Monday, October 10, 2022

A court was not having it when lawyers tried to victim-blame a sexual harassment plaintiff

One of our primary roles as attorneys is to protect our clients from their worse instincts. 

"Can I fire the employee who just filed an EEOC complaint or who's trying to form a union?" That's a really bad idea. 

"How do I erase the server with the smoking gun emails?" You don't. 

"If I ignore the harassment it will go away, right?" Umm, wrong.

"Let's file a motion to require a sexual harassment plaintiff to submit to a psychosexual examination?" 

In Carbajal v. Hayes Management Services, a federal court recently decided the propriety of just such a motion (very much) in the employee's favor. 

A psychosexual examination (in case you're as unaware as I was) is an evaluation that specifically addresses sexual development, sexual deviancy, sexual history, and risk of reoffense as part of a comprehensive evaluation of a sexual offender. In Carbajal, the defendant sought the examination to determine whether the plaintiff subjectively perceived the work environment as sexually offensive, specifically in reference to some of her alleged "friendly" behavior towards her accused harasser.

The court wasn't having any of it.
Hayes Management asks the Court to order Carbajal – a plaintiff in a civil case alleging she is a victim of sexual harassment – to undergo this highly intrusive and personal evaluation intended to ferret out a convicted sex offender's future dangerousness. Hayes Management's request not only demonstrates a gross misapprehension of [the] law … but borders on being abusive and harassing. …

Hayes Management's argument that it requires a psychosexual evaluation of Carbajal, as a means of probing into her sexual attitudes and private sexual behavior, to determine the subjective offensiveness of Chris Hayes' conduct, grossly misconstrues what constitutes unwelcome sexual harassment. Carbajal's sexual attitudes and sexual behaviors in her private life in a consensual setting do not waive "her legal protections against unwelcome harassment." …

To allow Hayes Management to subject Carbajal to a psychosexual evaluation to obtain evidence regarding her private sexual behavior or attitudes would not only undermine Title VII's goal of ridding the work place of any kind of unwelcome sexual harassment but would also undermine the purpose of Rule 412, which is to safeguard "the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the factfinding process."

The court also granted Carbajal her attorneys' fees in having to respond to the motion to compel the psychosexual exam. 

As this case illustrates, just because you can file a motion doesn't mean you should. Your job is to find your company an attorney who will protect you from making these types of errors, not one who will let you engage in expensive follies.