Skip to main content
Part of complete coverage from

What makes sex harassment cases tough to win

By Danny Cevallos
updated 11:07 AM EDT, Sat July 19, 2014
STORY HIGHLIGHTS
  • Danny Cevallos: A Yahoo exec is being sued for sex harassment, but denies charges
  • He says case highlights how poorly understood the sexual harassment law is
  • Cevallos: There are two kinds of sexual harassment cases, both difficult to prove

Editor's note: Danny Cevallos is a CNN legal analyst, criminal defense attorney and partner at Cevallos & Wong, practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.

(CNN) -- After being sued for sexual harassment, a Yahoo executive is countersuing a former employee who leveled the original accusations against her. While the stakes of the sexual harassment claim are large, the underlying facts are actually quite common in this variety of litigation.

Former software engineer Nan Shi filed a complaint against the executive, Maria Zhang, accusing her of coercing Shi into sex, and threatening to fire Shi. Zhang and Yahoo's defense is that Shi fabricated the entire story. Yahoo says she is an underperformer who received negative performance evaluations.

There is perhaps no area of the law where we have failed to educate our citizenry more than sexual harassment. Every lawyer has fielded a call from a potential client or family member, who believes fervently that they are victims of "harassment," "discrimination" or a "hostile work environment."

Danny Cevallos
Danny Cevallos

That may be true. But, there is a huge difference between the common usage of these words and the legal definition. The vast majority of what employees personally consider "harassment" bears little resemblance to the kind of harassment that is legally actionable.

Federal and state law, and in the Yahoo case, the California Fair Employment and Housing Act prohibits discrimination and harassment against an employee based on sex (among other things). There are two types of sexual harassment: hostile work environment sexual harassment and quid pro quo sexual harassment.

Hostile work environment is far more popular in that people often believe their workplace is hostile because their boss is a jerk, or he "has it out for them." But, as the Supreme Court has famously said, discrimination laws are not a "general civility code for the American workplace."

"There is perhaps no area of the law where we have failed to educate our citizenry more than sexual harassment."
Danny Cevallos

In the Yahoo case, the plaintiff is alleging the other kind of harassment. Quid pro quo harassment is rarer, but potentially easier to prove. Quid pro quo means "this for that." Simply put, a plaintiff must prove that a boss first made unwanted sexual advances or engaged in other unwanted sexual conduct.

The plaintiff must also prove either that job benefits were conditioned on acceptance of those sexual advances or that employment decisions were based on his/her acceptance or rejection of the boss' conduct.

As one can imagine, it's far more common for people to allege that they work in a generally sexually charged atmosphere than to allege that a boss made a concrete sexual advance, with a clear "or else" condition attached to it.

From an evidence standpoint, however, quid pro quo harassment has more "smoking gun" potential. This is because a single instance of quid pro quo sexual harassment may be actionable. On the other hand, a single incident of hostile work environment sexual harassment will not justify a lawsuit, unless it's really bad.

It makes sense: If the boss sends you an e-mail saying: "Meet me in the supply room for hanky-panky if you want that promotion," then you've established the overture with one e-mail. On the other hand, e-mailing or telling a lewd joke may be offensive in one person's cubicle, but hilarious in the other's. It makes sense that hostile work environment requires more severe, pervasive behavior, or else the legitimate claims would be overwhelmed by the "can't take a joke" plaintiffs.

In the Yahoo case, the plaintiff has alleged actual sexual contact, which the executive denies.

Even in cases where there is a consensual relationship, there can still be actionable sexual harassment. This commonly happens where the office romance ends, and the demotions begin. So, even if there was a prior relationship, the plaintiff here could potentially prevail on a harassment claim.

If Shi fabricated the allegations, as the defendants assert, then that would be a bold and brassy lie. But it wouldn't be unique. Defendants in these cases frequently claim the plaintiff conjured up harassment just to save their job after substandard performance reviews. It becomes a high-stakes chicken-and-egg game: Were the negative reviews a conspiracy to cover up the harassment? Or was the harassment made up to cast doubt on the reports of underperformance? Only time—and a jury—will tell.

According to California law, all employers must take all reasonable steps to prevent harassment.

At least some of those reasonable steps include that sign we've all seen over the coffee machine in the break room, the one that basically says "Sexual Harassment is Bad." In California, that's a poster distributed by the California Department of Fair Employment and Housing. Increasingly, it seems, we're becoming a nation of anemic warning signs instead of concerted action. Do we actually believe an executive planning to accost and grope his secretary in the file room will rethink his intentions after reading a poster hung over the water cooler?

California employers have a duty and a financial incentive to investigate these claims, because employers are often held strictly—or automatically—liable for a lecherous supervisor.

Yahoo allegedly conducted an investigation and cleared Maria Zhang. In California, an employer's duties in responding to allegations include conducting an immediate inquiry, encouraging a written complaint, and protecting the employee from retaliation. It's true that human resources is oft-criticized for siding with management against employees, but if Yahoo feels confident enough to keep backing Zhang, that suggests its internal investigation revealed no wrongdoing.

Ultimately, actionable sexual harassment claims are a fraction of the total charges filed with the EEOC and state agencies. This is because the public misunderstands the high burden on a plaintiff to prove sexual harassment. It takes a lot to prove an employer's conduct transcended ordinary office nastiness into illegal harassment.

The recent story of the Chicago area employer who limits bathroom breaks to six minutes a day reminds us what we all already knew: There are a lot of lousy workplaces, evil bosses and cruel co-workers. Unfortunately, the vast majority of us have a perfectly legal—if not pleasant—work environment.

Read CNNOpinion's new Flipboard magazine.

Follow us on Twitter @CNNOpinion.

