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A new framework for sexual harassment cases: using social science data to prove emotional distress can protect clients from invasive forensic evaluations and convince jurors to award adequate compensation.

Article Excerpt
Sexual harassment causes tremendous damage. Organizations suffer decreased productivity, increased turnover, and risk to their public image, whereas employees suffer harm more directly and personally.

In addition to job consequences, victims of sexual harassment experience anxiety, depression, and damage to their self-esteem, and many develop a full range of psychological symptoms and disorders. (1) Such reactions are neither uncommon nor triggered only by obviously severe episodes. The psychological effects of a sexually hostile workplace climate "kick in" at a relatively low level, giving rise to emotional distress, stress-related health problems, and susceptibility to physical illness. (2)

A major task for trial lawyers is to persuade judges and juries that such injuries are real and deserve to be compensated. To accomplish this, attorneys typically enlist a psychologist or psychiatrist to examine the plaintiff and render an opinion concerning the nature and extent of any psychological injuries. Although by now a ubiquitous fixture of sexual harassment litigation, these examinations may not be the best way to educate jurors about the plaintiff's harm. Mental examinations are not only frequently unnecessary, but they are also sometimes harmful to the plaintiff and her case.

Claimants need not suffer severe psychological harm to prevail in sexual harassment litigation. As Justice Sandra Day O'Connor observed in Harris v. Forklift Systems, Inc., "Title VII comes into play before the harassing conduct leads to a nervous breakdown." (3) Although she was speaking to liability, not damages, nothing in the law requires that the plaintiff suffer a diagnosable emotional disorder, be prescribed medication, or seek psychological treatment to be eligible for emotional distress damages. Emotional distress also comes into play before the plaintiff has a nervous breakdown.

No expert is needed to "prove" that a plaintiff who becomes moody, lethargic, and tearful is distressed; that a woman who turns tense and withdrawn is stressed; or that one who cannot sleep and becomes nervous and timid is anxious and possibly fearful. Generally, the plaintiff is her own best expert on such matters. Buttressed by testimony from her spouse or family members, as well as friends and coworkers who knew her before and after the alleged harassment, the plaintiff is in the best position to testify about her own experience.

A psychological evaluation may be unnecessary when such testimony is available, because mental anguish--in the traditional sense of anxiety, depression, grief, and/or psychosomatic physical symptoms--is a normal, expected reaction to being sexually harassed. It is an unusual woman who would not be distressed by obscene and degrading comments about her body, persistent sexual approaches from men in whom she has no interest, or attempts to coerce her into sexual cooperation.

Mental examinations literally add insult to injury. The indignities inflicted on plaintiffs in the name of proving damages are too well known to need repeating here. (4) Revealing painful and irrelevant personal history; previous experiences of sexual abuse or mistreatment; and medical, psychotherapeutic, and even gynecological records too often turn discovery in these cases into a scarification ritual for the plaintiff. (5)

Attorneys can often avoid inflicting this experience on their clients by forgoing traditional mental health testimony. Although many defendants contend that a plaintiff by definition opens her mental condition to question whenever she seeks pain and suffering damages under the Civil Rights Act of 1991, not all courts have agreed. Under Title VII, emotional distress need not be "severe"; rather, Title VII plaintiffs (as well as those involved in state fair-employment actions) can claim "garden variety" distress. (6) The circuits are split concerning whether such claims place the plaintiff's mental condition in controversy, and not all judges will automatically exercise Federal Rule of Civil Procedure 35, which allows the court to order a physical or mental examination. (7)

It is, however, unanimously accepted that a plaintiff places her mental condition in controversy when she calls her own treating or forensic expert to testify about the nature and extent of mental harm. By electing to forgo such testimony, the attorney may protect the client from one of the most intrusive and stressful aspects of litigation. The lawyer must then select an alternate method to convince a jury that emotional distress damages are warranted.

Alternatives to mental health examination

Retaining an expert who can describe the body of social science data on sexually harassing behavior in organizations--either in general or in the specific case--is an underutilized alternative to the traditional mental health examination. This so-called social framework evidence is a well-known aspect of expert testimony in both federal and state litigation. (8)

Social framework reports typically describe the research on sexually harassing behavior in the workplace, including frequency, causes, and psychological consequences; ways victims respond to harassment; conditions within the organization that can facilitate...

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