Christine, an RN and administrator of a skilled nursing facility, was greeted in the facility’s lobby by a gentleman in a black suit. The stranger inquired in a no-nonsense voice, “Are you Christine Jones?” Christine nodded, and asked how she could help him. He handed her a large envelope and stated, “Have a good day, ma’am,” then left without saying anything further. Puzzled, Christine tore open the envelope.

The document titled “Complaint” stated that Christine’s former employee, Leslie Washington, had filed a multiple-count lawsuit alleging sexual harassment, retaliatory termination, invasion of privacy, defamation of character, a whistleblower claim, breach of contract, and infliction of emotional distress. Christine’s eyes widened upon noting that the Complaint named two defendants: the nursing home and Christine. The “Summons” verified that Christine was being sued, and warned that she needed to respond to the Complaint within 20 days or risk defaulting in the action. Christine immediately faxed both documents to her company’s attorney. Later, he told her that, yes, Leslie was suing the nursing home and Christine individually for damages. The attorney directed Christine to send him a copy of Leslie’s personnel records and Christine’s documentation so that he could file something called a responsive pleading on Christine’s behalf.

Christine’s head pounded. What did this all mean? She had never been involved in a lawsuit before. Would she need to disclose that she was being sued in the loan application she was completing? If she lost, could Leslie go after Christine’s personal assets? Might her wages be attached? Could she lose her house?

Christine thought about Leslie. During the final weeks of Leslie’s employment as a nurse, her work performance slipped dramatically: She called off at the last minute, reported to work late, and had a terrible attitude problem. Christine engaged Leslie in several management coaching sessions. She referenced Leslie’s performance problems and spelled out what was expected from her in the future. Unfortunately, Leslie’s work habits did not improve. If anything, the situation deteriorated. Leslie started making careless errors with respect to patient care. That’s where Christine had to draw the line. After consulting with Human Resources, the decision to terminate Leslie was made. During the termination meeting, Christine pointed to Leslie’s performance shortcomings as the reason for the firing. That’s when Leslie flew into a rage.

“Stop playing games, Christine,” Leslie exclaimed. “We both know my days here were numbered when I complained to you about Dr. Anderson. Oh, you had it out for me ever since then.” Then she added sarcastically, “After all, who was I to take on the mighty medical director?” Before Christine had a chance to respond, Leslie abruptly stood up and proclaimed, “Not another word. I’ve had enough of this nonsense. But you haven’t heard the last of me — count on it!”

Christine finally knew what Leslie meant. The Complaint alleged that the termination occurred, not because of Leslie’s performance problems, but in retaliation for her complaints to Christine of sexual harassment. A few months before she was fired, Leslie had complained to Christine that Dr. Anderson, her very married ex-boyfriend, was sexually harassing her in an effort to win her affections back. Leslie went so far as to accuse Dr. Anderson of “cyber-harassment.” As evidence, she produced e-mails from him containing the filthiest language imaginable, some of which were accentuated with pornographic cartoons.

Leslie’s allegations led to a full-blown investigation by Human Resources, which included interviews with various witnesses as well as with Dr. Anderson himself. During the investigation, Human Resources uncovered e-mails that had been sent by Leslie to Dr. Anderson through the company’s computer system. In them, Leslie used language that was worse than what had appeared in Dr. Anderson’s e-mails. Also, the e-mail trail proved that the initial communication in the series had been generated by Leslie — not Dr. Anderson. Ultimately, Human Resources determined that the relationship was consensual, that Leslie was a ready and willing participant in the e-mail communications, and that her complaints of sexual harassment were unsubstantiated. Both parties were issued stern warnings for their improper use of work computers and were advised to keep their private lives out of the workplace.

The Complaint, however, told another story entirely. It referenced Human Resources’ investigation as a “cover-up” and the finding that Leslie had not been the victim of harassment as the product of a “kangaroo court.” It also described Leslie as a “whistle-blower” who had spoken out against Dr. Anderson’s illegal behavior to Christine, only to be terminated in retaliation for her brave choice to complain about a powerful man’s abuse. Christine hoped the documents that she was sending to the attorney would be enough to help defend herself and the company.

