Subpoenas in Sexual Harassment Cases

Question

I have a former coworker that has filed a sexual harassment case against my current boss/employer, and I have been subpoena to testify at trial. I was not close with my former coworker and do not know much about what happened with my boss when she worked here. I am afraid for the future of my employment if I do testify. Am I allowed to decline to appear to testify as required of my by the subpoena?

Answer

In short, you most likely will not be able to decline to appear and testify in the sexual harassment case. Unlike an initiation to a dinner party from an old, strange friend that you don't really want to see again, a subpoena is a order from the government that actually requires you to show up and tell the truth, as you know it. However, if testifying per the subpoena would implicate you in a crime, or if your testimony would fall under another legal privilege, like doctor-patient or attorney-client confidentiality, you may refuse to testify.

However, even if you cannot get out of testifying, you are still only required to testify about the truth you know. You are probably not an expert in labor law, employee discrimination, or sexual harassment, so you should not be asked to decide whether your former coworker has a valid sexual harassment case against your boss. Instead, you will most likely be asked to tell your recollection of a certain incident at which you were present. If you cannot remember the incident, you are fully able (and even required) to say as much. For example, if the sexual harassment case alleges that your boss made unwanted advances onto your former coworker, and you are subpoenaed to testify about an alleged incident that occurred in the copy room a year and a half ago, you are only supposed to talk about that one incident. If your memory is not that good, or if you were so ill that day that you cannot remember clearly what happened, then you can, and should, testify as much.

If you feel uncomfortable responding to a subpoena without the advice of an attorney, you can certainly retain a lawyer and their services. If a subpoena calls for you to bring in documents, or talk about something that may get you in trouble with the law, then you may want to seriously consider at least talking with a legal professional. However, in many circumstances where you have nothing to risk, you may find it unnecessary to retain an attorney.