Labor of Law: Sexual-Harassment Case Delays Strain Witnesses' Memories, Frustrate Both Sides

Labor of Law: Sexual-Harassment Case Delays Strain Witnesses' Memories, Frustrate Both Sides

02.10.2022

Published by Law.com

February 10, 2022

"A lot of sexual harassment cases are about ‘he said, she said.' For the plaintiff, it’s going to be better if they have third party witnesses who witnessed the incident, heard the alleged harasser saying something and so forth," Robert Hudock, an attorney representing employers.

What You Need to Know

  • Pandemic-fueled court delays are especially problematic for sexual harassment lawsuits.
  • Parties are opting for arbitration or mediation to speed up a resolution.
  • But mediators are backed up as a result.

Court backlogs have stalled sexual harassment lawsuits throughout the pandemic, leaving employers and plaintiffs with two big challenges: the possibility that witnesses’ memories will fade, and the emotional toll of dragging on a dispute with no guaranteed end in sight.

It’s a conundrum that has pushed many employers and workers to seek alternative routes to a quicker resolution, but those are not always beneficial to the parties involved, employment lawyers say.

“One of the biggest tragedies with the COVID pandemic has been the impact on our clients who have suffered these traumas, and were all set to get their day in court,” said David Lowe, a partner at San Francisco-based firm Rudy, Exelrod, Zieff & Lowe who represents workers.

Appearing on a panel last month at a University of California Berkeley School of Law conference on workplace sexual harassment, Lowe said, “We had a sexual harassment case that was set for trial in April of 2020 and our client just wanted to get to a trial. She felt so strongly about it. … She wants the jury to hear the story.”

“Then COVID hit. We’re still waiting for a trial date,” Lowe said. “I have to tell her—and it’s heartbreaking—I don’t know when your case is going to get to trial. If you want to waive a jury, go into a bench trial, we might be able to do that. If you want to arbitrate the case, we could probably get to a hearing.”

Pandemic court closures and the temporary suspension of some court procedures have impacted every type of litigation during the pandemic. While many courts were able to begin tackling backlogs when they reopened in 2021, the recent Omicron surge, which revived court closures and again delayed court proceedings, threatens to prevent the backlog from clearing anytime soon.

Plaintiffs aren’t necessarily filing sexual harassment lawsuits at a slower rate either, even with many workers still logging in from home. Some lawyers say harassment by electronic communications grew more frequent during the pandemic, in addition, they say victims have become savvier at documenting harassment.

The type of evidence that sexual harassment cases often rely on makes them particularly time sensitive, Robert Hudock, a sole practitioner in Los Angeles representing employers.

A lot of sexual harassment cases are about “he said, she said,” Hudock said Wednesday. “For the plaintiff, it’s going to be better if they have third party witnesses who witnessed the incident, heard the alleged harasser saying something and so forth. … The issue with any kind of delay is witnesses’ memories fading. The longer you get out for a trial, the less people remember, the more they may remember it differently later on.”

For the companies defending the lawsuits, the legal fees they continue to pay for an open case is another reason to quickly resolve a case, said Kristine Kwong, who represents employers as a partner at Los Angeles-based Musick, Peeler & Garrett

Some of her clients have opted for arbitration, but since the pandemic started the majority of those involved in sexual harassment disputes have turned to mediation instead, she said Wednesday. But many mediators are deluged with cases, Kwong said.

“Good mediators are being booked up all the way to the end of the year,” she said. “Now you need to expand your list of mediators [to include those] you might not know, or you might not feel is good for your case. But if the parties are putting the timeline of getting an early resolution as a priority, then you will have to start choosing mediators that you might not have a lot of experience with.”

Still, Kwong said she believes this route might be the best available for now.

“In sexual harassment cases, there’s a lot of emotion involved. People want resolution. And because a lot of courthouses are not setting trials, it just delays the closure that the parties want,” she said. “That makes mediation a more realistic option to bring that closure.”