Supervisor Rapes Employee. Damages Reduced Because Employee Was Also a Prostitute!
This is wild! An employer was sued for sexual harassment. The allegation was based upon facts that included the supervisor telling the plaintiff that he could save her job if she “f****d” (I am quoting here!) him and then proceeded to rape her. As a result, the employee sued the company which is obviously not surprising. This case was not looking good in terms of damages. The employer initially did not have a lot of options, other than to hope their insurance company was going to write the check.
Then, out of the blue, the employer received information that the employee “might” have held a side job as a “prostitute.” Now, let’s understand that the information didn’t excuse or defend the supervisor’s actions (which are beyond deplorable) but it did provide an opportunity to lessen the sting of the plaintiff’s damage claim.
Armed with this knowledge, the employer served discovery seeking the nature and extent of the plaintiff’s activity as a prostitute/escort. Do you think the court approved the discovery request? It did! The case was in federal court and the plaintiff had requested damages that included lost wages and damages for emotional distress. The court held that the evidence about the wages Plaintiff may have earned as an escort would be relevant to calculate the damages if the plaintiff were successful in her case.
As a result, the Court allowed limited discovery, through a reopened deposition and interrogatories, to review: (1) the general nature of the escort services Plaintiff had offered or performed in the past five years; (2) the frequency with which she had performed those services; (3) her income from those services; and (4) any medical or psychological treatment she had received related either to her sexual assault or to other sexual encounters.
The bad news is there are bad managers and supervisors who engaged in sexual harassment and the employer has to buy their way out of it. The issue of damages should always be considered. Be proactive to determine if there are any offsets. In this case, the settlement did not throw the employer into bankruptcy. The message here is simple, just remember it is important to do everything you can to lessen the potential pool of damages available to the plaintiff. In this case, the mitigation of the damages came in the form of the plaintiff’s other “work.” Don’t give up hope, even in the face of difficult cases.
