Deposing the defendant in workplace sexual harassment cases

Many workplace sexual harassment cases will focus on both the misconduct of the defendant company and the misconduct of the actual perpetrator. If you are the plaintiff in a workplace sexual harassment lawsuit, your mental injury trial lawyer may need to take the depositions of people who were supervisors and managers of the company that employed the perpetrator. In most cases, it is also important for your mental injury trial lawyer to depose the perpetrator. By taking the perpetrator’s deposition, your attorney can:

• Observe and determine the credibility of the perpetrator.
• Obtain testimony of the perpetrator regarding any misconduct by the employer, such as testimony that indicates the employer knew or should have known of prior misbehaviors of the perpetrator.

Background of perpetrator

In taking the deposition of the perpetrator, your mental injury lawyer will ask questions about the perpetrator’s background. The questions will seek to discover pertinent facts, obtain admissions, and investigate the credibility of the perpetrator and possibly the employer. Deposition questions about background may include:

• Age of perpetrator.
• Marital status of perpetrator.
• History of perpetrator.
• Does perpetrator have children?
• Educational background of perpetrator.
• Description of every job perpetrator has held and the reason for leaving each job.
• Was perpetrator ever accused of sexual harassment in any of those jobs? If so, explain the details.
• Was perpetrator ever disciplined in any of those jobs? If so, explain the details.
• Was perpetrator ever involved in any sexual harassment investigations in any of those jobs?
• Did perpetrator receive any sexual harassment training in any of those jobs? If so, explain the details of the training.
• Was perpetrator aware of sexual harassment policies in any of those jobs? If so, explain the policies.
• Names of perpetrator’s supervisors and coworkers in prior jobs.
• Did perpetrator have any problems in any of the prior jobs? If so, what are the details?
• Was perpetrator ever convicted of a felony?

Perpetrator’s employment history with defendant company

During the perpetrator’s deposition, your mental injury trial lawyer may ask questions aimed at discovering witnesses to the perpetrator’s behavior. Your lawyer may also ask questions aimed at demonstrating that the employer knew or should have known of problems with the perpetrator, yet took no action to remedy the situation (or, in some cases, even promoted the perpetrator). These types of deposition questions that your attorney may ask the perpetrator include:

• Perpetrator’s date of hire.
• Every position that perpetrator held within the company from beginning of employment.
• Dates of change of position or job title.
• Reason for moving from position to position.
• Were moves from position to position promotions, demotions or lateral moves?
• Was any move from position to position voluntary?
• Supervisors and immediate coworkers in each position.
• Complaints about perpetrator in every position.
• Responsibilities of perpetrator in every position.
• Any discipline of perpetrator in any position.
• Did perpetrator ever leave the company for a period of time and then return? If so, why did perpetrator leave and why did perpetrator return?
• Has perpetrator been terminated? If so, why?
• Did perpetrator voluntarily leave? If so, why?
• Was perpetrator forced to leave? If so, what were the circumstances?

Perpetrator’s knowledge of sexual harassment law

During the deposition, your mental injury trial attorney may ask about the perpetrator’s knowledge of sexual harassment law. These deposition questions may include:

• What is the extent of perpetrator’s knowledge of laws that prohibit sexual harassment in the workplace?
• Where did the perpetrator learn about these laws?
• State the details of that training (when, where, what, who gave the training, nature of classes or seminars, etc.).
• What is the perpetrator’s understanding of what constitutes sexual harassment and how did he or she gain that understanding?
• Did perpetrator realize that sexual harassment could involve something less than unwanted touching?
• Did perpetrator realize that sexual harassment could involve unwelcome comments?
• Did perpetrator recognize that sexual harassment could involve writings?
• Did perpetrator recognize that sexual harassment could involve unwelcome gestures or staring?

Sexual harassment training

Employers have a duty to educate employees on sexual harassment issues. At the perpetrator’s deposition, your personal injury attorney may ask about the training the perpetrator received from the company. This information is important in determining whether or not the company fulfilled its responsibilities. Deposition questions may include:

• Did perpetrator receive any sexual harassment training by defendant company?
• What was the nature of the training?
• When was the training?
• How long did the training last?
• Who was present at the training?
• Who gave the training?
• Were there any written materials provided at the training? If so, did perpetrator review the materials?
• Were any visual aids utilized at the training?
• What did perpetrator learn at the training?

