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  1. Cady36
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    Cady36 Member

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    Sexual Harrassment?

    Discussion in 'Research' started by Cady36, Jan 9, 2009.

    Can a consultant sue due to sexual harrassment? I've searched all over the place, and it looks like the answer is "no" (which is good for planned retribution in the story - lol), but obviously Google ain't the definitive legal guide.

    Anyone know?

    Thanks,

    Cady
     
  2. captain kate
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    captain kate Active Member

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    I believe anyone can

    I believe according to DOJ rules, anyone can sue...the first place I would say look-if you're in the USA-if the Department of Justice of the DOJ...they could answer your questions.
     
  3. Cady36
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    Cady36 Member

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    Well, I looked into the federal law (the sexual harrassment stuff is an extension of the 1964 equal rights law, with clarifications in later years) and everything I saw applied to employees. If a consultant harrasses an employee of the company he/she is working for, that'd be sexual harrassment, by law. But there's nothing I've seen that turns it around - that an employer sexually harrassing a consultant is sexual harassment, by law. That's where I'm looking for clarification.


    It can't be anyone able to sue - otherwise, anyone who got hit on in a bar could sue - lol. Everything I've seen is geared to an *employee*, whether harrassed by his/her boss, coworkers, a vendor for that company, or a consultant for that company...but the only laws I could find protect employees, and a consultant isn't. Eh, maybe I'll ask my attorney. I'd sort of have a hard time explaining why I needed to know, though - lol - he's pretty conservative...I don't know that he reads fiction! lol

    Though I guess you can sue anyone; the question is, would the law support you?

    Cady
     
  4. captain kate
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    captain kate Active Member

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    well a consultant can be considered and employee albeit a contract employee...the law might be different for them, but I didn't think so.
     
  5. Cady36
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    Cady36 Member

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    Thanks, Kate:

    I kind of need to know specifically (because the story will change depending on the facts). I've been searching for a couple of hours and have found instances where consultants have been sued FOR sexual harrassment, but never one that's sued a client.

    I understand the potential of a consultant being termed a temporary employee, but there are specific and fairly clear laws that deem a consultant such. I know those laws, because I've been a consultant for a long time, and have learned how to avoid the employee label.

    Anyway, thanks. I'll find an attorney (maybe not mine - lol) and see if I can get a definitive answer. Just thought there might be a legal eagle in the forums.

    Thanks again!

    Cady
     
  6. NaCl
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    NaCl Contributing Member Contributor

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    The hard part about a lawsuit is proving cause and effect. You will have to prove the harassment, prove there were financial damages and prove the harassment caused the damages. The toughest part might be finding an attorney willing to take the case.
     
  7. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    I'm gratified that you find us more reliable than google as a source for legal research, but I'd really recommend starting with .gov sites. After you become more familiar with the contents of those sites, talk to a lawyer. Most have initial consultation at no cost, and if you let them know you are researching it for a piece of fiction (you are, I hope!), he or she may be willing to point you to some research materials.

    If you have a friend or relative who is a lawyer, he or she may be able to get a colleague to give you a few minutres' overview as a favor (I'm assuming your lawyer friend doesn't work directly in that area of law).

    Also, anyone in a corporate HR department should be able to proivide quite a lot of information. They have to know how not to get their company sued!
     
  8. Cady36
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    Cady36 Member

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    Yep, definitely for fiction. (Hard to be sexually harassed when you're working on in a cabin 3000 miles away from the people you are working with - lol.)

    The lawyer I was going to talk to isn't a friend, he's our...lawyer. Which is why I hesitate to ask him. Thinking about it, though, I've got a cousin who is or was an assistant attorney general in Washington State. Haven' talked to him for years; good reason to bug him.

    And thanks, NaCl - if you're correct about the definition, then it works really well in my story, as he definitely won't drop her contract, but he won't stop coming on to her, either.

    (I just don't want a reader going "Well, why doesn't she just SUE the b***ard!")

    She'll get back at him ;-)

    Cady
     
  9. Cogito
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    Cogito Former Mod, Retired Supporter Contributor

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    Retaliation for reporting sexual harassment is itself caqtegorized quid pro quo sexual harassment - the same as "sleep with me if you want to keep your job" - and is criminally prosecutable.
     
  10. Cady36
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    Cady36 Member

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    She is retaliating. I just wanted to make sure that it was plausible that she wouldn't simply try to sue, because suing would be easier.

    Here's what EEOC.gov says:

    "Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment."

    And she's intimidated. But she's not an employee, and she doesn't have to work all the time in his proximity; she does part of the time, but it's really not her "work environment".

    It goes on to say:

    Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

    " * The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
    * The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
    * The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
    * Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
    * The harasser's conduct must be unwelcome."

    All of those seem to be employee based.

    She's doing work for him and his brother, and the brother does make an effort - sometimes successful - to get him to tone down. Her contract is never in jeopardy, she's just damn uncomfortable with the whole thing. This is enough for an employee ("intimidating, hostile or offensive work environment") She gets back at him, and they end up friends. This is all pretty early into the story. It's not a huge part of the plot or anything, just part introducing the dynamics between these three people (her and her two brothers), and I can't believe I'm spending so much time making sure it is plausible - lol - but I'm addicted to details. I hate when I'm reading a story and suddenly the main character is doing something complex and implausible rather than the simple and obvious thing, if that makes sense.

    I think she might be able to sue, but I think it'd be easier for her to just get revenge :p

    Thanks!

    Cady
     
  11. NaCl
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    NaCl Contributing Member Contributor

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    Outside of special protections for employment situations, there must be demonstrable "damages" for a lawsuit to be viable. You have pointed out that her income and contract are NOT at risk. She's only complaining about a jerk who makes some kind of sexual comments or advances. Here is your dilemma as a writer...if the antagonists sexual behavior is annoying but not threatening, then your protagonist's only recourse is to "just say no", just like she would do in a bar or at a sports event if some guy kept asking them out. On the other hand, if the "pressure" grew to the point of becoming threatening, then she should get a restraining order to control his phone calls, inappropriate touching or other objectionable behavior. A lawsuit would then be possible if 1) he violated the restraining order, or 2) her contract was terminated (damages) in retaliation for the legal intervention.

    This lawsuit possibility is actually the dilemma...i.e. if she gets a restraining order, then subsequent reaction is likely and she will carry the burden of proof...versus putting up with the sexual harassment and finding another way to retaliate. Therein lies the tension that could make for a great story.
     
  12. mammamaia
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    mammamaia nit-picker-in-chief Contributor

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    there is also a point where sexual harrassment can cross over into stalking, which is then a criminal matter, not merely a civil one...
     
  13. Cady36
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    Cady36 Member

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    Hmmm...

    I love these forums. The whole sexual harrassment thing results in a minor plot point in the story that I'm working on, but NaCL and Maia's comments just gave me the idea for a whole new story.

    Thanks, guys :)

    Cady
     
  14. Cady36
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    Cady36 Member

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    Just an update on this topic, in case anyone ever does a search for it, and finds the unresolved original post.

    I talked to an attorney, and his take on it was that while she might not be able to win, she could certainly sue. Winning wouldn't be the point of the law suit and he didn't think it mattered. (He thought it was doubtful that she would win, given the working relationship I laid out.)

    What he would try to do, as an attorney, was force the issue into settlement because the company wouldn't want the bad publicity, and would want the issue just to go away. He wouldn't expect a case like that to ever make it to court, but thought it likely he'd get paid.

    (That was good news for my story; the harrasser wouldn't care about the publicity.)

    C.
     

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