Where’s Waldo? She’s Teaching You a Lesson On the High Cost of Sexual Harassment

While employed as an electrical line worker for Consumers Energy Company from 2001 through 2005, Theresa Waldo claimed that she suffered the following incidents of sexual harassment, about which she complained to her supervisor, union rep, and HR manager, each of whom allegedly ignored her:

1. She was repeatedly called derogatory and demeaning names, such as “bitch” and “wench.”
2. Coworkers threw her purse out of a work truck and into the dirt, telling her that “there were no purses allowed in these trucks.” When she responded by carrying a smaller purse in her pocket, she was called a “dike.”
3. Her coworkers refused to let her travel to a bathroom, instead telling her that if she “wanted to work a man’s job,” she had “to pee like a man.”
4. Coworkers locked her in a porta-potty with duct tape.
5. Coworkers isolated her at work sites by excluding her from lunch trips and forcing her to walk instead of riding in trucks with the male employees.
6. There were sexually explicit pictures on the work trucks.

Based on the foregoing, a jury awarded Waldo $400,000 in compensatory damages and $7,500,000 in punitive damages on her sexual harassment claim. Applying Title VII’s damage caps, the trial judge reduced those awards to a combined $300,000. In addition to the capped damage award, the judge also awarded Waldo $684,506 in attorney’s fees, which the 6th Circuit affirmed.

Who wins these cases? According to Judge Sutton’s dissenting opinion, it’s the lawyers, not the litigants:

I join all sections of the majority’s opinion save one: its decision to uphold the district court’s award of $684,506 in attorney’s fees—all but $1,000 of the fees requested by Waldo’s attorney without any additional reduction for time or rate, including for all work incurred to lose the first jury trial, all work incurred to lose six of the seven claims (four of them state law claims) and for all work incurred to win $300,000 in the second jury trial. One can be forgiven for thinking that Waldo’s two attorneys, not Waldo, were the true winners. This is good work if you can get it.

Harassment takes a toll. It exacts a high emotional cost on the victim. It exacts a steep legal cost on the company defending a lawsuit that can be salacious and unpopular. Yet, as this case illustrates, the people that often win are the lawyers. It may sound odd for a lawyer to argue against litigation. Yet, as I’ve heard one of my partners espouse more than once, “When you’re litigating you’re losing.” This case is the perfect example. From start to finish, Theresa Waldo spent more than 8 years of her life (from June 2005 until August 2013) litigating. For that time and aggravation, not to mention the on-the-job harassment that she suffered, she was awarded $300,000. Her lawyers, on the other hand, pocketed more than double that amount.

Who really won, and what does this case teach us about the benefit of evaluating the risk of cases and resolving those that have merit.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com. You can also follow Jon on Twitter @jonhyman.