Monday, July 21, 2014

When your plaintiff is a prostitute

Let’s say an employee sues your company for sexual harassment. And let’s say the allegations are bad—that the supervisor told the plaintiff he could save her job if she “f***ed” him, after which the supervisor raped her. Like I said, BAD. As an employer, you don’t have a lot of options, other than to hope you have insurance and to know that someone likely is going to write a big check.

Then, you receive a gift—knowledge that the employee might hold a side job as a prostitute. That information doesn’t excuse or defend the supervisor’s actions (which are beyond deplorable), but they do provide an opportunity to lessen the sting of the plaintiff’s damage claim.

Armed with this knowledge, you serve discovery seeking the nature and extent of the plaintiff’s activity as a prostitute/escort. Does the court allow you to take this discovery?

Here’s how one Ohio federal court recently ruled, in Hulec v. JH Bennett & Co.
Plaintiff Hulec requests lost wages and damages for emotional distress. Evidence about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages Plaintiff is entitled to should she win this case. … 
The Court allows limited discovery, through a reopened deposition or interrogatories, into these matters: (1) the general nature of the escort services Plaintiff has offered or performed in the past five years; (2) the frequency with which she has performed those services; (3) her income from those services; and (4) any medical or psychological treatment she received related either to her sexual assault or to other sexual encounters.
In cases like Hulec, victory is differently measured. In this case, a settlement that will not throw the employer into bankruptcy is a win. It is important to do everything you can to lessen the potential pool of damages available to the plaintiff. In this case, that mitigation came in the form of the plaintiff’s other “work.” Don’t give up hope, even in the fact of difficult cases. You pay us a lot of money to defend you. Let us earn that money with our creativity. As long as you are willing to keep an open mind to what it means to “win” a case, we might surprise you.