The Takeaway: Kesha’s Sexual Harassment Lawsuit

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Singer/songwriter Kesha has been in a fight for the last couple of years trying to free herself of her recording contract with Sony Music because of an alleged sexually abusive relationship with her longtime producer, Lukasz Gottwald (aka Dr. Luke). The fight has been taking place in the legal system as well as in public, where hundreds of thousands of supporters have joined the #FreeKesha movement on Twitter and through online petitions, urging Sony to end its contract with the singer to allow her to move on and begin recording music again. Despite the outpouring of support, Kesha’s legal case has suffered a series of setbacks recently with a New York Supreme Court judge denying her the ability to get out of her recording contract and dismissing her claims against Dr. Luke and Sony in New York. Kesha’s legal options are not spent at this point, though. She still has a pending case in California that could now go forward and she could appeal the New York Supreme Court’s dismissal.

Regardless of the eventual outcome of her high profile case, Kesha’s claims can be relatable for many women in the workplace. In her lawsuit against Sony and Dr. Luke, she alleged a history of sexual assault and intimidation by her producer that has left her unable to work with him or her label any more. This environment allegedly left Kesha scared for herself and her career and thus reluctant to report the abuse to anyone. Though the New York court may not have found in Kesha’s favor, her allegations shed light on a broader set of questions for victims of sexual harassment in the workplace. We’ll discuss the options employees have to stop sexual harassment at work and ultimately get out of a poisonous employment relationship if necessary.

Report Sexual Harassment

Kesha alleges the incidents of sexual assault and harassment by her producer started ten years ago, though she did not file her original lawsuit until 2014. A victim’s reluctance to step forward with their claim is certainly understandable. The harasser can be intimidating both mentally and physically and the employee could have legitimate concerns about retaliation by their employer up to and including termination. However, delaying reporting harassment can have a significant impact on your ability to not only stop the harassment but recover any damages you may have suffered. In general, the closer to the actual harassment your claim is, the fresher the events will be in your mind and the minds of any witnesses. Also, if you choose to pursue a legal claim for sexual harassment, your claim will be subject to statutes of limitations, or deadlines, that you might miss if you wait too long to speak up. One of the reasons cited by the New York court for dismissing Kesha’s claims was the statute of limitations.

Many employers have a process for employees to report sexual harassment, which we encourage employees to follow. A responsible employer will take a sexual harassment claim seriously and investigate it without bias and with the intent of stopping any illegal behavior as quickly as possible. Where it finds sexual harassment occurred, the employer should also take all necessary steps to repair the damage done to the victim and ensure the harassment does not continue, including terminating the harasser where warranted.

Understand Your Legal Options

If your employer fails to adequately address your sexual harassment claim, you’re going to need legal help. We suggest you reach out to a lawyer as soon as possible, even if your employer is investigating your claim, to ensure that you know about all of your legal options and that you are fully protected.

When an employer fails to address a victim’s sexual harassment claims, the victim can feel trapped. Know, however that an experienced sexual harassment attorney can help you get out of a harassing work environment and recover damages you’ve suffered, even when your employer has failed to help. Kesha filed a lawsuit not only against her alleged abuser but also against her record label seeking to end her recording contract early because of the alleged sexual abuse she suffered. Though Kesha’s relationship with Sony Music is not an employment relationship, her legal claim does provide an example of what an employee in a similar situation might seek in a lawsuit if their employer has not addressed their sexual harassment claim.

Victims of sexual harassment at work can seek injunctive relief from courts as part of the remedy for the discrimination they suffered. The injunctive relief could include orders as broad as prohibiting an employer from engaging in further sexual harassment. Also, most employees are considered “at will” employees who can resign for any reason or no reason at all, some employees are subject to an employment contract that dictates the terms under which they can resign from their job. If you do happen to be working under such a contract and are a victim of sexual harassment, you could seek a court order allowing you to terminate the contract early. This option may not be available in every instance, but an experienced lawyer can help explain your remedies and pursue them for you where it makes sense. To learn more about a discrimination victim’s legal remedies, you can read our prior blog post entitled “What Are My Remedies if I Sue for Discrimination at My Job?”

Contact Us

If you’ve been the victim of sexual abuse or harassment at work and would like to talk with someone about your claims and the remedies available to you, please contact Eisenberg & Baum. We can help you determine the best approach for your claim and help you understand how you can put an end to the harassment while limiting any damage to your career. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also seek to become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Statute of Limitations for Sexual Harassment Claims

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If you’ve been the victim of sexual harassment, you might be hesitant to raise the issue at work or pursue a legal claim. Speaking up against your harasser can be intimidating and, even though retaliation is illegal, you might have legitimate concerns about facing reprisals from your employer. There are very good reasons for speaking up, though, not the least of which is to put an end to illegal harassment. From a legal standpoint, you should also be aware that you only have a certain amount of time to raise your sexual harassment claim. If you wait too long, it may be too late to file a legal claim.

