Let's say your boss pinches your behind and makes crude comments about your skirt length.
This is textbook sexual harassment, so you decide to sue.
The good guy always wins, right? One might hope, but it's not that always that simple.
Let's go through what you can expect to happen in this scenario and others like it.
First, Find a Lawyer
Don't make the mistake of hiring the guy who helped you with your divorce, real estate closing, or even your brother-in-law who totally knows about sexual harassment because he's a prosecutor and that's illegal, and he's up on all that. I'm sure all of these people are perfectly nice people and probably even smart and capable. But, did you know that employment law isn't even covered on the multi-state bar exam?
Really. The multiple choice section covers civil procedure, constitutional law, contracts, criminal law and procedure, evidence, real property, and torts. While those are helpful for the employment lawyer, it's not exactly a topic your real estate lawyer studied heavily.
Employment law is super complex. It changes all the time. Lots of laws are state specific. You need an employment lawyer. I've heard from many people whose non-employment lawyer attorney screwed up their employment lawsuit. You can find an employment lawyer by contacting the National Employment Lawyers Association (NELA). These lawyers should know what is up.
Be Ready to Pay Up Front
Sure, if you have surgery and the surgeon accidentally amputates your left leg when he should have simply removed your varicose veins, attorneys will be lining up outside your door to take your case on contingency. That means you only pay your lawyer if you win.
Employment law isn't likely to be like that. Why? Because while a dramatic medical malpractice suit can result in millions of dollars changing hands, an employment lawsuit isn't likely to result in a big payout. If you're a junior analyst making $30,000 a year, even if you win, your damages aren't likely to be high.
TMI is a real thing, but you want to tell your employment attorney the truth. And by the truth, I mean the whole truth. Your case is very different if you were just walking down the hall and your boss pinched your rear end than if you had been having an affair with your boss for six months and you decided to break it off last Tuesday, and now you're mad your boss pinched you. Additionally, you may not have self-identified the real legal issue.
For instance, you may go in saying you were fired because your new boss wanted to hire her niece. Nepotism is actually legal, so you have no case. But, if you explain everything that went on, your attorney may point out that not only were you fired, but so were three other people, all over the age of 40, who were replaced by people younger than 25.
Chances are there was illegal activity going on but not what you thought. Many attorneys are going to ask you to fill out a questionnaire. This saves you and them time. Why pay for an attorney if the answers to your questionnaire indicate that you have no case?
Related Article: Why It's Time To Change Your Company's Dress Code
Employment attorney, Christopher McKinney, wrote up a handy list of what you should do for your initial meeting. This includes:
- Bring copies of related documents that you can leave with the attorney
- Bring a fact chronology. Just a list of date, fact. June 10, 2016, Jane Doe said X in a team meeting, for example.
- Be on time.
- Be prepared to pay the fee. Remember, the attorney is doing work for you.
- Dress appropriately. McKinney points out that attorneys are making a determination of whether or not you're likely to win. Juries and judges prefer people who dress appropriately.
- Don't bring unexpected guests. Moral support = good. Losing employee-client privilege because someone else is in the room = bad.
- Don't bring children. They are a distraction and the office staff doesn't want to watch them while you're in a meeting.
Wait and Wait and Wait
On television, every lawsuit is wrapped up in less than an hour (when you include commercials). In real life, lawsuits can take years. It can be painfully slow.
Expect Emotional Torture
My brother used to practice civil law (but not employment law) and he used to say, "The only person who wins in a civil case is the attorney." This is because by the time you've dragged out all the dirt about your opponent and they've dragged out all the dirt about you, you can get exhausted. You may find yourself not sleeping, or having trouble concentrating. Ask yourself if it's really worth it. It might be. It might not be.
Most employment law cases are not open and closed. It's pretty rare that there aren't two sides to every story. You may think you have an airtight case for gender discrimination, but then your employer will present scads of evidence that you were constantly late to work, rarely hit your productivity targets, and got into fights with other coworkers on a regular basis.
If You're Offered a Settlement, Listen to Your Attorney
Some companies will settle, even if they strongly believe they aren't at fault. Ask your attorney's advice and follow it. If your attorney says, "You'll never win in front of a jury," or "There's a probability we can win in front of a jury, but you aren't likely to do better than this," take the check and move on. Why? See above. Even if you win in court, you're not going to be a millionaire, and you'll be emotionally drained.
Related Article: Why Performance Reviews Don't Improve Performance
Does This Mean You Should Never Sue?
Of course not. Some companies deserve to have their heads handed to them on a platter. Sometimes just the mere threat of a lawsuit can make a company change their tune. Seriously, one letter can often straighten things up like an unjustified bad reference. But, just because you have a stong case against your employer doesn't mean you should sue.
Sometimes it's better just to walk away.