Sexual harassment and the nursing profession

Leslie’s Complaint alleged that she was victimized by sexual harassment. Nurses have complained that they have suffered on-the-job harassment from a variety of sources, including supervisors, doctors, and patients. In fact, an Associated Press article entitled “U.S. Nurses Regularly Face Sexual Harassment,” which was published on the Arizona Daily Star’s website in December 2005, suggests that sexual harassment may be an occupational hazard for nurses.¹ That article cited an American Nurses Association study, which found that some 60% of nurses surveyed stated that they were sexually harassed on the job.

In the case of Farpella-Crosby v. Horizon Health Care, a nurse sued her former employer, a nursing home, alleging hostile work environment sexual harassment by her former director of nursing in violation of Title VII, as well as intentional infliction of emotional distress.²

According to Farpella-Crosby, Jose Blanco, the director of nursing, frequently and repeatedly made inappropriate comments to her. He attributed the fact that Farpella-Crosby had seven children to a “proclivity to engage in sexual activity.” Farpella-Crosby complained that the DON commented about her sexual activity, that he “knew what she liked to do” because she had so many children, and that she “must not have a television.” Then, at a baby shower held at the facility for another employee, Blanco joked to the group that Farpella-Crosby didn’t know how to use condoms. She also complained that Blanco frequently questioned her about where she had been the night before, whether she had taken men home, and whether she had gotten any.

Farpella-Crosby testified that Blanco made inappropriate comments two to three times per week, and that these comments occurred so frequently that she could not possibly remember each instance. Farpella-Crosby also stated that when she asked him to stop making these comments, Blanco threatened her with her job.

Although Farpella-Crosby complained to Human Resources about Blanco, nothing was done to put a stop to it. She was told to “hang in there.” Ultimately, Farpella-Crosby filed suit, which led to a trial by jury. After the trial, the jury found for Farpella-Crosby, and the case was appealed. On review, the United States Circuit Court of Appeals for the Fifth Circuit upheld the jury verdict and award of compensatory damages in favor of Farpella-Crosby on her sexual harassment claim.

Unlike the situation involving Farpella-Crosby, a nurse’s alleged harasser does not need to be the nurse’s immediate supervisor, or even be employed by the same company, for liability to occur.

In the case of Dunn v. Wash. County Hospital,³ the alleged harasser was a doctor who was employed as an independent contractor by the defendant/hospital. The plaintiff in that case, Lisa Dunn, worked as a nurse for seven years at Washington County Hospital, a 59-bed facility located in Nashville, Illinois. During Dunn’s tenure with the hospital, Thomas J. Coy served as head of obstetric and emergency services. Dunn claimed that Coy made life miserable for her and other women on the staff. In 2000, another nurse, Jamie Jones, complained of on-the-job sexual harassment by Coy. This led to an investigation by the hospital’s attorney who looked into Jones’ complaint. Reportedly, at least six nurses, including Dunn, complained that Coy had harassed them. Several of these nurses also expressed concern that Coy might retaliate against them if he was to learn about their complaints.

Despite being assured that the complaining parties’ statements would remain confidential unless the matter proceeded to court, the chairman of the hospital’s executive committee turned over the hospital’s investigation report on Coy to Coy himself, who then allegedly threatened the nurses and put pressure upon them to retract their allegations. Coy allegedly told Dunn, “If you are not nice to me, there is no telling what could happen.” Dunn reported that Coy advised her that one day she would need a hysterectomy, which he would be happy to perform, because “paybacks are hell.” Dunn also alleged that during late April 2002, Coy pushed her against a cabinet in the coffee room and, while he had her pinned down, he tapped her on the cheek with a closed fist. Dunn complained to the hospital’s management about this assault and battery. She never returned to work again. Instead, she sent a letter of resignation, and sued the hospital in the U.S. District Court for the Southern District of Illinois for sexual harassment and retaliation.