In this posting, we’ll talk about the time limits, or “Statutes of Limitations,” for filing sexual harassment claims at the federal level as well as in New York State and New York City. We’ll also talk about what happens if you miss those deadlines. If you’d like to understand more about how the statute of limitations applies to a claim you’re considering, please contact Eisenberg & Baum.

Filing Claims with Federal and State Administrative Agencies

Sexual harassment is a form of gender discrimination and is prohibited under Title VII of the federal Civil Rights Act of 1964 as well as the New York State Human Rights Law. New York City has also adopted its own law prohibiting sexual harassment. Each of these laws is enforced by a designated government agency: the Equal Employment Opportunity Commission (EEOC) for the federal law, the New York State Division of Human Rights for New York state law, and the New York City Commission on Human Rights for New York City’s law. A victim of sexual harassment has the option of filing an administrative claim with one of these agencies, depending on where the harassment occurred, but must be aware of time limits in place with each agency.

EEOC Claims

Sexual harassment victims can pursue a Title VII claim by filing a “Charge of Discrimination” with the EEOC. Where, as in New York, there is a state or local administrative agency that enforces a similar state or local law, sexual harassment charges must generally be filed with the EEOC within 300 calendar days of the date the harassment occurred. The 300 days is calculated including weekends and holidays, though the final day of the time period is pushed to the closest business day if it would otherwise fall on a weekend or holiday. The EEOC also notes that they generally will not extend this deadline while you attempt to resolve your complaint through your employer’s internal grievance process. So, even if your employer is already investigating your complaint, it is still very important that you reach out to an attorney to consider your potential EEOC charge because the statute of limitations may already be running.

New York State and New York City Administrative Claims

The New York State Division of Human Rights and New York City Commission on Human Rights have slightly longer deadlines for submitting sexual harassment claims under the laws they help enforce. You have a full year from the date of the event of harassment to file a complaint with either of these agencies.

Filing Claims in Court

Victims of sexual harassment can also pursue their claims in federal or state court, where another set of deadlines applies depending on whether you’re pursuing your claim under federal or state law.

Federal Cases

In order to bring a lawsuit for violation of Title VII of the Civil Rights Act of 1964, you must first file a charge with the EEOC. Assuming you met the deadline requirement for filing an EEOC charge we discussed above, the EEOC will investigate your claim, attempt to mediate a resolution in some instances, and typically issue you a “Notice of Right to Sue” after completing its process. If you want to go forward with a lawsuit at that point, you must file it within 90 days of receiving the Notice of Right to Sue from the EEOC.

New York Cases

Unlike a federal claim, you do not have to first file a complaint with a state or local enforcement agency before filing a lawsuit based on New York law. The statute of limitations for filing a sexual harassment lawsuit under New York State law and New York City law is the same: you have three years from the date of the harassment. This longer window of time can be a benefit to those victims who may have missed the deadline for filing a harassment complaint with one of the administrative enforcement agencies.

How Do I Calculate My Deadline if There Were Multiple Instances of Harassment?

Your deadline for filing an administrative complaint or a lawsuit is typically calculated from the date the sexual harassment occurred. Often times, though, sexual harassment is a recurring problem that occurs over a period of time. In those cases, your deadline for filing may be calculated from the last instance of harassment but to be safe, we calendar the deadline from the date of the first instance of harassment.

Don’t Wait, Get Legal Help

Whatever venue you choose, missing your filing deadline could result in your losing the ability to recover damages for your sexual harassment claim. As a victim of sexual harassment in New York, you have several options for pursuing your claim, so even if you have missed one deadline for filing a claim, it’s possible you still have the ability to pursue your claim with another agency or in court. You may also have other legal claims you can pursue, which may be subject to different statutes of limitations.

Given the relatively short deadlines victims of sexual harassment can have in filing claims (particularly with administrative enforcement agencies), the complexity of calculating those deadlines and the various venues in which victims can pursue their claims, we recommend sexual harassment victims contact an attorney as soon as possible after being harassed to understand their legal options and make a fully informed decision on how they should pursue their claim. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases in New York and are ready to help you with your claim. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

How Can I Protect Myself from a Hostile Work Environment?

