Rights, consumers and government
How to Select a Sexual Harassment Attorney: A Step-by-Step Guide
The first question after workplace sexual harassment is not which lawyer has the best reviews. It is which legal system covers your job, because that decides your deadline, where you must file first, and what an attorney can recover for you. A private-sector employee, a federal employee, and an employee of a very small business can face different first steps under federal law, and state law can add coverage that federal law does not. Those differences also become the measure for comparing attorneys.
Step 1: Identify Which System Covers Your Job
Private, state, and local employers
Title VII of the Civil Rights Act of 1964, the federal employment discrimination statute, applies to an “employer,” defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year” (42 U.S.C. § 2000e). The same section excludes certain positions from the definition of “employee,” including “any person elected to public office” and certain appointees on the policy-making level.
If your employer has fewer than fifteen employees, Title VII may not apply, and state law becomes the main question (Step 3).
Federal employees
Federal employees follow a different first step. Under the federal sector rules, “an aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action” (29 CFR § 1614.105). The agency or the Commission “shall extend the 45-day time limit” in circumstances the regulation describes.
The difference is large. A private-sector employee may have 180 or 300 days to file a charge (Step 2). A federal employee who waits that long may already be outside the 45-day window to contact an agency counselor.
The regulation lists the grounds for extending the 45 days: the individual “was not notified of the time limits and was not otherwise aware of them,” did not know and reasonably should not have known that the matter occurred, was prevented “despite due diligence” by circumstances beyond his or her control, or “other reasons considered sufficient by the agency or the Commission” (29 CFR § 1614.105(a)(2)). An extension is a request with conditions, not a second deadline. If you are a federal employee past 45 days, ask an attorney at the first contact whether any of these grounds fits your facts, and how the firm would document it.
If the same allegation also creates a military criminal case. When the person accused is a service member, the conduct may also be charged under the Uniform Code of Military Justice; Article 120 covers “rape and sexual assault generally” (10 U.S.C. § 920). That case is separate from any employment claim, with different attorneys on each side, and the employment filing deadlines still have to be tracked on their own. A service member facing an Article 120 allegation needs military defense counsel; Joseph L. Jordan, Attorney at Law is one firm that describes that defense work on its Article 120 page.
What this step settles: which first filing applies to you and how long you have. Every attorney you consult should ask about your employer, its size, and whether you are a federal employee before discussing anything else.
Step 2: Know the Federal Deadlines and Their Starting Points
For employees covered by Title VII outside the federal sector, the statute sets the timing of the charge and of a later lawsuit:
| Event | Deadline | What starts it | Statute |
|---|---|---|---|
| Charge with the EEOC | "Within one hundred and eighty days" | "After the alleged unlawful employment practice occurred" | 42 U.S.C. § 2000e-5(e)(1) |
| Charge where a state or local agency proceeding was first instituted | "Within three hundred days" | "After the alleged unlawful employment practice occurred" | 42 U.S.C. § 2000e-5(e)(1) |
| Lawsuit after a notice of right to sue | "Within ninety days" | "After the giving of such notice" | 42 U.S.C. § 2000e-5(f)(1) |
Two points matter when choosing an attorney:
- Which period applies depends on your state’s agency. The 300-day period applies in the circumstances the statute describes involving a state or local agency with authority over the practice. Ask each attorney which period applies to you and why.
- The 90-day lawsuit period starts with a notice you receive. If you have already received a right-to-sue notice, bring it to the first consultation and say so at the start. That date controls the time left to file in court.
How these periods apply to harassment that continued over time is a question for the attorney. Ask which events in your history the attorney would treat as starting the clock.
Step 3: Check Whether State Law Reaches Your Employer
State law can cover employers that Title VII does not. California is an example: for purposes of its harassment provision, the Fair Employment and Housing Act defines “employer” as “any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract” (Cal. Gov. Code § 12940).
States differ. If you work in Georgia or another state, ask each attorney:
- Does any state law give me a claim beyond Title VII, and against which employers? The answer matters especially if your employer has fewer than fifteen employees.
- Does that state law have its own agency filing or deadline? A state claim can have timing rules separate from the EEOC charge.
An answer given only in terms of federal law leaves open whether state law adds or changes anything for you, so ask the state-law question again.
Step 4: Understand What the Statute Allows an Attorney to Recover
Title VII limits certain damages by employer size. Under 42 U.S.C. § 1981a(b)(3), the combined amount of compensatory damages for future pecuniary losses, “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses,” and punitive damages “shall not exceed, for each complaining party”:
| Employer size (in each of 20 or more calendar weeks) | Limit |
|---|---|
| More than 14 and fewer than 101 employees | $50,000 |
| More than 100 and fewer than 201 employees | $100,000 |
| More than 200 and fewer than 501 employees | $200,000 |
| More than 500 employees | $300,000 |
The statute also allows a court, “in its discretion,” to award “the prevailing party … a reasonable attorney’s fee (including expert fees) as part of the costs” (42 U.S.C. § 2000e-5(k)).
Three further provisions of the same section affect how a case is valued and tried:
- Back pay is outside the cap. “Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under” Title VII’s remedies section (§ 1981a(b)(2)). The cap applies to the categories in the table, not to back pay. Suppose an employee of a 120-person company has $40,000 in lost wages and also seeks damages for emotional distress and punitive damages. Under the table, the $100,000 limit applies to the emotional-distress and punitive damages combined; the $40,000 in back pay sits outside it.
- Punitive damages have a standard and an exception. A complaining party may recover punitive damages against a respondent “(other than a government, government agency or political subdivision)” on showing that the respondent acted “with malice or with reckless indifference” to federally protected rights, as the statute states (§ 1981a(b)(1)).
