Two employment attorneys discuss workplace discrimination lawyering

Wisconsin attorneys Peter Fox ’01 and Rebecca Salawdeh ’96 have spent their careers representing plaintiffs in workplace disputes. In a presentation to law students, they shared a few lessons on litigating sexual harassment cases.

Harassment is hard to prove.

Like most states, Wisconsin is an ‘at-will’ employment state. That gives workers the right to quit their jobs without notice, but it also means bosses can fire workers at their whim. According to Fox, “Your employer can give any reason for firing you, whether you punched in five minutes late or they don’t like the color of your shirt. Or they can give you no reason at all.”

What employers can’t do is discriminate against an employee based on sex. Thanks to Title VII of the Civil Rights Act of 1964, sexual harassment is illegal in all workplaces—and in every state. But, cautions Salawdeh, “Illegal harassment is hard to prove, and there’s no law against bad workplace behavior.”

Case selection is key.

“Case selection, case selection, case selection—I can’t stress the importance enough,” says Salawdeh. “I prefer to take two hours conducting a detailed intake to rushing through an interview and accepting a client, only to learn six months down the road that I’ve spent a lot of time on a case that likely won’t move forward.”

While interviewing a potential client, she’s mindful of what the courts count as actionable. For example, she’ll try to determine whether the offense was a clear-cut case of harassment, or what some courts have called ‘minor incidents.’ Was the alleged harassment based on the employee’s sex, as opposed to just workplace incivility? Did the person report the offense to management, or will the courts say the plaintiff didn’t try hard enough to bring it to the attention of his or her superiors? Are there key witnesses willing to support the plaintiff’s claim? She also recommends paying attention to red flags: “Do I like the person? Do they come off as honest and credible? Will a judge like them and be sympathetic to their claim?”

Bad cases make bad laws.

Settling out of court often makes the most sense for both parties, but employees may choose to file suit if they can’t agree with employers on the terms. Still, a plaintiff may not see his or her day in court.

Many harassment lawsuits are dismissed on summary judgment, meaning they never make it to trial. The interpretation of Title VII—and what constitutes a hostile work environment—has fallen to federal courts, and case law has set a high standard for illegal harassment. Its effects last for decades, because judges cite prior rulings as legal precedent for dismissals.

That’s why Fox believes he has an ethical obligation to turn down cases that wouldn’t be airtight in court. “Bad cases result in rulings that can create hurdles for good cases later on,” he says.

Adds Salawdeh, “We have a tendency to want to help everyone who has been wronged, but a bad case will suck a lawyer’s energy away from a good, actionable case.”

Location matters, too.

Once Salawdeh and Fox determine that a formal legal action is required, they can help clients seek relief under state or federal statutes. However, the kinds of damages allowed—and the amount victims can seek—varies state by state. That’s why they most often file workplace discrimination cases in federal court under federal law, where compensatory and punitive damages are allowed when the employer has more than fifteen employees. Remedies under the Wisconsin Fair Employment Act are limited to lost wages and benefits and attorneys’ fees and costs. “If my client was harassed but not fired or demoted, it only makes sense to bring the case before federal court. Under Wisconsin law, my client will get nothing,” explains Salawdeh.

Other states offer workers more legal protection against sexual misconduct in the workplace, she says. “I have colleagues in California who rarely go into federal court, because they have better state laws. I also understand that Massachusetts and New Jersey have stronger state laws as do some cities, such as New York City.”