Sexual harassment

An Ohio Appellate Court recently criticized a trial court for allowing an employer accused of sexual harassment to question the sexual harassment victim about her sexual activities with her husband that took place in the privacy of their bedroom. This is a logical and obvious result. Our law does not, and must not, penalize the victim for asserting her rights.

In a recent post on his Ohio Employer’s Blog, however, lawyer Jon Hyman says the trial court should allow the employer to question the sexual harassment victim about her sexual activities with her husband. Mr. Hyman opined that the appeals court “got it wrong” by excluding testimony regarding a sex tape that the harassment victim and her husband supposedly made – in the privacy of their own bedroom.

Mr. Hyman is certainly entitled to his legal opinion about the admissibility of this type of evidence at trial. But, Mr. Hyman’s opinion appears to be informed less by the rules of evidence, and more by a base desire to use this type of evidence to intimidate a victim of sexual harassment. According to Mr. Hyman:

“There is something viscerally appealing about cross-examining a sexual harassment plaintiff concerning her home videos.”

For Mr. Hyman to practically foam at the mouth to get his hands on this type of evidence in his next sexual harassment case is disturbing. In fact, it’s beyond disturbing; it’s downright creepy. And, more importantly, it reflects poorly on the legal profession, specifically on the employment defense bar.

Hopefully, lawyers on both sides of a sexual-harassment case share the opinion that sexual harassment is an egregious form of discrimination that should be eradicated from every workplace. Lawyers on both sides should also recognize that the legal proceedings leading up to a public trial are designed to seek the truth so that justice, in whatever appropriate form, may be served for both parties.

However, for a defense lawyer like Mr. Hyman to take “visceral” pleasure in the idea of humiliating a sexual-harassment plaintiff, in a courtroom, and in front of a jury, highlights the wide gulf that separates the idealism of the law from the reality of law practice.

Anti-discrimination laws are designed to identify and eliminate sexual harassment from the workplace. In an ideal world, employees and employers would work together to achieve this goal. Cooperation between these two groups – whose interests here should, ideally, converge – would result in fewer lawsuits; happier and more productive employees; and employers that are model corporate citizens.

Unfortunately, Mr. Hyman’s zeal to humiliate and punish a sexual-harassment victim does little to foster the trust and cooperation between employees and employers that is necessary to achieving a discrimination-free workplace. Rather, Mr. Hyman’s cross-examining a sexual-harassment plaintiff with the singular goal of causing further humiliation and pain only twists truth-finding proceedings into nothing more than no-holds-barred, one-sided warfare aimed at deterring sexual harassment victims from asserting her rights in the workplace.

As the lawyer in the equation, Mr. Hyman has no business amplifying what may be his clients’ natural instinct to feel resentment and anger towards an employee who files a lawsuit alleging discrimination or harassment. Instead, Mr. Hyman should take the leadership role that his law license confers upon him and seek to guide his clients through the legal process in a way that is respectful to all of the parties and that upholds the law. This is not to say that a corporate defendant does not deserve a defense; this is merely to say that the employer’s defense should not be premised on great personal cost to the plaintiff-employee.

Legal ideals and principles aside, Mr. Hyman should ask himself whether he would he want his wife, daughter, sister, or mother to be subjected to the type of cross-examination that he apparently would relish inflicting on a sexual-harassment plaintiff. Very unlikely, indeed.