When we're defending our employer clients, we try to get most types of employee claims narrowed or dismissed using an arsenal of legal tactics.
Lawyer tricks, in jaded terms.
For example, say I'm defending a disability-discrimination claim. Here are the different arguments I can make to try to get the claim dismissed:
- the employee's not actually disabled
- her condition isn't serious enough to meet the disability threshold
- she's not "otherwise qualified" to perform her job
- she refuses to accept the reasonable accommodations my client's provided
- the accommodations needed to allow her to do the essential functions of her job are not reasonable
- she's already claimed elsewhere that she's totally disabled, meaning she can't work, period
As you can see, there are a number of arguments I can use in a legal motion to try to get the claim dismissed. They're not easy arguments — disability cases are very tricky — but they are arguments.
Sexual harassment is different. I have fewer arguments I can make. Once the employee clears the hurdle of showing that the conduct actually was sexual harassment — meaning that it was unwelcome sexual conduct at work — she's off to the races. The only remaining issues are questions of facts — "he said, she said." And questions of facts are decided at trial. Once a sexual-harassment case gets to trial, the employee has a solid chance of winning, and a probable six-figure payout if she does.
The smart employer has a serious antiharassment policy and regularly trains its employees and managers so they know what harassment is and how to prevent it. That's much more effective than lawyer tricks.