The district court judge, however, granted summary judgment in favor of the defendant/hospital on the grounds that Coy was not an employee. This essentially ended Dunn’s lawsuit. Dunn, however, appealed this ruling to the U.S. Court of Appeals for the Seventh Circuit. On November 17, 2005, the Seventh Circuit issued its decision, finding that the district judge erred in determining that the hospital could not be held derivatively liable for Coy’s conduct, thereby allowing Dunn’s sexual harassment claim against the hospital to proceed.

In doing so, the Court highlighted an employer’s responsibility to a nurse where the issue of sexual harassment is concerned. The Seventh Circuit found that because liability “is direct rather than derivative, it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter, a customer.” The Court explained that the “ability to ‘control’ the actor,” here Coy, “plays no role.”

The Court then stated that “Employees are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use [of] (or failure to use) these options that makes an employer responsible and in this respect, independent contractors are no different from employees. Indeed, it makes no difference whether the actor is human.”

Here, the Seventh Circuit used an interesting example to explain a health care organization’s potential liability to its employees based on the actions of patients.

The Court explained, “Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.”

Then, the Court applied this reasoning to the situation involving Dunn and Coy. “Just so with an offending independent contractor, as Coy is alleged to be, the employer’s responsibility is to provide its employees with nondiscriminatory working conditions. The genesis of inequality matters not; what does matter is how the employer handles the problem.⁴

In addition to supervisors and doctors, nurses have also complained about harassment from patients.

According to one source, improper behavior from patients directed at nurses is widespread and can run the gamut from verbal harassment to unwanted physical touching. Although some male nurses have complained of sexual harassment, the typical scenario involves male patients and female nurses.¹

In January 2006, a nurse brought a sexual harassment lawsuit against Aaron Spelling and his wife, Candy, seeking at least $25,000 in damages for sexual harassment and discrimination, battery, wrongful termination, and other grounds.⁵ Spelling, the celebrated television producer, has had a number of hits over the years, including Charlie’s Angels, Fantasy Island, Dynasty, Beverly Hills, 90210, Melrose Place, 7th Heaven, and Charmed. In the lawsuit, Charlene Richards alleges that Spelling behaved inappropriately and made sexual advances toward her while she was employed as a home care nurse.⁵

Sexual harassment and Title VII

Sexual harassment is a form of sex discrimination that constitutes an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964.⁶ In addition to this federal statute, many states including Pennsylvania, New York, New Jersey, Florida, and California, have also passed laws prohibiting sexual harassment subsequent to Title VII’s enactment. Most of these state statutes are modeled after Title VII. However, in some cases, a particular state or local statute may provide even greater protection against sexual harassment than the federal law does.

In the state of California, sexual harassment in employment and housing is prohibited under the provisions of the Fair Employment and Housing Act (FEHA), specifically Government Code section 12940. Additionally, supervisory and management personnel may be found subject to personal liability under the FEHA if they engage in harassment or knowingly fail to take action to address harassment.⁷ Supervisors may also be held personally liable for retaliatory actions against employees under this state statute.⁸ Suppose, for instance, that a nurse complains to a nursing director of sexual harassment from a coworker, a doctor, or a patient. Instead of taking steps to protect that employee, the supervisor decides to do nothing about it, and the behavior is allowed to continue. Further, the supervisor decides that the employee is a troublemaker for complaining about the sexual harassment, and decides to terminate the nurse because of this. In addition to creating legal exposure for the employer, the nursing director runs the risk of potentially being held personally liable for (1) knowingly failing to take actions to address the sexual harassment, and (2) retaliating against the employee for speaking out about the harassment. Thus, where the issue of sexual harassment is concerned, a plaintiff could bring a sexual harassment lawsuit under a state, local, or federal law and could name an individual supervisor as a defendant in the lawsuit. Accordingly, it is important for a supervisor to have working knowledge of not only the federal laws that protect the rights of employees, but applicable state and local laws as well.

