the severance package is sizeable, it is, for some, not worth forfeiting continued employment and potential career advancement.
Severance may be entirely acceptable to a complainant with good job prospects. However, to a young, low-paid employee who doubts their ability to relocate quickly, deciding to proceed involves the weighing of continued livelihood vs. the tolerance of systemic abuse.
Modest damage awards encourages a culture of silence and licence to abuse – in particular – young, low-income and otherwise vulnerable employees.
The Human Rights Tribunal, which hears complaints of sexual harassment/assault, has reduced the cost and speeded up the legal process for complainants who can sometimes get to a hearing within a year. But the damage awards for sexual harassment/assault still generally range from $5,000 to $25,000, with few outliers.
Enter the mainstream media and #MeToo. The media’s recent interest in victims’ plight has levelled the playing field by dramatically escalating the risk to employers of condoning the conduct, through reputational cost and loss of business, potentially in the millions of dollars. Employees with relatively low economic power can hold their employer’s feet to the fire and negotiate a larger settlement and often, the dismissal of the abuser.
Some critics have decried the role of the media in destroying the reputations of alleged abusers without due process (i.e., on the basis of unproven allegations). The current alternative is due process through the court system where, even if the allegations are proven, the complainant may garner a meagre damages award. It is little wonder that employees are turning to the media for what they view to be more restorative “justice.”
One answer to this conundrum is translating increasing public outcry into higher damages for sexual harassment/assault victims in the workplace. Currently, the factors considered in awarding damages include the complainant’s vulnerability (i.e., age and position); the number of incidents, frequency, level of violence, invasiveness and degradation; the abuser’s age and whether he/she was in a position of trust; and the consequences for the victim including ongoing psychological injuries. Deterrence of the abuser and employer is also considered in awarding punitive damages, which are meant to punish wrongdoing as opposed to compensating the victim.
Punitive damages, however, tend to be lower than compensatory damages, implying a primary focus on making the victim whole over deterring workplace harassment/assault.
Sexual harassment/assault cases would benefit from a heavier focus on deterrence, possibly with awards commensurate with the economic power of that employer should they be found to have condoned the conduct. This would provide affordable access to justice to more victims and lead to safer workplaces.
While most large and public employers are attuned to their workers’ safety and have implemented effective policies to stop workplace harassment/assault, I am still surprised at the occasional company condoning blatant abuse, usually because they are protecting key executives. This is more common among smaller employers who lack the resources of a Human Resources department or are unaware of the legal and reputational risks. Both risk media exposure and brand damage and should seek legal advice both to review their policies and approach before, not merely at, the first sign of a sexual harassment/assault complaint.