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Having to face the challenge of going to work each day in a hostile work environment can take a toll on you. Your work product, health and personal relationships can suffer when you are the target of harassment at work. You shouldn’t have to worry about jokes, slurs, touching and other unwanted conduct on top of your job duties. So how can you protect yourself from a hostile environment at work? Fundamentally, you should know that it’s your employer’s responsibility to create and maintain a workplace free from harassment, and it should never be considered the victim’s responsibility to avoid illegal harassment. However, there are some steps we recommend that can empower you to minimize the chance of a hostile work environment, and even if one exists, that will help you deal with it quickly and effectively.

If you’d like to talk with someone about your own hostile work environment claim, contact Eisenberg & Baum. We have a group of very experienced employment discrimination attorneys who can help you understand your claim and advise you of your rights under the law.

Know Your Rights

The first step to protection as an employee is knowing your rights under the law. We’ve spent a lot of time on our blog talking about employment discrimination and the idea of the hostile work environment. A “hostile work environment” is a specific type of employment discrimination claim under federal and state law, and it is created when you experience unwelcome conduct that is so severe or pervasive it affects the terms of your employment. We commonly think of a hostile work environment in terms of sexual harassment in which co-workers or supervisors subjecting an employee to repeated unwanted sexual conduct, including inappropriate comments, pictures and touching. However, a hostile work environment can be based on a number of different legally protected characteristics, not just gender.

Harassment at WorkUnder federal law, employees are protected from discrimination based on their race, color, national origin, gender, pregnancy, age, religion, disability, and genetic information. State and local laws in your area can protect you based on additional characteristics. For example, in New York City employers are prohibited from discriminating against an employee on similar grounds as recognized under federal law as well as sexual orientation, marital status, gender identity, arrest and conviction record, military status or service, observance of Sabbath, political activities, unemployment status, and status as a victim of domestic violence. To learn more about hostile work environments, read our prior post on “What Is a Hostile Work Environment.”

Discrimination Policies and Training

One of the most common and easiest things an employer can do to help prevent discrimination in the workplace is to adopt a policy against discrimination and a thorough process for reporting and investigating claims of discrimination, then train employees and management on the subject. If you notice your employer does not have these policies and processes in place or what they do have does not sufficiently address workplace discrimination, we recommend you talk with your employer. A strong set of policies and training can help educate all employees about what is and is not appropriate conduct at work and reduce instances of harassment and discrimination. Having an explicit procedure for reporting and investigating discrimination claims encourages victims to speak up when they have a complaint and can show that the employer takes such complaints seriously and responds with action when needed. When you contribute to a better set of policies and procedures at work, you not only help yourself but your co-workers, managers and employer. Try talking with your supervisor or if you’re uncomfortable talking with your supervisor, try another member of management or a human resources team member.

Confront, Report and Document

If you are already experiencing harassing behavior that is disrupting your ability work, it’s time to take action. If you’re comfortable with the idea, let the harasser or harassers know clearly and directly that you want them to stop what they’re doing. Whether it’s a supervisor who is belittling you because of your age or a group of co-workers who like to share stories about their sexual experiences in the open, let them know that their behavior is making you uncomfortable and you want them to stop. If you are afraid to confront your harasser directly, maybe because they’ve physically threatened you, then we encourage you to talk with your supervisor or human resources contact. Even if you’re not directly affected by harassing conduct at work, if you witness it, say something. This is your chance to help change the culture at your job. By reporting harassing conduct at work, you can protect the victim and everybody else at work, including yourself, from future harassment.

In addition to reporting any instances of harassment, there are other steps you can take at work to protect yourself when you’re in the midst of a hostile work environment. You can start making sure that your story is heard and supported by having co-workers around you when you encounter your harasser. Your harasser might be less bold around other people, and if they’re not, you will at least have witnesses to their conduct. Also, you can begin taking notes of your interactions with your harasser. Make sure you’re as detailed as possible in describing when, where and how your encounters with your harasser happened, and take the notes as close as possible to each event so that your memory is still fresh. These notes can help in your employer’s investigation and in any future legal action you may have to take.

Finally, we don’t recommend retaliating against your harasser. This could cloud your employer’s investigation or a court’s determination of your original claim and potentially subject you to liability. Use the resources you have at work and under the law to report and stop the discriminatory conduct against you.

Contact an Attorney

If you find your employer isn’t appropriately responding to your complaints, contact an attorney. An experienced employment discrimination lawyer can help you get the resolution you need, whether that requires filing a charge with the Equal Employment Opportunity Commission or a lawsuit in federal or state court. A lawyer can help advise you of your legal rights and options as a victim of workplace discrimination. Eisenberg & Baum’s employment discrimination attorneys have decades of experience handling hostile work environment and other employment discrimination claims, and we encourage you to contact us for a free initial consultation. For employment discrimination and retaliation cases, we bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Sexual Harassment and Racial Discrimination Lawsuit Against McDonald’s

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Last year, McDonald’s and one of its franchisees faced an employment discrimination lawsuit that may be a sign of things to come. The lawsuit, brought by employees of McDonald’s franchises in Virginia, claimed both the franchisor and the franchisee were liable for alleged race and gender discrimination committed by supervisors at the restaurants. While the case settled, it along with recent labor law developments provide an interesting current look at employment discrimination cases in the fast food franchise business.