The EEOC

The U.S. Equal Employment Opportunity Commission (EEOC) is the administrative governmental agency that interprets and enforces Title VII. The EEOC was established in 1965 and was given statutory authority by the United States Congress to enforce Title VII, and subsequently other employment law statutes, such as the Americans with Disabilities Act. During Fiscal Year (FY) 2004, the EEOC received 13,136 charges of sexual harassment. Some 15.1% of those charges were filed by males. Additionally, the EEOC resolved 13,786 sexual harassment charges in FY 2003 and recovered $37.1 million in monetary benefits for charging parties and other aggrieved individuals, excluding monetary benefits obtained through the litigation process.⁹ A Title VII claimant can be an applicant, employee, or ex-employee. According to the EEOC, sexual harassment can manifest in various ways.

Despite the age-old stereotype that suggests only a male harasser can abuse a female victim, in actuality, males or females can be the harasser as well as the target of harassment. Further, the victim does not have to be a person of the opposite sex. In one case, a large movie theatre chain operating 312 theatres in 36 states agreed to pay $765,000 to resolve a sexual harassment lawsuit, which charged that a group of young men were sexually harassed by their male supervisor, a convicted sex offender, at a theater located in Raleigh, N.C.¹⁰

In all situations, however, the sexual conduct must be unwelcome by the victim. That is, it cannot be the product of consensual behavior. It is helpful for the victim to inform the harasser directly that the conduct is unwelcome and that it must stop. The victim should utilize any employer complaint mechanism or grievance system available.⁹ For example, suppose a nurse continues to receive unwanted e-mails of a sexual nature from a coworker, even after demanding that these e-mails stop. If the employer has established an antiharassment policy directing victims of harassment to file complaints with a named company official, such as the Director of Human Resources, then the nurse should seek assistance by reporting the conduct to that person. Although the nurse may feel apprehensive about doing this, in many cases, the grievance procedure can be highly effective in putting a stop to the harassment.

What happens, however, if an employee feels that the company failed to address the harassment, and decides to file a complaint with the EEOC? Once the EEOC has received a complaint from the victim of harassment, known as the “charging party,” it will submit a “Notice of Charge of Discrimination” to the employer and ask for certain specific information relating to the charge. The EEOC attempts to conciliate a voluntary resolution between the parties in an effort to avoid litigation. In the event that the parties fail to voluntarily conciliate the matter, the complainant may ask for a “Right to Sue” notice, which allows him or her to file a lawsuit in court either through the assistance of private counsel or pro se (without an attorney). In certain select instances, including those that involve egregious cases of discrimination, the EEOC’s legal staff may litigate the matter on behalf of the charging party.

According to the EEOC, “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.”⁹ There are two types of sexual harassment: quid pro quo and hostile environment. In both cases, the employer is potentially liable for acts of sexual harassment against its employees. Quid pro quo sexual harassment occurs when a supervisor, manager, or other agent within the organization who has been conferred the power to make management decisions on behalf of the company abuses that power. An example of quid pro quo sexual harassment includes the promise of a raise or promotion by a supervisor in exchange for a sexual favor.

Hostile environment is unwelcome sexual conduct, which has the purpose or effect of creating an intimidating, hostile, or offensive working environment, even if it leads to no tangible or economic consequence, such as a raise or promotion. The actions of supervisors, executives, coworkers, and even customers, vendors, and other visitors in the workplace can create an inappropriately hostile work environment.⁹

Cyber-sexual harassment

Improper workplace-based conduct that could potentially lead to a sexual harassment claim is not limited to face-to-face conduct. In the lawsuit that has been brought against Christine, Leslie, the plaintiff, has alleged that Dr. Anderson sexually harassed her over the company’s Internet system.

Computers, if used improperly, can also be used as a tool for sexual harassment. Online or cyber-sexual harassment can even be worse than face-to-face harassment because of the potential anonymity of the sender.

Cyber-sexual harassment can include situations whereby a sender transmits sexual messages via cyber-space, which are deemed intimidating, hostile, or offensive by the recipient. An example of actionable cyber-sexual harassment could involve the scanning and distribution of sexually explicit photos of women over a company’s Internet system. A potential Title VII exposure could manifest if just one employee finds the cyber-photos to be offensive, despite the fact that 99 others actually enjoy receiving them.

