November 20, 2019 Book Review

Sexual Harassment and Retaliation: A Practical Handbook for Plaintiff and Defense, Roxella T. Cavazos and Sandra R. McCandless, Editors

Reviewed by Madeline Meacham

Harassment claims based on sex have changed. Harassment claims originally were relatively straightforward: quid pro quo harassment, where a benefit of employment is contingent on an employee consenting to unwelcome conduct, or hostile environment. This could be the stereotypical boss chasing an assistant around a desk, or a male coworker sabotaging equipment belonging to a female coworker to discourage her from persisting in a work environment that, historically, has been male dominated. Claims have evolved and now arise from incredibly varied and complex sets of facts.

#MeToo has changed our ideas about what the scope of unwelcome conduct should be. The courts will have to decide what actions along that spectrum of unwelcome conduct are or are not actionable. Employees’ expectations of investigations, and of the consequences that should be imposed when an allegation is confirmed, are higher than they were just a few years ago. The clients who are involved in claims, whichever side they are on, are shocked and angry and require extra patience and sensitivity from their attorneys. Usually, the employer’s entire workforce has been polarized, and that must be managed by attorneys as well.

Sexual Harassment and Retaliation: A Practical Handbook for Plaintiff and Defense can be an extremely useful resource in a very challenging area. I recommend it to all attorneys who practice employment law, as well as to managing partners in law firms. You simply never know when the issue of harassment is going to come up, and when it does happen, you don’t have a lot of time to get up to speed. The adequacy of the harassment prevention policy and investigation protocols that you have in place prior to a claim being made will be important factors in determining liability.

The book starts with an overview of gender harassment and retaliation claims under Title VII of the Civil Rights Act. It goes on to address every aspect of harassment claims, from the development of a harassment prevention policy to the conduct of an investigation in response to allegations of gender harassment and the litigation of such claims. The litigation section of the book is divided into separate chapters on various trial issues, from the point of view of plaintiffs and point of view of the defense.

The chapter on policies and investigations includes a model workplace harassment prevention policy and a complaint procedure. The investigation process is broken down step-by-step: selecting the team, obtaining and handling evidence, interviewing witnesses, documentation and decision-making, communicating results, and potential liability issues. Every facet of conducting investigations has been thoroughly addressed. The same scrupulousness is applied to other topics, including responding to administrative charges, employment practices liability insurance, arbitration, multi-plaintiff litigation and class actions, media issues, and changing juror attitudes and experience. Finally, subsequent chapters take the reader step-by-step through litigating an employment case, including pleading practice, evidentiary issues, and damages.

The handbook is written by a balanced mix of plaintiffs lawyers and defense lawyers for each chapter, all of whom have extensive experience in the practice of employment law.

Whether you are looking for something you can read cover-to-cover to get up to speed, or a reference guide to dip into when an issue arises in your employment practice that you haven’t encountered before, this is a book you will turn to again and again.

To order Sexual Harassment and Retaliation: A Practical Handbook for Plaintiff and Defense, go to www.americanbar.org/products/inv/book/358994102 or call 1-800-285-2221.

Regular price: $179.95; ABA Member price: $159.95; TIPS Member price: $143.95.

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Reviewed by Madeline Meacham

Madeline Meacham is of counsel at Halpern Meacham LLC in Boulder, Colorado, and a member of the TortSource editorial board. She may be reached at m.meacham@comcast.net.