We’ll discuss the allegations in the recent discrimination lawsuit against McDonald’s and the changing landscape of franchisor liability for the employment actions of franchisees, specifically in the context of violations of anti-discrimination laws. If you’d like to talk with an attorney about your own employment discrimination claim, please contact Eisenberg & Baum. We have a group of employment discrimination attorneys with years of experience handling discrimination claims.

The Allegations of Employment Discrimination Against McDonald’s

Eleven former employees brought the employment discrimination case against McDonald’s and its franchisee, Soweva Co., in federal court in Virginia. The legal basis for their claim was Title VII of the federal Civil Rights Act of 1964, which prohibits discrimination against employees based on their sex, race, color, national origin, or religion. The allegations in the McDonald’s case included both race and sex discrimination claims.

Racial Discrimination

The former employees in the case were all either African-American or Hispanic. The group alleged they’d been discriminated against on the basis of their race, having been harassed and wrongfully terminated on that basis. Please check out our prior blog posts on harassment and wrongful termination for more information about those types of claims.

The harassing conduct allegedly engaged in by the employees’ supervisors included offensive jokes, racial slurs, and a different disciplinary standard than their white counterparts. The employees alleged that, ultimately, the franchise owner decided to decrease the number of African Americans working at his restaurants and targeted them in a mass termination that impacted mostly African American employees. The employees say that, when asked why they were being fired, the owner explained they “didn’t fit the profile” he wanted.

Sexual Harassment

In addition to their racial discrimination allegations, the former employees claimed that their supervisors had also engaged in activity that constituted sexual harassment. Sexual harassment is a form of gender discrimination prohibited under Title VII. For a broader discussion of what constitutes sexual harassment, you can read our prior blog post on how to identify when you have a sexual harassment claim.

Among other allegations, the former McDonald’s employees claimed that supervisors at their workplace made inappropriate comments about employees’ bodies, sent and showed employees inappropriate pictures, touched female employees on their legs and buttocks, and attempted to solicit sexual activity with employees.

Holding a Franchisor Liable for Employment Discrimination

McDonald’s operates under a franchise business model, meaning that the vast majority of McDonald’s restaurants are not actually owned by McDonald’s USA, the franchisor, but by independent franchisees. Many other fast-food restaurant chains, like Subway, Wendy’s, Jack in the Box and Taco Bell, work under a similar model. For many years, franchisors have seen the franchise model as a way to guard against liability for employment law claims under the argument that the franchisee is truly responsible for employment decisions and matters. While this has been accepted in many labor and employment law cases, there has also been an exception for those situations where the franchisor and franchisee are seen as “joint employers” of an employee. Typically, for a franchisor to be considered a joint employer, they would need to have exercised some direct control over the day-to-day operations of the franchisee.

In the McDonald’s case, the plaintiffs sought to hold both the franchisor, McDonald’s Corp. and McDonald’s USA, and franchisee, Soweva Co., accountable for the alleged discrimination the plaintiffs suffered at work. To bring the McDonald’s corporate entity in, they argued that the company had the right to control operations at all of its restaurants through its franchise agreement and its business manuals. According to the plaintiffs, the McDonald’s corporate entity directs everything from how franchisees spend their advertising dollars to how they manage, train and supervise their employees. McDonald’s manuals also contain corporate policies and processes on discrimination and sexual harassment.

The parties to the McDonald’s lawsuit settled the case before it went to trial and the details of the settlement were not made public, so we won’t know if the plaintiffs’ argument for holding the McDonald’s franchisor entity liable would have been successful. However, recent developments in the area of labor law seem to indicate that the standard for holding franchisors liable as joint employers may be expanding in the favor of employees. In August 2015, the National Labor Relations Board issued a ruling in Browning-Ferris Industries of California, Inc. that created a new standard for the joint employer theory of liability in the context of unfair labor practices. The prior standard required an entity to take actual direct action over a worker to be considered a joint employer, while the new standard expands joint-employer status to entities that have indirect control or an unexercised right of control over a worker.