In the case of Munroe v. Compaq Computer Corp.,¹¹ the plaintiff alleged that a coworker had engaged in a series of sexually offensive behaviors, including sending her at least three sexually suggestive e-mails. She complained to her supervisor, who laughed when he read the offensive e-mails, deleted them from her computer system, and began sexually harassing her himself. The employee complained to Human Resources about both the coworker and the supervisor’s harassment, resigned from the position, and decided to return to it, but still proceeded to file her lawsuit.

Offensive e-mails can cover a broad spectrum of behaviors and include messages that insult the reader, relate sexually degrading jokes, include pornographic cartoons or photographs, or attempt to induce the recipient to engage in a relationship with the sender. They may even convey threats or rise to the level of stalking, thereby crossing the line into criminal conduct.

On January 5, 2006, during a ceremony in the Oval Office, President George W. Bush signed the Violence Against Women and Department of Justice Reauthorization Act of 2005, and it became Public Law No. 109-162. This law includes a clause, which addresses the growing problem of “cyber-stalking.” It amends existing telephone harassment laws and extends them to cover Internet-based activities. The law allows for a two-year maximum jail sentence for harassers who utilize the Web “without disclosing [their] identity and with intent to annoy.”¹²

Employee rights

Many employees in the contemporary workplace have access to information technology to perform their jobs more effectively. Although computers have been powerful productivity-enhancers, conflicts can arise between employers and employees regarding computer usage and privacy rights. On one hand, employees may believe they enjoy absolute privacy when using e-mail and the Internet at work. On the other hand, the employers may feel that they may freely and without any limits whatsoever monitor employees who use company-provided computer technology to venture out into cyber-space and send personal e-mail messages. Whose rights prevail?

Can an employer track where an employee has been in cyber-space and/or read an employee’s personal e-mail messages? In most cases, yes. This is because if an e-mail system is owned and used by the company for purposes of conducting company business, then the employer has the right to review its contents.

In the case of Smyth v. The Pillsbury Company,¹³ the U.S. District Court for the Eastern District of Pennsylvania found that any reasonable expectation of privacy was lost where an ex-employee communicated alleged unprofessional comments to a second person over an e-mail system, which was utilized by the entire company. There, the plaintiff alleged that his termination violated public policy, which precluded an employer from terminating an employee in violation of the employee’s right to privacy as embodied in Pennsylvania common law. The Court, however, disagreed.

The Smyth Court explained that “Significantly, the defendant did not require plaintiff, as in the case of a urinalysis or personal property search, to disclose any personal information about himself. Rather, the plaintiff voluntarily communicated the alleged unprofessional comments over the company e-mail system. We find no privacy interests in such communications.” The Court explained that “…even if we found that an employee had a reasonable expectation of privacy in the contents of his e-mail communications over the company e-mail system, we do not find that a reasonable person would consider the defendant’s interception of these communications to be a substantial and highly offensive invasion of his privacy. Again, we note that by intercepting such communications, the company is not, as in the case of a urinalysis or personal property search, requiring the employee to disclose any personal information about himself or invading the employee’s person or personal effects. Moreover, the company’s interest in preventing inappropriate and unprofessional comments or even illegal activity over its e-mail system outweighs any privacy interest the employee may have in those comments. The Smyth Court also noted that the “plaintiff voluntarily communicated the alleged unprofessional comments over the company e-mail system. We find no privacy interests in such communications.”

Although an employee may be upset to learn that he or she harbors an artificially high right to privacy regarding computer usage, legitimate business reasons would induce an employer to monitor an employee’s Internet usage to some extent. Employee productivity is negatively impacted when employees spend significant amounts of time surfing the Web for personal reasons on company time, which also impairs efficient operation of the organization’s computer system. Additionally, employees who use an organization’s computer technology to access pornographic websites create the potential for sexual harassment litigation. Many firms take measures to ensure employees understand that computer activity may be monitored by distributing a policy that states computers are to be used for business purposes only; and that the company tracks Internet usage.