Knowledge of company’s policies

At the perpetrator’s deposition, your mental injury attorney may also ask about the perpetrator’s knowledge of the employer’s sexual harassment policies. These deposition questions include:

• Did perpetrator receive any type of employee handbook?
• Did perpetrator review the employee handbook?
• Did perpetrator review sexual harassment policies in the handbook?
• Did employer do anything other than provide perpetrator a handbook to make sure perpetrator was familiar with the employer’s sexual harassment policy?
• Did perpetrator review policies regarding reporting sexual harassment in the handbook?
• Ask perpetrator to recite the company’s policies regarding sexual harassment.
• When did perpetrator first review the sexual harassment policy?
• How many times did perpetrator review the sexual harassment policy?
• Did the company make any effort to disseminate the sexual harassment policy after the perpetrator was hired? If so, what was the nature of the dissemination?
• Did perpetrator sign an acknowledgement form indicating that the perpetrator received and reviewed a copy of the policy?
• Describe in detail specific examples of behavior that are prohibited by the sexual harassment policy.
• Go through every incident of sexual harassment that the perpetrator inflicted on the plaintiff and ask the perpetrator if he or she understood that such behavior was prohibited under the company’s sexual harassment policies and under the law.

Sexual harassment by others

Many sexual harassment cases involve an employer that allows a hostile work environment to exist. During the perpetrator’s deposition, the perpetrator may claim that he or she did not do anything worse than other employees were doing at the company. Such testimony against the employer can be important evidence of a hostile work environment. Deposition questions that the sexual harassment plaintiff’s attorney may ask the perpetrator include:

• Did perpetrator ever see anyone else in the company engage in conduct which perpetrator believed was sexual harassment?
• If so, what was the nature of the behavior?
• If so, what did perpetrator do to report the behavior, if anything?
• If perpetrator observed sexually harassing behavior and did not report it, why not?
• If perpetrator is aware of other incidents of sexual harassment within the company, what were the results of any sexual harassment investigations?
• What happened to the complainant?
• What happened to the harasser?
• Did perpetrator believe that his or her sexual behavior or comments were appropriate because perpetrator’s own supervisor engaged in such behavior or ignored such behavior by perpetrator and others?
• Did perpetrator believe that his or her sexual behavior or comments were appropriate because of a company culture permitting or encouraging such behavior?

Perpetrator’s sexual harassment of others

The sexual harassment plaintiff’s lawyer may also question the perpetrator about facts related to the plaintiff’s hostile work environment, the plaintiff’s credibility, and notice by the employer. These deposition questions may include:

• Has perpetrator made any comments of a sexual nature to employees other than plaintiff?
• Did perpetrator make any sexist comments to anybody other than plaintiff?
• Has perpetrator made any sexual gestures to any employees other than plaintiff?
• Has perpetrator sexually touched any employees other than plaintiff?
• Has perpetrator been romantically involved with any employees other than plaintiff?
• Has perpetrator been sexually involved with any employees other than plaintiff?
• Has perpetrator ever asked any employees out on dates?
• Has perpetrator ever dated any employees other than plaintiff?
• Has perpetrator been criticized for any of the above behavior by anyone at the company?

Incidents of sexual harassment of plaintiff

When deposing the perpetrator, the plaintiff’s attorney will ask detailed questions about the sexual harassment inflicted on plaintiff. The purpose of many of these questions is to find out exactly where the plaintiff’s statements and the perpetrator’s statements differ. Another purpose is to discover evidence showing that the plaintiff’s story is more credible than the perpetrator’s.

The plaintiff’s attorney can go through each incident of sexual harassing behavior in detail and, for each incident, attempt to learn:

• Does perpetrator admit to the incident occurring?
• Does perpetrator admit to being in contact with plaintiff at the time of the incident?
• What if any are the consistencies between plaintiff’s version of events and perpetrator’s.
• Does perpetrator know of any witnesses to each incident?
• Did perpetrator tell anybody about the incident at the time?

