AUGUST 2025 | 17 THE OKLAHOMA BAR JOURNAL This approach is particularly pertinent when the employer is not covered by Title VII due to size or when seeking to hold an individual perpetrator personally accountable. Including a TVPA count in a complaint can significantly alter the case’s dynamics, introducing the potential for uncapped damages and attorney fee recovery and exerting pressure on individual defendants beyond what Title VII claims typically achieve. Coordination with criminal authorities is also essential. Due to the mandatory stay provision under 18 U.S.C. §1595(b)(1), plaintiffs’ lawyers should assess whether law enforcement is investigating the matter. Filing a civil suit promptly could spur law enforcement interest; conversely, engaging with prosecutors first may better serve the client’s longterm interests. Notably, a stayed case is not a lost case – following a criminal conviction, many issues may be collaterally estopped in favor of the victim in the civil suit. Understanding potential defenses is equally important. Defense counsel should recognize that motions to dismiss wellpleaded TVPA claims are challenging if the facts allege coercion. However, arguments may be made regarding whether the alleged misconduct falls outside the TVPA’s scope, such as asserting that no “commercial sex act” was involved or that the plaintiff had feasible alternatives and was not truly compelled. These arguments hinge on specific facts. Consent obtained through coercion is not a valid defense under the TVPA, which explicitly targets situations where apparent consent is nullified by fear. Employers facing TVPA claims for a manager’s conduct may explore vicarious liability defenses, arguing that they did not “knowingly benefit” from a trafficking venture. Plaintiffs may counter that retaining a productive employee through illicit coercion constitutes a benefit to the enterprise. This area of law is developing, and Oklahoma courts have limited precedent, necessitating analogies from federal cases nationwide. Ethical and counseling considerations are also in play. Not every victim of sexual harassment will be comfortable labeling their experience as “trafficking” – a term with heavy connotations. It is critical to explain the options to clients: A Title VII claim can be pursued administratively and might settle quietly; a TVPA claim is a federal lawsuit alleging a form of modern slavery or sex trafficking. For some clients, particularly those who have suffered truly coercive abuse, framing it as trafficking can be empowering and just. For others, it might feel like overreach or attract unwanted attention. The client’s comfort level and goals should guide the decision. From a remedial perspective, the TVPA’s allowance of attorney fees and uncapped damages can also enable representation of clients whose cases might be economically unfeasible under Title VII alone, such as those with limited wage loss but significant emotional harm. LEVERAGING THE TVPA AS A STRATEGIC SUPPLEMENT IN WORKPLACE ABUSE CASES Oklahoma’s legal community should recognize the evolving landscape of sexual harassment law. The rise in sexual harassment charges – over 7,700 filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2023, a 25% increase from the prior year – indicates that victims are increasingly coming forward. In Oklahoma, numerous such charges are filed annually, and recent high-profile EEOC lawsuits highlight a persistent problem across industries. Title VII enforcement remains vital in addressing “ordinary” harassment cases. And in Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
RkJQdWJsaXNoZXIy OTk3MQ==