#metoo.
Without minimizing those that truly have been sexually harassed or worse, this movement and others like it have had a serious effect on California businesses.
Even innocent conversation or innocent touching is now being claimed as sexual harassment and it is creating a windfall for unscrupulous lawyers and employees that are convinced some act that is not sexual harassment is actionable.
We have moved from legislating acts to legislating feelings and it is just not sustainable especially for small businesses that may not be able to fight costly claims whether true or not.
Don’t troll me.
Just to be clear, I am attempting to address acts that are not sexual harassment and I am not advocating for the removal of any laws, including sexual harassment laws that prevent actual abuse of employees.
Sexual harassment according to California is “unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature.”
Then if there is a lawsuit and it ends up in the hands of a jury, the jury will likely be given additional requirement to find sexual harassment called jury instructions.
Typical jury instructions for sexual harassment vary depending on the type of claimed sexual harassment but include language such as: “To establish a claim for sexual harassment plaintiff must prove that defendant engaged in conduct of a sexual nature; the conduct was pervasive or severe; the conduct was unwelcome; plaintiff was not able to easily end the relationship; and the conduct caused or will cause plaintiff harm.”
Prove it you say?
That seems like a very difficult standard for a plaintiff to prove that they were sexually harassed if it really didn’t happen, right?
Maybe in theory but in the real world it is much easier to lose a small fortune because of a sexual harassment claim (real or not).
First and foremost, juries are very plaintiff friendly in California and even though the burden of proof is on the plaintiff, believe me when I tell you that plaintiffs certainly have the home court advantage and employers have to win decisively to avoid a very large and punishing judgment.
Second, even if no sexual harassment ever occurred and the employer wins the case, they have likely spent a minimum of six figures to get all the way through trial just to prove their innocence.
Most of the time and unless there are other extenuating circumstances, it doesn’t make sense to go all the way through trial. If you win, you have only spent a couple hundred grand but if you lose, you have spent that and now you are stuck with a jury award and the legal fees California will make you pay to the lawyer that just sued you.
Unscrupulous attorneys know that all of the risk, win or lose, rest with the employer and they use this as leverage to get a settlement even if the employer has not sexually harassed anyone.
The most these lawyers have to lose is not receiving an easy settlement or a big jury award if the trial doesn’t go their way.
Even worse, employees do not lose anything at all and only stand to gain an easy settlement check or large jury award because they are receiving their legal services for free while an employer pays for their own defense and potentially much more.
It’s just not a good system.
At best it incentivizes employees to think that any conduct that offends them and could potentially be of a sexual nature to sue their employer.
At worst it incentivizes some bad actors with bar cards to shake down employers for settlement money because they know it is much riskier to fight then it is to settle.
My fear for California businesses is that even things that are clearly not sexual harassment will create problems because of this false and pervasive narrative in the public that sexual harassment is how someone felt about an interaction with a coworker or employer instead of actual sexual harassment.
Just recently, the chairman of Latham & Watkins resigned because of allegations of inappropriate conduct of a sexual nature. For those of you that do not know the law world, Latham & Watkins is one of the largest and most profitable law firm in the world grossing over $3billion dollars in 2017.
What interested me about this case is that the chairman of the firm was forced to resign because of allegations of inappropriate sexual messaging with someone that did not even work at the firm.
As of the writing of this article, the specific details of the communications have not been released but this is one piece of news that makes me realize no one is safe from sexual harassment allegations not even a well-respected captain of industry with an entire army of lawyers at his command.
What chance does any business have in California?