The ruling in Browning-Ferris did not directly apply to franchisors or to employment discrimination claims, but there is reason to believe that the ruling could be used in those contexts. The NLRB is currently in a fight with McDonald’s over whether it should be responsible for labor violations at independently owned franchises. Also, the Equal Employment Opportunity Commission, the federal agency charged with enforcing federal employment discrimination laws, sided with the NLRB’s position in Browning-Ferris noting that the NLRB’s standards can influence the judicial interpretation of joint employment in the discrimination context. The Browning-Ferris ruling is now being appealed and Congress is considering a new law that would overturn the ruling. Whether
franchisors like McDonald’s will be held increasingly responsible for employment law violations at the franchise level remains to be seen.

Who Should Be Responsible for Your Discrimination Claim?

If you’ve been the victim of discrimination and have questions about who should be responsible and what types of legal claims you can bring, we suggest you to contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim and the best way to pursue it. Eisenberg & Baum is ready and able to help you with your discrimination claim, and we encourage you to contact us for a free initial consultation.Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we likely can help no matter where you are.

The Sexual Harassment Case Against the University of Tennessee

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Peyton Manning’s name has been in the news recently for reasons other than his football team’s Super Bowl win. You may have heard about a recent lawsuit filed against the University of Tennessee for allegedly creating a campus culture that tolerated sexual violence, specifically violence committed by male athletes against female students. The lawsuit includes allegations that the school has a history of sexual harassment and assault dating back to the mid-1990s and references an incident from that time involving Manning, who was the quarterback of the Tennessee football team. The lawsuit comes at a time when sexual harassment and violence on college campuses has received heightened attention nationally, with President Obama launching the “It’s On Us” campaign in 2014 to end sexual assault on campuses.

In today’s blog post, we’ll talk about the allegations in the lawsuit against the University of Tennessee as well as the legal grounds that can be used to hold colleges accountable for systemic issues that contribute to and enable sexual harassment and assault on their campuses.

Title IX Claims Against The University of Tennessee

Sexual Harassment LawsuitA group of six female former students of the University of Tennessee filed the case against the university in federal court last month. Two more former students have since joined the lawsuit. The primary basis for their lawsuit is that the university violated Title IX of the Education Amendments of 1972 (“Title IX”) by creating a hostile environment that allowed for multiple sexual assaults to occur and were indifferent and unreasonable in responding to sexual assault claims by victims.

What is Title IX?

Title IX is a federal law that was enacted in 1972 to prohibit sex discrimination in education. The law applies to any educational program that receives federal funding, from elementary schools to colleges. The impact of the law has been far reaching. It has famously opened the doors to equal participation in sports for girls and women, allowed for women to have equal access to college and graduate school programs, and required schools to provide equal treatment of students who are pregnant or parenting. Title IX also prohibits sexual harassment against students as part of the overall prohibition on sex discrimination.

Sexual harassment of a student under Title IX is very similar to sexual harassment of an employee, which we’ve discussed in prior blog posts. Under Title IX, sexual harassment consists of unwelcome conduct of a sexual nature that creates a hostile environment by interfering with the victim’s ability to participate in school activities. The hostile environment concept is like the hostile work environment we’ve talked about in prior posts regarding workplace sexual harassment. In the context of Title IX, though, a school can be held liable for damages only if it has notice of the harassing activity and responds with deliberate indifference.

Student Allegations

The former University of Tennessee students claim that the University of Tennessee violated Title IX because it knew of and acted with deliberate indifference to acts of sexual harassment of its students. To set the background for the incidents of rape that the former students allegedly endured, they described a history of harassment at the school going back more than a decade.

Among the historical incidents cited was a 1996 incident involving Peyton Manning in which the former Tennessee quarterback allegedly placed his rectum and testicles on a trainer’s face while the trainer examined his foot. The incident was settled out of court, and Manning, for his part, denies the allegations. Yet, the incident has been raised 20 years later as just one of many examples of sexual assault and harassment that male athletes at the University of Tennessee have allegedly engaged in over that time.

Seven of the eight unnamed former students in the case claim to have been sexually assaulted or raped in separate incidents, primarily by male athletes at the school, and the eighth student claims to have been retaliated against because of her friendship with one of the alleged victims. The students allege that the university, including its chancellor, athletics director and head football coach, had actual notice of the long history of sexual harassment and violence on its campus and its indifference to those past incidents created an environment that enabled continued acts of harassment and violence, like those endured by the plaintiffs. The students also allege that the university had a disciplinary process that favored the athletes charged with rape and that the university actively stepped in to delay some proceedings, allowing the accused students in those cases to transfer or graduate before facing discipline.

The former students seek damages including reimbursement for tuition, pain and suffering, and other expenses the plaintiffs incurred as a result of the alleged sexual assaults. They also seek injunctive relief that would, among other things, require the university to institute a comprehensive sexual harassment policy and change its disciplinary process in sexual assault cases.

