The Nation got fooled, which is unfortunate.
The writer of this article, Rafia Zakaria, misleads, in my view, about the meaning of Federal Rules of Civil Procedure 12(b)(6) motions and motions for summary judgment. If a woman plaintiff alleges in a civil complaint that she was harassed, and states basic facts to support it, even if those facts are totally uncorroborated by any witnesses, a motion brought pursuant to 12(b)(6) is to be denied. The 12(b)(6) motion assumes the truth of the pleading, and it is up to the defendants (harasser and company) to prove, even if all of the allegations in the complaint are true, there can be no liability for one reason or another. If a lawyer for the defendants cannot prove a compliant is invalid on the face of the complaint, the defendants' lawyer is wasting money and looking bad to the judge to file a 12(b)(6) motion. The same with a motion for summary judgment under Fed Rule 56, which are expensive for both sides to prepare. If the motion for summary judgment is denied, a plaintiff and her lawyer are often emboldened to increase their settlement demand--and with it, as noted below, the demand for the defendant to pay for the plaintiff's lawyer's attorneys fees and costs. Contrary to the tenor of the article, it does not matter whether nobody else agrees with or corroborates the plaintiff woman who is claiming harassment. The case will be able to go in front of a jury for trial, if the case does not otherwise settle. The case, without corroboration, may seem like a weak one, but it will, if the plaintiff's lawyer wants to, get in front of a jury, and that is also expensive for the defendant, very expensive, which makes a defendant think about settlement more and more.
The law used to say that it took two or more incidents to form a pattern for sexual harassment, but even that was watered down if there was a "hostile environment," which frankly can be easily manipulated by a plaintiff who may otherwise have no credibility-and please know, courts are not allowed to look at a plaintiff's credibility when ruling on a summary judgment motion and certainly not, at the beginning of a case, a 12(b)(6) motion.
Left out of the article is something that really drives settlements in cases, even when there is little reason to believe the plaintiff: One sided attorneys' fees awards. See for example 42 USC 1988. What I mean by one-sided is that the plaintiff's lawyers get all or most of their attorneys' fees paid by the defendants--yes, by the defendants--at the end of the trial if the plaintiff recovers even $1 (There could be a limit on the attorneys' fees recovery if the plaintiff recovers such a small amount or an amount lower than in a formal statutory offer of taking judgment that a defendant would formally agree to pay--but even then, the plaintiffs' attorneys' fees recovery could easily be high five figures and low to mid six figures). Worse, there is something called a "lodestar" or multiplier effect that may be used. The multiplier can really be a problem for defendants faced with such suits.
Worse, judges, who often come from big time firms or DA offices, have no idea and do not care about the inflated plaintiff attorney bills that are literally made up out of thin air, $600 or $700 an hour they will claim--even if on contingency agreements where there is no hourly rate stated nor would there be any rate stated--while the defendants' lawyers are charging say $300 an hour at most, and often less. So if the writer of this article thinks the defense firm will file motions that won't win, and that only increase the plaintiff's attorneys' demands for money for themselves, the writer, Rafia Zakaria, has a very different experience than mine.
Oh, and if the defense side gets a defense verdict, you may think, Oh the defendants recover their attorneys' fees from the plaintiff, right? Wrong. The only way a defendant recovers attorneys' fees against the plaintiff is if there is substantial proof of a frivolous complaint, which is more rare than seeing one of those big cats that are nearly extinct in China. It is almost a unicorn, though one may find a few cases over the past thirty years of jurisprudence. But trust me, it is really rare in practice. The best I ever won for a defendant who won a verdict in a sex discrimination case against a woman plaintiff was $40,000 in costs (expert witness fees, costs of filing suit, costs to pay court reporters for depositions and at trial, and payment of jury fees; those are "costs" separate from attorneys' fees), and he did put a lien on the woman's house. But again, that is really, really rare.
At the end, all the writer of The Nation article seems to want--certainly not a change in the one-sided attorneys' fees provisions*--is strict liability for managers who sexually harass. That is the law for most civilized states already, I have to say. We (damn, can't really say "we" anymore...) have lived in CA with that for over 20 years. I am a bit surprised to think it is not the law in some jurisdiction in the US. It is certainly the law from what I currently understand in New Mexico...
Oh well. The Nation got fooled by a plaintiff side lawyer who wrote an article using a lot of progressive sounding language, but did not do a good job of explaining how the legal process and system actually works in these workplace cases. Still, we may wonder, if this is the law, why is all this stuff coming out of Hollywood and DC just now?
The answer is pretty straightforward: Corporate America has long had to live under the MeToo movement and has been suitably punished when guys act out. However, in Hollywood and in DC, the drive for power is so competitive and so strong, women either went along or put up with such behavior to get ahead, and the guys at the higher levels continued to think they were impervious to these laws. It took a cultural change, and this is where I agree with Catherine McKinnon and The Nation article writer. Where there also continues to be abuse is in small businesses where women often do not know they really do have rights, and if there is anything stopping them once they know their rights, it is the sad fact that plaintiffs' lawyers--who are, after all, in business--find the cases are not worth much on the lost earnings side.
Still, most of corporate America has long learned sexual harassment, discrimination, and whistle blower cases are very expensive, embarrassing to the corporation, and need to be avoided at all times if possible. They have a team of Human Resources professionals who tend to be pretty pushy on the execs and managers to stay in line. It does not mean nothing occurs, or little slights don't occur, but if someone pushes back, it can mean a hard time and expensive proposition for the company.**
* I get why, in the end, there are one-sided fee provisions in the anti-harassment and anti-discrimination statutes. If there were two way attorney fee provisions, the companies and their lawyers would overwhelm and threaten plaintiffs because of the inequity of the power of companies over individuals. What I have objected to, in a lonely battle, is the way judges inflate the fees for plaintiffs' lawyers instead of trying to compare what defense side lawyers are being paid, as different areas of law have different hourly rates, with patent/trademark lawyers tending to charge the most, for example (I have seen $1,000 an hour for such lawyers). That is a losing battle, however, as we have had thirty plus years of jurisprudence on this and I know judges who have tried to stem the tide, only to be reversed on appeal where plaintiffs' side lawyers recover sometimes millions of dollars in fees in hotly contested cases. It is why it is, again, dumb for defense lawyers to file motions that won't win.
** I often "joke" with corporate execs and say, the lawsuit is the cost of them not having a union. If there was a union, there would be an internal grievance procedure that would seem more fair to most employees than an H.R. investigation, and it is hardly any cost to the company to follow the union grievance procedure, and chances are, the truth will come out early and the company can deal with the situation one way or the other. Also, employees in a union environment are far more likely willing to talk and back the employee if they believe her (most often her in a sexual harassment case). But we know why bosses will take the occasional lawsuit: unions would mean sharing overall economic power. So, corporate execs, this Bud's for you, as the saying goes.
** I often "joke" with corporate execs and say, the lawsuit is the cost of them not having a union. If there was a union, there would be an internal grievance procedure that would seem more fair to most employees than an H.R. investigation, and it is hardly any cost to the company to follow the union grievance procedure, and chances are, the truth will come out early and the company can deal with the situation one way or the other. Also, employees in a union environment are far more likely willing to talk and back the employee if they believe her (most often her in a sexual harassment case). But we know why bosses will take the occasional lawsuit: unions would mean sharing overall economic power. So, corporate execs, this Bud's for you, as the saying goes.