- The jury is not told the cap. When compensatory or punitive damages are sought, “any party may demand a trial by jury,” and “the court shall not inform the jury of the limitations described in subsection (b)(3)” (§ 1981a(c)).
For selection, these rules shape the attorney relationship in three ways:
- The cap affects how an attorney evaluates a case. The same facts can lead to different recoveries depending on employer size. Ask the attorney how the cap applies to your employer, how much of your claim is back pay outside the cap, and whether your employer is a government body to which the punitive damages exception applies.
- A fee award is separate from your damages. Ask how the fee agreement treats a court-awarded fee: whether it is credited against a contingency fee, added to it, or handled another way.
- State law can change the picture. If a state claim is available, ask whether it has different damages rules.
Step 5: Decide Who the Attorney Will Represent
Harassment cases can involve more than one person on your side and several on the other.
- If coworkers experienced the same conduct, ask whether the attorney would represent each of you separately or together, and what happens if your interests later differ. Joint representation can be efficient, and it can also limit what the attorney can do for any one of you.
- If you are a manager who received a complaint, your position differs from the person who complained. Ask whether the attorney represents employees bringing claims, employers responding to them, or both, and whether that creates any conflict.
- If the company’s human resources department or company counsel contacts you, ask them whom they represent, and ask your own attorney before giving a detailed statement.
Ask each attorney: whom will the engagement letter name as the client, and is the firm currently representing or advising your employer in any matter?
Step 6: Decide How to Handle Internal Reporting
Whether and how to report harassment internally before filing a charge is a decision with legal and practical consequences, and it depends on your employer’s policies and your facts. That decision is yours. What to ask:
- “Should I report internally before filing, and in what form?” Your employer’s policy and the record you will need later both bear on the answer.
- “What should I keep, and what should I not take from work?” The answer helps you separate documenting your own experience from taking employer documents or property.
- “If I am retaliated against after reporting, how does that change the plan?” Retaliation can change the claim, so the plan should account for it.
Step 7: Check Bar Status and Employment Claim Experience
License and status
Search the attorney in the bar directory of the state where you work. In Georgia, the State Bar publishes a member directory. The listing confirms the license and its status, and nothing about employment law or the EEOC process.
Ratings and awards
If an attorney cites a rating, a directory listing, or an award, ask who issued it and on what basis. A rating reflects what the issuing organization concluded under its own method, which is a different question from whether the attorney fits your claim.
Experience that matters for your claim
Useful experience is specific: harassment claims, the employer sector you work in (private, federal, state or local), and the stage your claim may reach. Ask how many harassment matters the attorney took through the EEOC process recently, how many reached a lawsuit, what his or her role was in each, and who at the firm would handle yours.
Step 8: Test Each Attorney on Your Facts
Practice varies, so the useful test is whether an answer is specific to you. Start with the path and the date: which filing path applies to you, what your deadline is, and which events in your history the attorney would treat as starting the clock. Questions about your employer, its size, and your status should come before the answer; 180 days quoted to a federal employee is the wrong clock.
Then ask whether the attorney sees a state-law claim alongside Title VII, and how the damages cap would apply to your employer. The second answer is also a test of candor. An explanation of the cap, and of how it affects the expected fee, tells you the limits of the claim before you sign rather than after.
Finally, ask about people and conflicts: who will handle your case day to day and appear at a mediation or in court, and whether the attorney or the firm represents your employer or anyone involved in your complaint. The conflict answer should come from a check the firm has actually run, not from memory.
Step 9: Read the Fee Agreement for an Employment Claim
Fee arrangements in harassment cases vary. Compare agreements on the points that change what you receive:
- How is a court-awarded fee under § 2000e-5(k) treated? Credited against the contingency fee, paid in addition, or handled another way.
- Does the percentage change at different stages, such as an agency resolution, a settlement after suit is filed, or a trial?
- Who pays case expenses, such as deposition and expert costs, and are they deducted before or after the fee is calculated?
- What happens if you decide not to proceed after the attorney has done work?
- What happens if you change attorneys?
Ask for a written example showing a hypothetical settlement, the fee, the expenses, and your net amount.
Step 10: Bring the Same Record to Every Meeting, and Compare
Bring a dated list of incidents, with who was involved, where it happened, and who saw or heard it; your employer’s name, its approximate number of employees, and whether it is a federal, state, or local agency; any messages, emails, or notes you created or received yourself; any internal complaint you made, with its date and any response; any EEOC, agency, or counselor paperwork, especially a notice of right to sue and the date you received it; and your employer’s harassment policy, if you have a copy you are permitted to keep. With the same record in front of every attorney, you can compare which deadline each one identifies.
Afterward, line up the answers: which system and deadline each attorney identified, including any federal-sector rule; whether each considered state law; how each explained the damages cap and fee awards; whom each would represent; and who would handle the case. Three questions should come up in every meeting, and if they do not, raise them yourself: whether you are a federal employee, because the 45-day counselor deadline expires long before 180 days; how many people your employer has, because Title VII coverage and the damages cap both depend on it; and whether you have received a right-to-sue notice, because a 90-day period may already be running. A promised result, before any evidence is reviewed, is a reason to keep looking.
The order of the comparison matters in harassment cases: the filing clock first, then coverage and remedies, then fit. The first two can end a claim; the third affects how the claim is run.
Legal disclaimer: This guide provides general information about federal workplace harassment law and selecting an attorney. It is not legal advice. Deadlines depend on your facts and your state; speak with a licensed attorney about your situation.