Subpoenas in Sexual Harassment Cases

Question

My former co-worker filed a sexual harassment case against my current employer. I received a subpoena to testify at trial. I was not close with my former co-worker and knew little about what happened between the former employee and my boss. I am afraid for the future of my employment if I testify.

Am I allowed to decline to appear as required by the court order?

Answer

Probably not. You will not likely be able to decline to appear and testify in the sexual harassment case. Unlike an acquaintance's invitation to a dinner party, a subpoena is a court order. It's from the government and requires you to show up and tell the truth in the employment case.

But, if testifying per the subpoena would implicate you in a crime, or your testimony would fall under another legal privilege, like doctor-patient or attorney-client confidentiality, you may refuse to testify.

Even if you can't get out of testifying (or can't quash the subpoena), you only have to testify about the truth you know. That's it.

You're probably not an expert in labor law, discrimination claims, sexual harassment, or discrimination cases. So, they won't ask you to decide whether your former co-worker has a valid sexual harassment case or whether there was a wrongful termination or a hostile work environment. They won't ask you whether the former co-worker experienced emotional distress. That's not your job.

Instead, they will likely ask you to provide your good faith recollection of a particular incident you saw. If you can't remember the incident, you must state that fact. You leave the nuances of employment law to the employment lawyers in the civil action.

For example, the sexual harassment case alleges that your boss made unwanted advances to the former co-worker. You get subpoenaed to testify about an alleged incident in the copy room a year and a half ago. So, you are only supposed to talk about that one incident. You should testify as much if your memory is not good or you can't clearly remember what happened.

If you feel uncomfortable responding to a subpoena without the legal advice of an attorney, you can proceed without an attorney. Or, you can hire a lawyer and their services if that makes you feel more comfortable.

If a subpoena calls for you to bring in documents or talk about something that may get you in trouble with the law, seriously consider at least talking with a legal professional. This is for your protection. But, in many circumstances where you have nothing to risk, hiring an attorney may be unnecessary.

How Does a Typical Sexual Harassment Claim Lawsuit Proceed?

Sexual harassment in the workplace happens when a person can no longer perform their job due to inappropriate behavior. A manager could imply that performing sexual favors will result in a better position. Sexual harassment can also affect applicants. For example, a department manager may imply that the applicant must perform sexual favors as a condition of employment. Unlike sexual assault, sexual harassment can take subtle forms.

Laws Prohibiting Sexual Harassment

State law and federal law prohibit sexual harassment. Besides sexual harassment, an employee has other legal protections.

The law protects an employee if they are a victim of any discrimination based on:

• Race
• Color
• Gender
• Age
• Religion
• National origin
• Disability
• Other protected category

On a discrimination claim or a claim for sexual harassment, the first step is trying to resolve the claim with the employer's internal procedures. Usually, the employee's human resources department is an excellent place to start.

If the matter doesn't get resolved with the employer, then the employee must file a charge of discrimination. Current or former employees may file a charge of discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC) handles most federal employment discrimination claims. It handles charges of prohibited employment practices.

After you file a charge with the EEOC, the case proceeds through investigation and possibly mediation. Before filing a lawsuit in federal court, you must have a Notice of Right to Sue from the EEOC. If you do not go through the EEOC process, you can't go to the district court to file a lawsuit, no matter how strong your evidence of discrimination.

Laws Prohibiting Employment Discrimination

The EEOC enforces several statutes, including:

• The Civil Rights Act of 1964 (Title VII)
• Civil Rights Act of 1991
• The Equal Pay Act of 1963
• The Age Discrimination in Employment Act (ADEA)
• The Americans with Disabilities Act (ADA)
• The Family and Medical Leave Act (FMLA), enforced by the U.S. Department of Labor

While the EEOC enforces several laws prohibiting discrimination, some state laws also address employment discrimination laws. They can provide even greater protections against discrimination.

State Laws Prohibiting Discrimination

In the landmark Supreme Court decision, Bostock v. Clayton County, 140 S.Ct. 1731 (2020), the Supreme Court ruled that unlawful discrimination based on sex includes discrimination based on sexual orientation and gender identity.

This means Title VII protects millions of LGBTQ+ Americans from workplace discrimination. Employers who discriminate against employees based on gender identity or sexual orientation can face civil rights lawsuits under the Supreme Court decision.

Before the decision, enforcement of laws was subject to interpretation by different courts. For example, you could have a different outcome in New York, California, Maine, or Michigan federal courts. You could even have different interpretations between district courts within the same state. For example, the outcome of a case could be different in a district court in Los Angeles or San Francisco.

Need to Contact an Employment Lawyer?

If you need to discuss an employment law situation with an attorney, don't delay. Contact an employment law attorney in your area today for a consultation.