The University of Tennessee’s Response

The University of Tennessee has not yet filed a formal response with the court, but it has released a public statement regarding the allegations through its legal counsel. In the statement, the school defends its process for investigating and resolving sexual assault complaints and claims it “has devoted significant time and energy to provide a safe environment for our students, to educate and raise awareness about sexual assault, and to encourage students to come forward and report sexual assault.“ All 16 of the university’s head coaches for both men’s and women’s teams have also come forward to praise the environment at their school, without addressing the specifics of the Title IX lawsuit.

Incidents on Other Campuses

As the University of Tennessee noted in its public statement, it is one of many college campuses facing the challenge of sexual assault. A recent survey conducted by the Association of American Universities across 27 university campuses revealed 23% of female respondents had experienced some form of unwanted sexual contact while they’d been enrolled in school. The issue of sexual assault and sexual harassment is clearly not confined to Knoxville, Tennessee. Where schools have contributed to this problem by turning the other way or favoring a particular group of students, like athletes, in sexual harassment and assault claims, Title IX can be the tool to hold those schools accountable. Likewise, in states like New York, there may be state and local laws that can provide students with additional protection from sexual harassment and discrimination. New York State and New York City each hav
e a Human Rights Law that prohibits sex discrimination in places of “public accommodation,” which can include schools.

If you’ve been the victim of sexual harassment or assault as a student or an employee, we encourage you to report the incident to your school or employer and contact an attorney to discuss your case. Eisenberg & Baum’s attorneys have decades of experience handling sexual harassment cases in New York and can help you understand the merits of your claim and advise you on your next steps. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win or settle your case.

Justice Scalia’s Legacy on Employment Discrimination Claims and What His Departure Means

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News of Justice Antonin Scalia’s death and the vacancy it has left on the Supreme Court has reverberated throughout the country over the last several weeks. That it happened during an election year has only heightened the attention given to the impact of his sudden absence and his potential replacement. Justice Scalia was known for using the doctrine of “originalism” to interpret the Constitution and for writing colorful, blunt opinions. His impact on areas of the law from the Voting Rights Act to the Second Amendment has been well-established over nearly three decades of service on the Supreme Court.

In this posting, we’ll talk about Justice Scalia’s legacy in the area of employment discrimination law and what the future may hold depending on his replacement. This isn’t intended to be a deep scholarly analysis for our fellow employment lawyers, but a general overview for anyone interested in Justice Scalia’s impact on employment discrimination cases and how his departure might affect similar cases in the future.

Justice Scalia’s Mixed Record on Employment Discrimination

Most people who follow the Supreme Court considered Justice Scalia to be one of the more conservative justices on the Court during his time. Scalia was appointed by Ronald Reagan and joined in many rulings lauded by conservatives over the last several decades. But his impact on employment discrimination law cannot be easily painted as conservative or pro-business. If you look at some of the employment discrimination cases decided by the Court over Justice Scalia’s tenure, he has been on both sides of opinions affecting employment discrimination law.

On one hand, Justice Scalia opposed expansion of sexual harassment liability and the ability of employees to raise large-scale class action discrimination lawsuits. In Burlington Industries, Inc. v. Ellerth, the majority of the Court found that an employer can be liable for a hostile work environment created by sexually harassing conduct of a supervisor, regardless of whether any adverse action was taken against the victim and whether the employer was directly responsible for the supervisor’s actions. Justice Scalia dissented from the majority opinion in Burlington, arguing that the majority created the rule for employer liability from nothing and that a supervisor’s harassing conduct should not be automatically attributed to their employer. Justice Scalia also wrote the majority opinion in Wal-Mart Stores v. Dukes, which denied a small group of female employees of the retailer the right to file a class action gender discrimination lawsuit on behalf of all female employees on the basis that the group lacked a common complaint. The burden fell, instead, on individual female employees to file their own lawsuits against one of the largest companies in the world in order to recover for any gender discrimination they experienced.

In other discrimination cases, however, Scalia sided with the employee, writing two opinions that supported broad views of anti-discrimination law. In 2011, Justice Scalia wrote an opinion in the case of Thompson v. North American Stainless that allowed family and friends of an alleged victim of discrimination to bring a retaliation lawsuit against their mutual employer. Most recently, Justice Scalia wrote the opinion in EEOC v. Abercrombie & Fitch Stores, a case in which the employer, Abercrombie, refused to hire a woman because she wore a head scarf. While the applicant claimed she’d been discriminated against based on her religion, Abercrombie claimed the head scarf violated its dress code and it had no reason to know that the applicant wore it for religious reasons. Scalia’s opinion supported the applicant by holding that she did not have to specifically request an accommodation to wear her head scarf in order to be protected from religious discrimination by a prospective employer.

