Sexual harassment in the workplace has continued to be a problem despite federal and state laws that make it illegal. In some cases, sexual harassment cases are litigated in court when employers fail to take action to stop the harassment. Employees are protected against sexual harassment by local, state, and federal laws as well as company policies. When sexual harassment cases are litigated, subpoenas are commonly issued by the government for witnesses and others to testify about their involvement in what happened. If you have received a subpoena for a sexual harassment case, here is some information you should know from the attorneys at Swartz Swidler.
Sexual Harassment Cases and How They Work
Workplace sexual harassment cases are filed when one or more people harass victims through unwanted, inappropriate, sexual, and provocative acts. Employees are protected against verbal and physical sexual harassment of any type. For inappropriate conduct to rise to the level of actionable sexual harassment, it must either be pervasive enough to create a hostile work environment or be severe. Sexual harassment also can occur as quid pro quo harassment in which a supervisor or manager requests sexual favors in exchange for job benefits.
The first step sexual harassment victims normally take is to address the problem with their companies’ human resources departments. The HR department will investigate the complaint and should take action to address it. However, if the HR department does not investigate the claim or do anything to end the harassment, a victim can file a sexual harassment charge with the Equal Employment Opportunity Commission (EEOC). The EEOC will then investigate the claim and determine whether it will litigate the matter on behalf of the victim or dismiss the harassment charge. The EEOC might also give the victim notice of his or her right to sue if the EEOC decides against prosecuting the case on the victim’s behalf. If a case is filed in court, witnesses will likely receive subpoenas to appear and testify about what they know about the claim of sexual harassment.
Understanding a Subpoena
Subpoenas are court orders requiring people to appear in court and testify about what they witnessed in different cases. Since a subpoena is a legal court order, you must appear if you are subpoenaed. However, there are a few exceptions under which you can decide not to appear.
If appearing in court and testifying would breach a different type of legal agreement, including a confidentiality agreement or something similar, you can decline. You can also refuse to testify if doing so could potentially implicate you in a criminal matter.
If neither of those exceptions applies, you must appear in court and give testimony about what you witnessed. You only have to testify about what you know to be true and not about anything else. You will not be asked to speculate or decide anything.
Certain types of information are privileged, meaning they do not have to be disclosed. Privilege laws apply to the confidentiality between different types of professionals and their clients or patients, including doctors, lawyers, psychologists, and others. Sexual assault victims’ advocates cannot be ordered to share information about their confidential conversations with their clients. However, there are some exceptions to this general rule, including court orders, mandated reporting, and when there is an imminent threat that the client will harm himself or herself or someone else. Victims’ advocates typically explain to new clients when they might be compelled to disclose information and what would occur if they are subpoenaed.
Employers must protect their employees’ privacy interests. This includes protecting your private information in your financial, medical, and personnel records. If an employer improperly discloses your private information without your authorization, it can be held liable. However, there are certain situations in which a competing interest will outweigh an employee’s privacy interest. If an employee files a lawsuit, he or she might waive his or her privacy rights to matters that are at issue in the case. This is because the defendant has the right to contest the plaintiff’s allegations. A subpoena that is issued for the records of an employee who is also a party to a sexual harassment lawsuit will raise fewer privacy concerns than one that is issued to get a third party’s personnel records.
If a company receives a subpoena for an employee’s records, the party that is subpoenaing the records must also notify the targeted employee. The subpoena to the company will also include proof that a notice was served on the employee so that the employee can ask the court to quash the subpoena. If the employee files a motion to quash, the company will receive a notice and will not disclose the records until the dispute is heard and decided. However, if no motion is filed by the date to comply, the company must produce the subpoenaed records.
Speak to Swartz Swidler
If you have received a subpoena to appear in a sexual harassment case or to produce records, you should speak to an experienced employment lawyer at Swartz Swidler. Call us today to schedule a consultation at 856-685-7420.