Employment relationship of perpetrator and plaintiff

In many workplace sexual harassment cases, it is important for the plaintiff’s attorney to establish whether the perpetrator is a manager of the employer company, is a supervisor of the plaintiff, or both. Deposition questions to determine the perpetrator’s supervisor or manager status may include:

• Was perpetrator plaintiff’s direct supervisor at the time of the harassment?
• Was perpetrator ever plaintiff’s direct supervisor?
• Was perpetrator somewhere in the direct chain of command above plaintiff?
• Was perpetrator a supervisor at defendant company?
• Was perpetrator in a higher position of authority in the company than plaintiff?
• Did perpetrator have any type of supervisory power over plaintiff?
• If perpetrator told plaintiff what to do at the job, would plaintiff have to listen?
• Did perpetrator have access to plaintiff’s personnel file?
• Was perpetrator in a position to recommend that the company take positive or negative action toward plaintiff?
• What were perpetrator’s daily job responsibilities?
• What was the extent of perpetrator’s authority to hire, promote, transfer and terminate employees such as plaintiff?
• What was the extent of perpetrator’s authority to assign work, evaluate performance, give salary increases and discipline or recommend discipline to employees?
• Did perpetrator have the power to “save” plaintiff’s job?
• Did the perpetrator have the ability to determine company policy?
• Did the perpetrator operate his or her “unit” without any direct supervision from superiors?

Knowledge of plaintiff’s psychological vulnerabilities

The perpetrator’s lack of knowledge about plaintiff’s vulnerabilities should not excuse the perpetrator’s sexually harassing behavior. However, if the perpetrator did have knowledge of plaintiff’s vulnerabilities, it makes the sexually harassing behavior even more egregious. Perpetrators tend to be very good at “picking” their victims. If the perpetrator is a predator who exploited knowledge of plaintiff’s vulnerabilities, then sensible jurors will discount any defense assertion that plaintiff “consented to” or “welcomed” the perpetrator’s conduct. Deposition questions may include:

• Did perpetrator know anything about plaintiff’s early childhood history?
• Did perpetrator have any knowledge of any early sexual, physical or emotional abuse suffered by plaintiff?
• Did perpetrator know that plaintiff was going through a difficult emotional time at the time of harassment?
• Did perpetrator know that plaintiff had suffered a recent significant loss, such as the death of a loved one?
• Did perpetrator know that plaintiff was having a difficult time in her marriage or relationship with a significant other?
• Did perpetrator know whether or not plaintiff was on psychotropic medication?
• Did perpetrator know whether or not plaintiff was seeing or recently had seen a psychotherapist?
• Did perpetrator appear to be emotionally distressed just before or at the time of the alleged sexual harassment incident?

Knowledge of plaintiff’s financial dependency on job

In many workplace sexual harassment cases, the plaintiff put up with sexual harassment for a period of time because plaintiff was financially dependent on the job. During the deposition of the perpetrator, the plaintiff’s mental injury attorney may decide to ask questions regarding plaintiff’s financial dependency on the employment. Deposition questions may include:

• If plaintiff was a single mother, did perpetrator know of this fact?
• Did perpetrator believe that plaintiff was financially dependent on the job?
• Was perpetrator aware of any other sources of financial support which plaintiff may have had available to her?
• Was perpetrator under the impression that plaintiff could easily get another equivalent job with another company?
• If so, what job and what company?
• Did plaintiff express any financial neediness to defendant?
• Did perpetrator hold the belief that plaintiff enjoyed the job?

Defendant’s potential alibis

The plaintiff’s attorney should attempt to learn of potential alibis at the perpetrator’s deposition. It is better to learn this information during the deposition, rather than be surprised by it later on at trial. Deposition questions may include:

• Can perpetrator establish that he or she was somewhere other than in direct contact with plaintiff at the time of each incident of alleged harassment?
• How can perpetrator establish his or her alibi as to each incident?
• Is perpetrator aware of any documents or evidence that would establish perpetrator’s alibi?
• Are there any witnesses who would establish perpetrator’s alibi?
• If so, who are the witnesses and where are they located or how can they be found, and what does perpetrator believe they will testify to?