Stopping cyber-harassment

An employee who has been subjected to on-the-job sexual harassment that he or she finds hostile, offensive, or intimidating should take measures to discourage the behavior from continuing, irrespective of whether it has occurred face-to-face or over the Internet. First, the recipient should inform the sender in clear, unambiguous terms that he or she wants the e-mail to immediately stop and not to ever send this type of material to him or her again. If the harasser is a person with whom the recipient had a previous relationship that has since ended, the recipient should also advise the sender that he or she wants to maintain a professional relationship only.

If that doesn’t put an end to the harassment, the recipient of these unwanted e-mails may then want to warn the sender that if the behavior doesn’t stop, it will be reported to a supervisor. If, however, the employee feels threatened by the e-mails, a warning is not necessary. In such situations, the employee should immediately seek management assistance. Depending on the particular circumstances, police intervention may also be warranted. As difficult as it may be for an employee to report cyber-harassment, he or she should bear in mind that many organizations have instituted proper channels to receive and deal with these complaints to protect their employees as well as avoid a costly sexual harassment lawsuit.

The situation is particularly tricky when a supervisor is harassing an employee. The U.S. Supreme Court dealt with such a “Catch-22” situation in Burlington Industries v. Ellerth.¹⁴ In the written opinion for that 1998 case, the Supreme Court recommended that a company institute some sort of alternative mechanism that requires employees to report instances of sexual harassment to the supervisor’s superior in the event that the supervisor is the harasser.

If an immediate supervisor is harassing an employee, the employee should refer to an employee handbook or other written policy outlining the organization’s sexual harassment grievance procedure for information about how to proceed to submit a complaint in this situation. Many companies will have something in writing advising employees what to do in the event that the person doing the harassment happens to be that individual’s supervisor. Where the employer lacks an applicable written policy or grievance procedure, the employee should direct the complaint to a human resources manager, the supervisor’s boss, in-house legal counsel, or other company official. Being prepared for this meeting in advance will help minimize any feelings of apprehension that the employee may feel. For example, the employee can document all instances of harassment on a legal pad and, if applicable, bring examples of any e-mails or other examples of harassing behavior to the meeting.

Employees are sometimes reluctant to complain about sexual harassment because they fear retaliation. However, retaliating against an employee who speaks out against harassment is illegal. In one case, a class of farm workers who were allegedly sexually harassed and then retaliated against for complaining about the harassment received a $1,050,000 settlement from the company. As part of the Consent Decree, the company also agreed to reinstate former workers who were allegedly wrongfully terminated, hire an outside consultant to handle future complaints of harassment, implement antidiscrimination policies and procedures, provide EEO training for management and employees, establish antidiscrimination and retaliation complaint procedures, institute hiring goals for positions that were formerly not open to women, and report to the EEOC to show compliance with the Consent Decree.¹⁵

There is a possibility that an employee can lose on a sexual harassment claim, but win a judgment on a claim of retaliation for filing that claim. This is because Title VII protects employees who file sexual harassment complaints, who participate in an investigation associated with a complaint of sexual harassment, or who testify in related proceedings against retaliatory actions. Generally, state laws modeled after Title VII offer similar protections.

Whistleblower actions

The Complaint also asserts that Leslie was a “whistleblower,” who, after complaining of unlawful sexual harassment, was the recipient of a retaliatory action by Christine. In other words, Leslie claims that the real reason she was fired was not due to poor performance or misconduct on the job, but because she was a whistleblower who objected to Dr. Anderson’s harassment of her, spoke out against this, and was terminated for her efforts.

Various states, Florida for example,¹⁶ have enacted whistleblower statutes to protect employees from retaliation for speaking out against illegal activity in the workplace. Michael Underwood, the plaintiff in Underwood vs. Rhone-Poulenc Rorer Pharmaceuticals Inc.,¹⁷ brought two whistleblower claims in a Florida state court against his former employer, the second of which alleged retaliation when he was fired after complaining to his boss about sexual harassment. Underwood asserted that said conduct violated sections 760.101(1)(a) and (7) of Florida’s Civil Rights Act.

