Why sexual harassment suits are so hard to win

Sexual harassment lawyer Tom Spiggle can look out across the Potomac River and see where the easy court cases are. Only a bridge separates his Arlington, Virginia, headquarters -- located in a state with no sexual harassment law -- and the District of Columbia, which has a "Human Rights Act" that goes after predators. "Geography," he said, "is an arbitrary factor in sexual harassment."

The almost daily scandals about sexual predators -- in which both media and political personalities are falling like dominoes -- appear to make it the ideal time to consult attorneys such as Spiggle about employers or co-workers who've been making lewd comments, exposing themselves or simply using their position to bully underlings into compromising positions. 

Due to the recent rash of publicity, both insurance companies and lawyers are hearing about many more cases. Spiggle said the number landing on his desk have jumped by 10 percent to 20 percent.

"There's been an uptake in interest in sexual harassment, including transgender issues," said Senior Vice President Kevin Mahoney of Venbrook Group, a specialty insurance broker that helps companies cover the legal expenses, settlements and other damages that arise from these cases.

But the media is just one image. Even though many high-profile alleged or admitted offenders have suffered reputational damage, actually winning a sexual harassment case in court remains a dubious battle. Spiggle, who founded his law firm in 2009 after years of prosecuting federal sexual assault cases, has a realistic view from the trenches.

To begin with is the basic issue of whether a state even has a sexual harassment law or, in the broader sense, a "nondiscrimination" law. More than a third don't. And when it comes to sexual harassment training, it's not mandatory or even "encouraged" in a lot of states -- an important factor if you decide to bring a lawsuit against a boss who has sexually harassed you.

A federal sexual harassment law applies in the absence of state law. It's backed by the enforcement arm of the US Equal Employment Opportunity Commission (EEOC). "In order to bring a case, a complaint must be filed with the EEOC or the state," said Spiggle.

But a court case often gets in the way of this. In 2012, the US Supreme Court ruled that if the employer exercised "reasonable care" to prevent and correct any sexual harassment quickly, the company wasn't responsible.

This means an employer has to tell all its employees in person what constitutes sexual harassment and offer them a way to complain, usually a hot line or email to the human resources department, said Spiggle. If a harassed worker doesn't do this, the employer -- but not the harasser -- is off the hook.

However, this procedure has loopholes, and it's Spiggle's job to uncover them. Did the company make it easy for employees to complain, or did it throw roadblocks in the way as did Congress? Was the complaint secure from the offending boss's prying eyes or from retribution? Did the company create a culture of harassment by protecting executives who molested underlings after it was aware of the complaints? Was there a pattern? And, if so, did it come from the top?

"The fish rots from the head down," said Spiggle. "Sometimes the chief executive participates. Other times they just condone it." Either way, it's a tough case.

EEOC suits are "capped" at $50,000 for small companies, and companies with fewer than 15 employees aren't even covered, which makes it hard to get a major law firm interested in filing suit.

Another factor is timing. A woman who is harassed by her boss can't just think about it, talk to friends, discuss it on the internet and then -- finally -- consult a lawyer after a year or more has elapsed. While states may grant latitude of a year or two, federal sexual harassment cases have to be filed within 300 days. "As with the Bill Cosby case, much of this turns on the statues of limitation," said Spiggle.

And what about criminal charges? These statutes cover as far back as a decade or more, so movie mogul Harvey Weinstein still faces an investigation by the Manhattan district attorney for an alleged rape in 2010.

The offense doesn't have to go that far, said Spiggle. "Even unwanted touching is illegal. It would be criminal assault and battery or sexual assault. The standard is what would be 'unwanted' to a reasonable person, such as being fondled in their private areas." 

And you need evidence. The person harassed has to say they didn't want to be touched in that way, such as a neck massage, preferably in front of a witness.

Filing such a complaint could, in some instances, go nowhere, Spiggle warned. "To be criminal, it requires that a prosecutor be willing to bring a charge, and have the evidence, time and resources to prosecute the case. The fact is that more serious cases, such as a punch in the face, would take priority over unwanted touching."

Then there's simple bullying, which is a tough case to make. Certain "classes" are protected by the EEOC based on sex, race, religion and national origin. But bullying may not be reason enough to take a company to court or even get a nasty, brutal boss fired. The bully has to pick on a class that the law covers to be a violation.

"An equal-opportunity harasser can often get away with it," said Spiggle, "especially if he or she does it to everyone."

  • Ed Leefeldt

    Ed Leefeldt is an award-winning investigative and business journalist who has worked for Reuters, Bloomberg and Dow Jones, and contributed to the Wall Street Journal and the New York Times. He is also the author of The Woman Who Rode the Wind, a novel about early flight.