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Tennessee Law Punishes Victims of Sexual Harassment Who Do Not Win Legal Claims

Victims of sexual harassment are subjected to a power imbalance, particularly when they are suing the government, whether local, state or federal. As a result many states have enacted “fee shifting provisions.” Under these provisions, government wrongdoers are forced to pay a victim’s legal fees if they are found guilty of sexual harassment. These types of provisions incentivize victims to file lawsuits because victims know that if they are successful, they can recover the often substantial court costs of the lawsuit.  Further, these provisions sometimes put more money into the pockets of victims if the victims do not have to pay for the fees of their legal counsel.

Tennessee Passed an Opposite Fee-Shifting Provision

Tennessee recently passed a type of fee-shifting provision that accomplishes exactly the opposite objective. SB2377/HB1678 requires alleged victims of sexual abuse to pay the government’s legal fees if their lawsuit against the government is unsuccessful. Most shockingly, the legislation is not limited to claims that the court finds “frivolous” or “unfounded,” rather it applies no matter what the allegations are. For example, if a victim withdraws a lawsuit voluntarily because she runs out of funds to pay her attorney she would still be required to pay the government.

Tennessee Claims They Are Reimbursing Taxpayers

The creator of the bill, senate sponsor Mike Bell, claims that the bill is an effort to reimburse taxpayers for successfully litigating and defending frivolous lawsuits. The bill’s critics note that this is an obvious attempt to dissuade victims from filing lawsuits against the government. The Attorney General of Tennessee, Herbert Slatery, is a champion of these “reform” measures. His advocacy did not stop, even when he was tasked with investigating State Representative Jeremy Durham who was accused of sexually harassing three women who worked in the Tennessee state house. According to Slatery, the victims of sexual harassment should have “something at risk” when they file a lawsuit.

Tennessee’s victim shaming bill is disgraceful. This bill is a not so thinly veiled attempt to protect government officials from sexual harassment lawsuits. It is worth noting that the legislators who passed this bill would themselves be protected by this law. Government officials should be doing everything in their power to punish perpetrators of sexual abuse, not deter victims from filing lawsuits.

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