This evening, three individuals lost their jobs – through reassignment or termination – because they truthfully testified under oath in a congressional hearing regarding their knowledge of unlawful behavior. While the law recognizes that termination because of testimony about illegal activity is unlawful, sometimes, the law doesn’t have a good remedy.
For example, a woman is sexually assaulted at work. She reports the assault, and the bad actor is arrested and terminated. If the bad actor was a co-worker with no supervisory responsibilities or prior history of assault, the woman doesn’t have a claim against the employer regardless of how egregious the assault was. She could possibly have a workers’ compensation claim, but no claim for harassment due to the affirmative defense the employer would likely use to its advantage.
Another, a black man is forced to resign after his employer did nothing to stop near-constant harassing conduct. He finds a better paying job right away, so he has no wage loss damages whatsoever. He may have some emotional distress damages, but he never saw a therapist, has no medical records establishing severe emotional distress, and is sleeping well now. When plaintiff lawyers meet with him and evaluate whether to take his case, they decide his damages are not sufficient to cover their costs given it’s highly unlikely that they will get through trial. So, for business reason, they don’t take his case as many others like them.
Yet, one more. Ninety women have come forward to tell their stories of Harvey Weinstein. Yet, only a few have claims within the statute of limitations and have convinced prosecutors to try him for his sexual misconduct. Others did not bring claims within the statute of limitations of the few civil claims they may claim. For most women, there is no recourse.
So, yes. Sometimes, the law doesn’t have an appropriate remedy. Sometimes, it just plain sucks. If you’d like it not to suck, vote, talk with your legislators, and remember to vote.