Impact of Justice Scalia’s Absence on Employment Discrimination Cases

Justice Scalia’s absence from the Court has been the subject of a lot of media coverage. In the short term, how will it impact Supreme Court decisions? Will President Obama nominate a replacement, and if so, will the Republican-controlled Senate approve? What will the implications be if a Democrat or Republican appoints a replacement? We can only speak in general terms of the long-term impact of Justice Scalia’s absence from the Court. For the time being, while the Court is one justice down, its members are evenly split between four Republican appointees and four Democratic appointees. In those cases where the court is evenly divided and unable to come to a majority decision, the lower appellate court decision will stand. This could have implications on current employment law cases before the court, including Green v. Brennan, which concerns how long an employee has to raise a constructive discharge claim.

Republican DemocratMany Republican Senators have already indicated they would block any nominee sent to them by President Obama, so it’s highly likely the Court will stay at eight members until the next president takes office. If a Democrat were to win the election, the expectation is that they would appoint a more liberal judge to the Court. According to the New York Times, a liberal appointee would likely shift the Court’s overall ideology to a position it hasn’t been in for 50 years. In terms of employment discrimination cases, this could mean the new justice and the majority of the court would read the law more broadly and in favor of aggrieved employees. If, on the other hand, a Republican wins the presidential election, they’ll be more likely to appoint a conservative judge that would maintain the status quo. However, given Justice Scalia’s mixed opinions in past employment discrimination cases, it’s difficult to say that a new Republican-appointed justice would keep the status quo.

With a stalemate between the Senate and President looking likely, we’ll simply need to wait and see who will take the empty seat at the Court and how the future of not only employment discrimination cases, but a broad range of issues could be affected.

If you’ve been discriminated against at work, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

 

The “Elephant in the Valley” – Gender Discrimination and Sexual Harassment in Silicon Valley

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As we discussed in last week’s blog post, the Pao v. Kleiner Perkins gender discrimination lawsuit has opened up a broader conversation about the issues women face in the tech industry. Inspired by this conversation, a group of women with experience working in the industry decided to put some real data to the anecdotal evidence of widespread sexism and discrimination. The group recently published the results of the survey online under the title “Elephant in the Valley,” and the results largely substantiate what was becoming clear in the aftermath of the Pao lawsuit: Ellen Pao’s case was illustrative of a much larger issue of gender discrimination in tech.

In this posting we’ll talk about the aftermath of the Pao case, the Elephant in the Valley survey, and what it means for women working in the tech industry and in the broader workforce. If you’ve been discriminated against at work based on your gender and would like to understand more about your legal rights and options, please contact Eisenberg & Baum. We have a group of experienced employment discrimination attorneys who can explain your rights as a victim of discrimination and help you decide the best way to address your particular claim.

The Pao Effect

Even before the jury reached a verdict in the Pao case, Ellen Pao’s story and lawsuit were having an effect outside of just the case itself. The case was very high profile, covered by major media outlets and the subject of broad discussion on social media. Soon after Pao filed her lawsuit, two other women filed suits alleging gender discrimination by major tech companies. Chia Hong filed a lawsuit against her former employer, Facebook, and Tina Huang filed a class action lawsuit against her former employer, Twitter. The fact that these cases came so soon after Pao only magnified the issue of harassment and unfair treatment of women in the male-dominated tech sector.

Though Pao ultimately lost her case, Fortune reported that, based on interviews with several Silicon Valley area plaintiffs attorneys, there was an appreciable “Pao effect” that continued even after the loss. Some lawyers saw a dramatic increase in the number of women coming forward with discrimination complaints, while others observed that gender discrimination clients seemed more emboldened and determined to shine a light on illegal practices at their job. Pao’s single case seems to have encouraged more women to come forward with their own discrimination complaints and has sparked a much broader conversation about gender discrimination in the tech industry .

Elephant in the Valley Survey and Findings

Inspired by this new discussion, a group of women with ties to the tech industry, including Trae Vassallo, a witness for Ellen Pao in her case against Kleiner Perkins, began a project called the Elephant in the Valley to gather hard data on what was becoming an apparent trend of gender discrimination across an entire business sector. Together, the team created a survey that they distributed to over 200 women working in a wide range of tech businesses. The women surveyed generally had at least 10 years of work experience, with many holding high positions of power at tech and venture capital companies. The vast majority of the women polled were from the San Francisco Bay and Silicon Valley area.

