Should I Sue for Sexual Harassment in Federal or State Court?

When pursuing litigation, determining where to sue and the specific claims to bring is a fundamental step. Sometimes, circumstances such as a missed statute of limitations force plaintiffs to sue in one court over another. Other times, plaintiffs have the option to sue under federal or state law and have to decide which will be most advantageous to their case. Deciding isn’t always a straightforward task.

When it comes to sexual harassment claims, federal anti-discrimination law sets the baseline of legal rights and remedies. Some states have anti-discrimination laws that go beyond the federal baseline in one or more of the following ways:

• Give more time to file a claim
• Apply to more employers and employees
• Offer greater damages through a lawsuit.
• Provide more robust legal protections for victims of sexual harassment

“I spend a lot of time on the question of where to sue when helping clients since there are such distinct claims under federal and state law,” says Elizabeth Hanley, an employment and labor law attorney at Schroeter Goldmark & Bender in Seattle, Washington. She represents employees who have been sexually harassed or discriminated against in the workplace.

“A person with no legal background — even, to some extent, an attorney who isn’t focused in this area of law — wouldn’t be able to look at a sexual harassment claim in the employment context and be able to determine whether it goes in federal or state court.” In other words, it takes both expertise and experience to effectively handle sexual harassment lawsuits.

This article will discuss some of the key factors an attorney considers when deciding where to bring their client’s case. For legal help with your claim, reach out to an experienced sexual harassment lawyer.

What Is Sexual Harassment?

Sexual harassment is a form of sex discrimination under federal and state law. Generally speaking, it is any unwelcome physical or verbal behavior that is targeted at someone because of their sex, gender identity, or sexual orientation.

In the employment context, sexual harassment may come from supervisors as well as coworkers. Harassing behaviors include but aren’t limited to:

• Unwelcome sexual advances
• Requests for sexual favors
• Slurs or epithets
• Comments or jokes of a sexual nature
• Unwanted sexual contact or sexual assault
• Disparaging remarks about an individual’s gender or appearance

Learn more about filing a sexual harassment complaint with your human resources department.

What Are the Two Types of Workplace Sexual Harassment?

Title VII of the Civil Rights Act of 1964 is the primary federal law prohibiting discrimination on the basis of sex. As established by the U.S. Supreme Court, there are two basic forms of sexual harassment under Title VII:

1. Quid pro quo. Meaning “this for that” in Latin, quid pro quo sexual harassment occurs when someone in a position of authority, like a manager or supervisor, offers or implies certain benefits — such as getting hired or getting a raise or promotion — in exchange for sexual favors. Quid pro quo can also take the form of a threat to terminate or demote unless the employee engages in sexual activities.
2. Hostile work environment. A hostile work environment occurs when inappropriate behaviors or remarks of a sexual nature are so severe or pervasive that they create an offensive work environment.

Learn more about the types of workplace sexual harassment.

Deciding Where To File a Sexual Harassment Lawsuit

“If you’re a layperson Googling sexual harassment, a lot of times where you’ll land is Title VII,” says Hanley. And Title VII is an extremely important federal law. However, individuals may not realize that, depending on where they live, they have further legal options under state law.

For example, Hanley practices law in Washington state. She says that “there are a lot of good things about using Washington’s state law to address sexual harassment over federal law.” Here is a comparison of the two types of claims:

Title VII Caps Compensatory Damages

“Title VII usually provides fewer benefits than the Washington State Law Against Discrimination in a couple of ways,” says Hanley. “If you bring a Title VII sexual harassment claim in federal court, no matter what a jury awards, damages are capped at $300,000. If it’s a smaller employer, the cap is even lower.”

Why is the cap on damages a problem for plaintiffs? “The limit is really significant. The damages that people experience in sexual harassment cases — emotional distress, having been cut off from opportunities for advancement just because of who you are — are things that can have a lasting and very serious impact, amounting to far more than $300,000,” explains Hanley.

“Juries at the state level understand these costs. So, it may not be beneficial to bring a claim in federal court only using Title VII. It’s often going to be capped or cut off at $300,000.”

Title VII Has an Administrative Exhaustion Requirement

“The other issue with federal discrimination cases brought exclusively under Title VII is that you have an administrative exhaustion requirement,” says Hanley.

Administrative exhaustion means that before you can bring a Title VII lawsuit against your employer for sexual harassment, you have to file a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). You allege workplace discrimination in the complaint and ask the EEOC to take remedial action against your employer.

Upon receiving your complaint, the EEOC will investigate the situation. If the EEOC concludes that you have a claim under Title VII, it will issue a Right to Sue letter, allowing you to pursue a lawsuit.

Deadlines in Federal vs. State Complaints

“In most states, you only have 180 days from the date of the last act of sexual harassment to file with the EEOC,” says Hanley. In certain states, like Washington, the deadline extends up to 300 days

Unlike the relatively short filing deadlines under Title VII, “A state claim in Washington gives you up to three years to bring a claim — and you don’t need to pass through a federal or state agency before bringing the claim.”

Hanley adds another benefit of state court as compared to federal: “You have a unanimous jury requirement in federal court, whereas you only need 10 out of 12 jurors in your favor as a plaintiff in state court.”

Given the Benefits of State Law, Why Ever Sue Under Federal?

“In light of these advantages, you might be thinking, ‘Why don’t you just tell me directly to only file state court claims?’ Well, because that seemingly straightforward advice is also wrong in some circumstances,” says Hanley.

For one thing, not all states have anti-discrimination laws with advantages over federal law. Washington state, where Hanley practices, has robust civil rights laws, as do many other states across the country. However, you may find yourself living in a state where the remedies provided under federal law are the only recourse you have.

Beyond that, Hanley explains that sometimes you may get a cause finding from the EEOC, meaning the agency found cause to believe that discrimination or sexual harassment occurred — and this finding may be admissible in federal court. If this happens, “A good attorney may choose to have you file in federal court and bring state discrimination claims in addition. At least in the Ninth Circuit, the court has determined that general damages or emotional distress damages that would typically be capped at $300,000 under Title VII can pour over into your state claim as long as the jury finds for you on both your state and federal claims.”

Again, legal strategy is vitally important.

Find an Experienced Sexual Harassment Lawyer

If you think you have experienced sexual harassment in the workplace, consider reaching out to an employment lawyer with experience in sexual harassment cases.

Even more fundamentally, if you don’t exactly know if what you’ve experienced would count as sexual harassment under the law, but you feel uncomfortable or unsafe in your work environment, reach out to a lawyer for legal advice.

To begin your search for an experienced attorney in your area, visit the Super Lawyers’ directory of employment lawyers. For more information about this area of law, see our overviews on sexual harassment and employment law.