The lower court, however, granted summary judgment in favor of the defendant, which effectively ended the case. Underwood appealed. On review, the Florida appellate court cited the federal case of Burlington Industries Inc. v. Ellerth¹⁴ and stated that sexual harassment is actionable against an employer as a civil rights violation where it results in a “tangible employment action,” such as “firing.” The Underwood Court concluded that a tangible employment action is conduct, which constitutes a violation of law, which is prohibited by Florida’s Whistleblower Act. The Underwood Court observed a substantial issue of fact shown by the record regarding whether the plaintiff was fired because of poor performance or because of improper discrimination. Because of this, summary judgment was not proper, and the case was reversed and remanded to the lower court.

What to do when a supervisor, manager, or coworker is sued individually for workplace conduct

Supervisors and managers can be held individually liable for decisions that they make in the workplace. In certain jurisdictions, coworkers may also be held personally liable for harassment or retaliation against other coworkers.¹⁸

Leslie has sued Christine in her individual capacity. Christine was notified that a lawsuit had been filed against her when the stranger in the black suit, a “process server,” presented her with the Summons and Complaint. In legal terms, “service of process” was effectuated upon Christine at that time. The law in the jurisdiction where the lawsuit is filed will establish the timeframe in which a defendant must respond to the Complaint. Typically, this will be within 20 or 30 days after service of process is effectuated. Thus, upon being served with a lawsuit, one should seek legal advice without delay.

Suppose, in her case, Christine chose to ignore the Summons and Complaint instead of immediately consulting with an attorney. She would have put herself in jeopardy of having a “default judgment” entered against her. Like a sports team that wins because the other side failed to show up when the game was scheduled to begin, the plaintiff essentially wins by default because the defendant didn’t show up in the court proceeding, that is, failed to respond to the allegations in the Complaint within a timeframe established by law.

The Summons that was served on Christine notified her that she needed to respond to the Complaint within 20 days. If Christine failed to file a responsive pleading to the Complaint, such as an “Answer and Affirmative Defenses” or “Motion to Dismiss,” by this deadline, Leslie, as the plaintiff, could file paperwork with the court requesting that a default be entered against Christine. In situations where the Complaint alleges that a specific amount of money is owed, such as in lawsuits involving breach of contract, then the clerk of the court where the lawsuit is filed may proceed in entering a default judgment for this amount alleged against Christine. In her case, however, Leslie might need to prove her damages, such as the amount of lost wages she would have earned but did not because of the unlawful termination that was alleged in the Complaint. A court hearing would be required, in which a judge would hear evidence of Leslie’s alleged damages and make a determination of the specific terms of the default judgment as to the issue of damages.¹⁹

Where a plaintiff receives a favorable default and final judgment from the court, he or she may then take efforts to collect on the judgment from the defendant. The plaintiff may elect to record the default and final judgment in the public records of the applicable jurisdiction.

The remedies available to the victorious plaintiff in employment discrimination cases can include back pay, job reinstatement, front pay, or other remedies that will make the individual “whole,” that is, return him or her to the condition that he or she would have been in but for the discrimination. The defendant may also be ordered to pay the plaintiff’s attorney fees, expert witness fees, and court costs.

The plaintiff could receive compensatory and punitive damages. Damages are available to compensate the plaintiff for actual money losses, for future money losses, and for mental anguish or inconvenience suffered as a result of the discrimination. Punitive damages may be awarded in situations where the plaintiff shows that the defendant acted with malice or reckless indifference.²⁰ Punitive damages are intended to punish the defendant and to discourage the defendant from continuing to engage in actions that demonstrate malice or reckless indifference.

Thus, anyone who has been named as a Defendant in litigation stemming from a workplace dispute should never ignore the lawsuit. Rather, it is critically important that he or she immediately consult with an attorney to ensure that his or her legal rights are protected.

Cases involving sexual harassment, discrimination, and wrongful discharge can be very expensive, even if the matter never makes it to a jury. For example, one company, Infosys Technologies Ltd., reached an out-of-court settlement in a sexual harassment/wrongful termination lawsuit that had been lodged against the company’s former board member, Phaneesh Murthy, by Murthy’s executive secretary. That case settled for $3 million.²¹