Defendant’s claim that sexual contact was consensual

To be sexual harassment, the perpetrator’s conduct must be “unwelcome.” Frequently a perpetrator will admit to a sexual relationship of some kind with plaintiff, but claim it was a mutually consensual relationship. Deposition questions regarding the issue of consent may include:

• Did perpetrator believe that any alleged sexual comments or behavior towards plaintiff were welcomed or consensual?
• On what basis does perpetrator believe that his or her actions towards plaintiff were welcomed or consensual?
• Did plaintiff ever resist any of perpetrator’s advances?
• Did plaintiff ever indicate to perpetrator that any of his or her contacts or comments were unwelcome?
• Did plaintiff ever say no to any of perpetrator’s actions or comments?
• Is perpetrator aware of any witnesses to the allegedly consensual comments or conduct?
• Is perpetrator aware of any evidence, such as e-mails or letters from plaintiff, which would indicate that the relationship was consensual?
• Is perpetrator aware of any witnesses who would indicate that plaintiff was attracted to defendant?
• Is perpetrator aware of any documents which would indicate that plaintiff was attracted to perpetrator?
• What actions by plaintiff led perpetrator to believe that plaintiff was attracted to perpetrator?
• Were comments made by plaintiff which led perpetrator to believe that plaintiff was attracted to perpetrator? What were they? Who heard them?
• Does the company have any anti-fraternization policy? If so what was the policy?
• Was perpetrator aware of any anti-fraternization policy at the time?
• If so, did perpetrator believe that he or she was breaking the policy when having the relationship with plaintiff?
• Does the company have any policy prohibiting romantic or sexual involvement between supervisors and subordinates?
• Does the company have any policy suggesting the impropriety of sexual contacts between supervisors and subordinates?
• Had anybody at the company advised perpetrator to not enter into romantic or sexual relationships with subordinates?
• Even if the sexual relationships started off being consensual, was there ever a point when plaintiff made any statements or took any action to indicate that he or she was no longer interested in the relationship?
• If so, did perpetrator continue to pursue plaintiff after those statements?
• Did perpetrator believe that he or she was risking his or her job by entering into the sexual relationship with plaintiff?
• If so, why did perpetrator take the risk?
• Did perpetrator attempt to hide the sexual relationship with plaintiff from people at work?
• Did perpetrator ever tell anyone, inside or outside of the company, about the sexual relationship? If so, who?
• Did perpetrator tell plaintiff not to inform anybody at work about the relationship?
• Did perpetrator attempt to consult with anybody in human resources or in management about the appropriateness of a relationship with a co-employee or subordinate?
• If so, whom? When? And what was the result of that consultation?

Pressuring plaintiff to engage in sex

Deposition questions may include:

• Does perpetrator admit to entering into a sexual relationship with plaintiff?
• What was the timing of the sexual relationship in terms of plaintiff being hired, promoted or maintaining a job while others were being laid off?
• Did perpetrator indicate to plaintiff that it would in any way benefit plaintiff’s career with the company to become sexually or romantically involved with perpetrator?
• Did perpetrator have the authority to hire, promote, demote or lay off plaintiff?
• Did perpetrator have authority to recommend that plaintiff be hired, promoted, demoted or laid off?
• Did perpetrator have the ability to protect plaintiff’s job?
• Did perpetrator have the ability to make plaintiff’s job harder or easier?
• Did perpetrator enter into any other sexual relationships with employees of the company?
• If so, what was the relationship between the timing of the sexual relationship and the promotion, demotion, lay off or voluntary leaving of the job of the other employee?

In a workplace sexual harassment case, the deposition of the perpetrator can be critical. During the perpetrator’s deposition, a knowledgeable and experienced plaintiff’s sexual harassment attorney will ask questions to uncover all the facts, establish the key evidence supporting the plaintiff’s case and reveal all the weaknesses in the defense case.