Join us on Facebook.com/CNNOpinion.

ADVERTISEMENT
Part of complete coverage on
updated 9:29 AM EDT, Mon October 20, 2014
Cornell Belcher says the story of the "tea party wave" in 2010 was bogus; it was an election determined by ebbing Democratic turnout
updated 4:12 PM EDT, Mon October 20, 2014
Les Abend says pilots want protocols, preparation and checklists for all contingencies; at the moment, controlling a deadly disease is out of their comfort zone
updated 11:36 PM EDT, Sun October 19, 2014
David Weinberger says an online controversy that snowballed from a misogynist attack by gamers into a culture war is a preview of the way news is handled in a world of hashtag-fueled scandal
updated 8:23 AM EDT, Mon October 20, 2014
Julian Zelizer says Paul Krugman makes some good points in his defense of President Obama but is premature in calling him one of the most successful presidents.
updated 10:21 PM EDT, Sun October 19, 2014
Conservatives can't bash and slash government and then suddenly act surprised if government isn't there when we need it, writes Sally Kohn
updated 8:28 AM EDT, Mon October 20, 2014
ISIS is looking to take over a good chunk of the Middle East -- if not the entire Muslim world, write Peter Bergen and Emily Schneider.
updated 9:00 AM EDT, Mon October 20, 2014
The world's response to Ebola is its own sort of tragedy, writes John Sutter
updated 4:33 PM EDT, Fri October 17, 2014
Hidden away in Russian orphanages are thousands of children with disabilities who aren't orphans, whose harmful treatment has long been hidden from public view, writes Andrea Mazzarino
updated 1:22 PM EDT, Sat October 18, 2014
When you hear "trick or treat" this year, think "nudge," writes John Bare
updated 12:42 AM EDT, Sat October 18, 2014
The more than 200 kidnapped Nigerian schoolgirls have become pawns in a larger drama, writes Richard Joseph.
updated 9:45 AM EDT, Fri October 17, 2014
Peggy Drexler said Amal Alamuddin was accused of buying into the patriarchy when she changed her name to Clooney. But that was her choice.
updated 4:43 PM EDT, Thu October 16, 2014
Ford Vox says the CDC's Thomas Frieden is a good man with a stellar resume who has shown he lacks the unique talents and vision needed to confront the Ebola crisis
updated 4:58 AM EDT, Sat October 18, 2014
How can such a numerically small force as ISIS take control of vast swathes of Syria and Iraq?
updated 9:42 AM EDT, Fri October 17, 2014
How big a threat do foreign fighters in Syria and Iraq pose to the West? It's a question that has been much on the mind of policymakers and commentators.
updated 8:21 AM EDT, Fri October 17, 2014
More than a quarter-million American women served honorably in the Iraq and Afghanistan wars. Now they are home, we have an obligation to help them transition back to civilian life.
updated 4:27 PM EDT, Thu October 16, 2014
Paul Begala says Rick Scott's deeply weird refusal to begin a debate because rival Charlie Crist had a fan under his podium spells disaster for the Florida governor--delighting Crist
updated 12:07 AM EDT, Thu October 16, 2014
The longer we wait to engage on Ebola, the more limited our options will become, says Marco Rubio.
updated 7:53 AM EDT, Wed October 15, 2014
Democratic candidates who run from President Obama in red states where he is unpopular are making a big mistake, says Donna Brazile
updated 12:29 AM EDT, Thu October 16, 2014
At some 7 billion people, the world can sometimes seem like a crowded place. But if the latest estimates are to be believed, then in less than a century it is going to feel even more so -- about 50% more crowded, says Evan Fraser
updated 12:53 PM EDT, Mon October 20, 2014
Paul Callan says the Ebola situation is pointing up the need for better leadership
updated 6:45 PM EDT, Wed October 15, 2014
Nurses are the unsung heroes of the Ebola outbreak. Yet, there are troubling signs we're failing them, says John Sutter
updated 1:00 PM EDT, Wed October 15, 2014
Dean Obeidallah says it's a mistake to give up a business name you've invested energy in, just because of a new terrorist group
updated 7:01 PM EDT, Wed October 15, 2014
Fear of Ebola is contagious, writes Mel Robbins; but it's time to put the disease in perspective
updated 1:44 PM EDT, Tue October 14, 2014
Oliver Kershaw says that if Big Tobacco is given monopoly of e-cigarette products, public health will suffer.
updated 9:35 AM EDT, Sat October 18, 2014
Stop thinking your job will make you happy.
updated 10:08 PM EDT, Tue October 14, 2014
Ruben Navarrette says it's time to deal with another scandal involving the Secret Service — one that leads directly into the White House.
updated 7:25 AM EDT, Tue October 14, 2014
Americans who choose to fight for militant groups or support them are young and likely to be active in jihadist social media, says Peter Bergen
updated 9:03 AM EDT, Mon October 13, 2014
Stephanie Coontz says 11 years ago only one state allowed same sex marriage. Soon, some 60% of Americans will live where gays can marry. How did attitudes change so quickly?
updated 4:04 PM EDT, Tue October 14, 2014
Legalizing assisted suicide seems acceptable when focusing on individuals. But such laws would put many at risk of immense harm, writes Marilyn Golden.
updated 9:07 AM EDT, Mon October 13, 2014
Julian Zelizer says the issues are huge, but both parties are wrestling with problems that alienate voters
updated 6:50 PM EDT, Mon October 13, 2014
Mel Robbins says the town's school chief was right to cancel the season, but that's just the beginning of what needs to be done
updated 11:43 AM EDT, Sat October 11, 2014
He didn't discover that the world was round, David Perry writes. So what did he do?
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT