Ten Factors In Analyzing Damages in Sexual Harassment, Therapist Abuse and Employment Discrimination Cases

John D. Winer, San Francisco

I. INTRODUCTION.

This article attempts to highlight some of the key factors in play when analyzing damages in sexual harassment, therapist abuse and discrimination cases. It will not attempt to be an exhaustive discussion of the elements of damages incurred in those types of cases. This author has written substantially on those subjects (1) and those articles will provide a more substantive discussion of damage factors.

This article will attempt to provide a few ideas which can be utilized by an attorney in attempting to sort through, analyze and convey damages in cases stemming from employer and therapist abuse.

II. THE TEN FACTORS.

1. The People Of The State Of California Have Outlawed Harassment, Discrimination And Therapist Abuse.

When presenting a case of sexual harassment, therapist sexual abuse or employment discrimination, emphasize to the jury the fact that the People of the State of California have outlawed

this behavior. This is not just behavior that some people think is inappropriate, or that a judge thinks is inappropriate, this is behavior that is so bad, so unacceptable, and so beyond acts that society will allow, that it has been banned.

Emphasizing this theme throughout the case will begin to point out to the jurors the differences between damages inflicted by employers and therapists who abuse employees and patients versus damages resulting from more benign events like car accidents and slip and falls.

2. People In Power Must Be Contained.

The law recognizes that, necessarily, some people are going to be in positions of power over others. Virtually every employee, to some extent, gives up power to supervisors and employers, and any person who is dependent upon a fiduciary, whether it is a banker, lawyer, doctor or therapist, gives up power to that fiduciary.

We as a society have learned that if we allow people in power to go unchecked, they will sometimes abuse their power and take advantage of the less powerful people under their control.

One of the most important checks on people in power in the workplace and in fiduciary relationships is the civil justice system. A theme can be created in any employment or breach of fiduciary duty case that if the jury lets this defendant get away with the harassment, discrimination or abuse, that it will be sending a signal that we as a society will allow powerful people to abuse all of us. This should send a message to any given juror that if they do not act to create justice in this case, that they will be the next victim of the abuse of the powerful.

3. The Injury Is Personally Inflicted By One Person Upon Another Person.

In our industrial society, there are many ways to be seriously injured in an impersonal manner. For instance, a person who is injured in a car accident stemming from a defective product will never know the person, or persons, who caused his or her injury. Further, even though a plaintiff who has been injured as a result of someone else's negligence may know the other person, or at least know who the other person is, most frequently the injury was not meant to be personal. A driver who runs a red light did not mean to injure the particular victim. The same is true in virtually all accident cases.

However, in a harassment, discrimination or therapist abuse case, the victim always knows the immediate perpetrator and is virtually always the intended recipient of the perpetrator's action. (This is not to say that the perpetrator necessarily intended to inflict injury on the victim but, rather, that there is a personal relationship and some type of personal exchange.)

The personal nature of the injury in a discrimination, harassment or abuse case is probably the dominant reason why injuries and damages flowing from this type of wrongdoing tend to be so deep, painful, long lasting and resistant to treatment. These factors will be discussed later in this article, but for purposes of analysis, the personal relationship between the perpetrator and the victim must be understood and explored. To some extent, the injury will always flow from the intentional or negligent abuse of power by somebody in the position to negatively impact the life of a victim vulnerable to that power. Either financial dependency will be abused, i.e., an employee, or psychological dependency will be abused, i.e., therapy patient. When analyzing damages we will see that the more personal the wrongdoing, the more serious and long lasting will be the impact.

4. Damages Flow From A Betrayal Of Trust.

Betrayal of trust in these types of cases can best be seen on a continuum. On the one end of the continuum is the highly dependent, vulnerable psychotherapy patient being treated by a powerful, trained psychotherapist. On the other end of the continuum is the successful, fairly independent corporate executive with a great deal of job flexibility who has risen almost to the top of his or her profession. In the middle of this continuum will be the millions of psychotherapy patients and employees who will have varying degrees of dependency on trusted people in positions of power over them. Although the degree of dependency is important, for the purposes of analyzing injuries that flow from a betrayal of trust, it is important to understand that there is always some betrayal of trust when an employer or fiduciary takes advantage of somebody who is either financially or psychologically dependent upon them. Further, because of individual differences and varying degrees of frailty and vulnerability, where a person is on the dependency continuum will not necessarily indicate how badly they will be damaged by a betrayal of trust.

Almost any time an employee goes to work for an employer he or she is putting his or her trust in the employer. The employee is trusting that he or she will be paid and otherwise treated fairly and according to the law. When an employer breaches that trust by discriminating against or harassing the employee, the injury tends to be quite significant. Frequently the injury will outlast the employment relationship because of the very nature of the betrayal. When an employee has allowed themself to be in a position of vulnerability and that vulnerability is exploited by the employer, the injury does not end when the employment relationship ends. The injury tends to be permanent (see section 9) and resistant to treatment (see section 8) because of the personal nature of the injury and the fact that that person will fear reinjury when facing the next situation when he or she has to trust, whether that be social, personal or employment.

This is even more true in any psychotherapy or other doctor/patient relationship in which a dependent patient must be able to trust to be able to function either in the psychotherapy relationship or in the world.

5. The Act Is The Injury (And The Injury Is Injustice).

When analyzing damages flowing from sexual harassment, abuse or discrimination, the defense will often want you or the jurors to analyze the damage element of the case in a vacuum. That is, the defendant, defense attorney and/or insurance carrier will want to analyze damages in an employment case the same way they would in a car accident case. However, because of the personal nature of the wrongdoing and injury, this type of analysis is impossible and should not be rendered.

We have had therapist sexual abuse cases in which the defense has admitted liability and attempted to keep all evidence of the specifics of the defendant's wrongdoing out of evidence. But this makes no sense. The only way to understand the plaintiff's injury is to understand the specifics of the wrongdoing.

This leads to another important subpoint. That is, in discrimination, therapist abuse or harassment cases, the damages flow from the injustice of the situation, as much as they flow from the injury to the plaintiff. This is most frequently true in harassment and discrimination flowing from employment. A person who has been discriminated against in the workplace may not suffer what is commonly thought of as a severe psychological disorder such as post traumatic stress disorder. However, this does not mean that they are not injured, and certainly does not mean that they were not treated unjustly. In that type of case, the injustice of the situation must be emphasized, and is often easily understood by jurors who intuitively connect injury with injustice.

6. Damages Flowing From Abuse, Discrimination And Harassment Frequently Involve Injury To The Heart and Soul.

Section 10 of this article will discuss the overlap between the various elements of injury. However, it is important to conceptualize the fact that the personal nature of abuse, harassment and discrimination will often lead to an injury that can be best visualized as an injury to the heart and soul, which are injuries far deeper and more significant than most injuries to the body. Let us look at some simple examples:

One, in the psychotherapy context, if a therapist became frustrated with a patient and kicked her in the kneecap, the patient would suffer some pain, probably of a short-lived nature and some slight feeling of betrayal by the therapist, which could probably be overcome with an apology. However, if that same therapist utilized his power to sexually abuse the patient, the patient would likely be left with a lifelong disability which would not be helped with all of the apologies in the world. The reason is that the first injury was to the surface of the patient, whereas the second injury is to the very deepest recesses of the person's self-image and soul.

By way of example in the employment context, if a supervisor unintentionally leaves a slippery substance on the floor and an employee slips and receives a back injury, that will cause one kind of damage. If that same supervisor systematically discriminates against the employee and treats him or her unjustly and unfairly, it will create an entirely different type of injury and damage that will be far more difficult to repair and far more difficult for the employee to live with and overcome.

7. Guilt.

An important element of almost all injuries stemming from harassment, abuse and discrimination is guilt. Victims of this type of abuse almost always, to some extent, blame themselves for their injury which tends to be one of the most insidious and ugly elements of their injury. It is human nature for one injured by the personal act of another to, at least initially, blame themselves. Victims of this type of abuse frequently can be heard saying things like, "If only I had not been so seductive." "If only I had tried harder to stop him." "Why did this happen to me? It must be because I am so seductive." "Why didn't I just leave and get another job?"

We all feel guilty from time to time and we are all aware of the type of damage that guilt can cause. It causes loss of sleep, lowered self-esteem, withdrawal, depression, anxiety and a whole multitude of other symptoms, which are serious and problematic because it feels like it is self-inflicted.

One way in which I sometimes attempt to portray my client's injuries to defense attorneys is to point out to the defense attorney that the very thing that the defense attorney does not like or hates about my client is the thing that the plaintiff does not like or hates about themselves. If the defense attorney believes that the injury is all the plaintiff's fault because of her "seductiveness" I will point out to the defense attorney that this is exactly what the plaintiff feels about herself, and that is why she wants to kill herself. If the defense attorney questions why the plaintiff just did not leave the workplace in which she was being harassed or discriminated against, I will point out to the defense attorney that she asks herself the same question. She in fact does not trust herself which is exactly why she has been unable to look for another job because she fears that the same thing will happen all over again.

This same strategy can be utilized with jurors through a series of rhetorical questions. The jurors no doubt will have questions about the plaintiff's behavior, and it can be pointed out to the jurors that the plaintiff has these same questions about himself or herself, which has lead to depression, anxiety and suicidality.

8. Why Injuries Flowing From Abuse, Discrimination And Harassment Are Resistant To Treatment.

The only way to treat injuries flowing from abuse, harassment or discrimination is one form or another of psychotherapy. Although medication may help the symptoms, it will not help the cause of the symptoms which is a sense of betrayal, guilt and self-hatred. However, for psychotherapy to work there must be trust. A mentally disordered, vulnerable patient must trust an authority figure in a position of power. The patient must be willing to give over the power to the therapist and to trust the therapist. Almost by definition, victims of abuse, discrimination or harassment have been betrayed, at least once, when they have given over power to an authority figure. To ask these people to give over power and to trust again, feels to that person as though they are being asked to walk blindfolded to the edge of a cliff. It takes years and years to rebuild the trust that has been betrayed and to allow the person to even begin a significant, intensive treatment process which is almost always necessary to overcome damages flowing from harassment, abuse or discrimination.

9. The Long-lasting Nature Of Damages Flowing From An Abuse, Discrimination Or Harassment.

As mentioned earlier in this article, the damages flowing from sexual harassment, discrimination or therapist abuse will last long beyond the termination of the abusing relationship. Why? During the relationship, the plaintiff is likely to feel symptoms of anxiety as he or she attempts to deal with difficult situation. As a general rule of thumb, most employees show symptomatology of anxiety reactions during the time that they are experiencing harassment, and subsequently develop depressive reactions when they are no longer working.

The anxiety states are more prevalent during the ongoing process because the person is still engaged in the struggle to remedy their situation, is still suffering from the anticipation of further assaults on their ego, and are still in a state of alarm and vigilance and psychological combat. Once they have been rendered disabled or work-terminated, a more insidious process ensues involving feelings of inadequacy, and other vegetative symptoms of depression. They have gone from being psycho-active to psycho-inert. In the earlier anxiety-while-working stages, the more prevalent symptoms will be sleeplessness, somatic expressions, irritability, hyperactivity, work dread, impatience, anger, etc. Naturally these two periods are not distinct and there can be significant overlap of symptomatology. (See "Emotional Distress Damages In Wrongful Termination Cases," by John D. Winer and Paul S.D. Berg, Ph.D.)

Because of the personal nature of the injury (see section 3), because it involves a deep betrayal (see section 4), because it results in guilt (see section 7) and because it so resistant to treatment (see section 8), one tends to never fully recover from an injury caused by abuse, harassment and discrimination and becomes extremely susceptible to reinjury if the offending behavior is repeated by another. Also, the plaintiff frequently has a fear of reinjury, which will cause the plaintiff to withdraw and isolate himself or herself from the rest of the world.

10. Overlap Between The Emotional, Physical And Cognitive Components Of Injuries Caused By Abuse, Harassment Or Discrimination.

All injuries have a physical, emotional and cognitive component that feed on each other. In analyzing damages that flow from abuse, discrimination or harassment, it is important to be aware of how these components affect the individual separately and all together. It is only by understanding the injury in relation to the cognitive, emotional and physical components together that the injury can be understood and conveyed to a jury. A few examples may be helpful.

Over the period of a year, a supervisor makes numerous unwanted sexual remarks to a young woman employee. Finally she goes to human resources, they do not do anything to help her and she quits.

The defendant's actions will first of all cause an emotional injury to the plaintiff. She will most likely suffer anxiety whenever she is at work and she will become depressed over her own failure to deal with the situation. However, her symptoms will not be strictly emotional. She will also feel them in a physical way. She will likely become tired as a result of the loss of sleep and her heart will beat faster whenever her supervisor enters the room. She may develop psychosomatic-type illnesses such as stomach problems and headaches. The emotional and physical difficulties will affect the plaintiff cognitively. She will not be able to think as well at work because of her increased nervousness. When she goes home and tries to read a book, she will be unable to concentrate because of the emotional or physical symptoms of the anxiety and depression. Her inability to think clearly will make her even more depressed and anxious, which will increase her headaches and stomach problems and on and on and on.

A middle-aged woman who has been sexually abused by her father as a child seeks the help of a therapist. After building up the patient's trust in him, he convinces the patient that a sexual relationship with him will help overcome the problems flowing from her incestual relationship and make her live a more fulfilled life. The patient willingly goes along with the sexual relationship.

What will happen to patient? One of the first things that may be negatively affected is the patient's cognition. She is likely to initially feel confused by the therapist's changing role in her life. She will be unable to deal with the confusion, will be unable to talk to her therapist about it, and she will likely develop physical symptoms such as headaches and shakiness. The headaches and shakiness will make it even more difficult for the patient to think clearly and her life will likely go down hill, both in terms of work and social life. Her emotional life will deteriorate as she becomes increasingly depressed and anxious. She will not understand why she is emotionally deteriorating so she will become even more confused and have even more difficulty thinking clearly. And on and on and on.

A clear analysis of all injuries, including injuries flowing from discrimination, abuse and harassment will reveal the fact that all three components of the plaintiff will be negatively affected by the defendant's wrongful acts.

III. CONCLUSION.

Again, the ten factors listed above are not meant to be exhaustive; however, the analysis of any given case utilizing the ten factors should help a plaintiff's attorney convey his or client's situation to a jury and should lead to further areas of inquiry which will help the attorney to understand the client's pain and convey that pain to the jurors who, ultimately, may be in a position to help the plaintiff recover from his or her injury with a large monetary award.

1. "Understanding Causation: The Key to Evaluating Psychological Injury Cases," National College of Advocacy Syllabus on Recovering for Psychological Injuries, 1990; "Helpful Hints on Litigating Therapist Abuse Cases," CTLA 30th Annual Convention Syllabus, 1991; (Consultant), Chapter on "Medical Negligence - Psychotherapist Sexual Contact with Client," 14 AMJur Proof of Facts 3d. 319, 1991; "Five Critical Ideas for Maximizing Damages in Psychological Injury Cases," SFTLA Psychological Injury Seminar Syllabus, 1992; "How to Succeed in Psychological Injury Cases," CTLA 27th Annual Tahoe Seminar Syllabus, 1992; "Tips on Arguing Damages in the 90s," CTLA 28th Annual Tahoe Seminar Syllabus, 1993; "Emotional Distress: Arguing What You Cannot See," CTLA 36th Annual Convention Syllabus, 1993; "An Overview of Handling Therapist Malpractice Cases: Sex, Drugs, Suicide and Bad Therapy," CTLA 29th Annual Tahoe Seminar Syllabus, 1993; "Legal Strategies for Representing Psychologically Injured Plaintiffs," CTLA 33rd Annual Convention Syllabus, 1994; "Ten Simple Steps to Success in Litigating Therapist Abuse Cases," CTLA Forum, 1994; "Understanding the Dynamics of the Attorney Client Relationship in Professional Abuse Cases," CTLA Seminar Syllabus, 1994; "Creative Techniques for Maximizing the Settlement Value of Your Case," CTLA/SFTLA Advanced Settlement Techniques Seminar Syllabus, 1994; "Emotional Distress Damages in Wrongful Termination Cases," CAOC 34th Annual Convention Syllabus, 1995; "How to Convey Mental Distress to a Jury: The Psychology of Suffering," CAOC 31st Annual Tahoe Seminar, 1996; "Understanding the Overlap Between Cognitive, Physical and Emotional Injuries," CAOC Convention Syllabus, 1996.

This article was authored by John D. Winer. Winer, McKenna & Burritt, LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.