What the survey revealed was an astonishing amount of respondents who had experienced sexual harassment and other forms of gender bias and discrimination at work. Here are a few of the key results from the survey:

  • 60% of respondents reported having been subjected to unwanted sexual advances at work
  • 60% of women who reported sexual harassment to their employer were dissatisfied with the action taken
  • 39% of respondents who said they’d been sexually harassed did nothing because they were afraid it would have a negative impact on their career
  • 90% of respondents reported having witnessed some sort of sexist behavior at offsite events and conferences
  • 84% reported having been told they were too aggressive at work

On top of the survey data, the Elephant in the Valley also collected women’s stories and posted some of them on its website. Here are just a few of the stories provided:

  • “The first time I travelled with a new CEO he made an advance. I turned him down. After that, I was never asked to travel with him again. This impacted my ability to do my job.”
  • “When I am with a male colleague who reports to me the default is for people tend to defer to him assuming I work for him. As soon as they know that is not true they look to me. I have also had male colleagues say to me that once a woman is pregnant she is irrelevant.
  • “There is a VC networking group called “alpha” as in male, of which I am the only female member and was “invited” only after specifically asking. VCs have fly-ins, fly-fishing trips etc to which only guys are invited.”

What’s Next?

The point of the Elephant in the Valley was to continue to raise awareness and further the discussion of the issues of gender bias and discrimination in the tech industry.

This exercise isn’t merely to empower those women who may be the direct victims of the types of discrimination and inequity revealed by the survey, but to make an entire industry, especially men, aware of issues that are significantly impacting a significant portion of its workforce and leadership. What comes of this new focus on the treatment of women in the tech industry and beyond will depend on everyone involved. Tech employers can no longer turn a blind eye to the issues of gender bias, harassment and discrimination at work. The issue is too well known and its victims now too empowered for their concerns to be ignored. The victims themselves have had the door opened for them by plaintiffs like Ellen Pao and can take encouragement from the Elephant in the Valley project. If you have been subjected to sexual advances at work or left out of meetings or events because you’re a woman, you now know that you are not alone and you do not have to endure this kind of behavior. We encourage you to report incidents of harassment and discrimination to your employer and contact an attorney.

Eisenberg & Baum’s attorneys have decades of experience handling gender discrimination and sexual harassment cases. We offer free initial consultations for employment discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

The Pao v. Kleiner Perkins Gender Discrimination Lawsuit

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If you follow tech industry news (or news about high profile employment discrimination cases, like we do), you may be aware of a recent case from California that highlights what many observers believe is a deeper discrimination issue in the tech industry. In Pao v. Kleiner Perkins, a female employee of a Silicon Valley venture capital firm alleged a widespread and long-term pattern of gender discrimination that led to her being denied promotions and compensation and ultimately cost her her job. The venture capital firm defended its practices and ultimately prevailed, but the case has opened a broader discussion about the role and treatment of women in Silicon Valley and other areas. In this posting, we’ll talk specifically about the Pao case and its outcome. Next week, we’ll follow up with a broader discussion of sexual harassment and gender discrimination in Silicon Valley.

The Background of Pao v. Kleiner Perkins

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins matter. Ellen Pao, the plaintiff in Pao v. Kleiner Perkins, obtained degrees from Princeton as well as Harvard’s law and business schools. Before joining Kleiner Perkins Caufield & Byers, she worked for seven years in the tech industry, including jobs at Microsoft and BEA Systems. Kleiner Perkins is one of the largest venture capital firms in Silicon Valley. They’ve provided financial backing for some of the biggest names in technology, including Facebook and Google.

When a position as chief of staff for one of Kleiner Perkins’ managing partners opened up in 2005, Pao applied for and got the job. Less than a year after starting the job, Pao alleges she was pursued by a male colleague and eventually engaged in a relationship with him. According to Pao, she did not let the relationship go on very long before she broke it off. It was after she broke off the brief relationship that Pao alleged the discrimination against her began. First, according to Pao, the colleague with whom she engaged in the relationship began leaving her out of meetings, emails and other business decisions. Starting in 2007, Pao began reporting the alleged retaliation and discrimination by her colleague to her manager and other leaders of the firm. Pao alleged that despite her complaint, her male colleague was not disciplined but was eventually promoted to senior partner while she was encouraged to drop the complaint.

For the next several years, Pao says she continued to complain about the conduct of her colleague, now senior manager, whom she claimed continued to retaliate against her for breaking off their past relationship. Meanwhile, she says she started to receive poor performance reviews, which directly impacted her compensation and ability to get promoted. Apart from the continued issues with her male colleague, Pao also claimed she’d received a book of poetry as a Valentine’s gift from a senior partner that included sexual drawings and content. She also alleged that she and other female members of the firm were left out of multiple dinners involving firm partners, with one partner explaining that the women would be “buzz kills.” After years of internally reporting what she believed were discriminatory and retaliatory acts by her male colleague and the firm leadership, Pao decided to sue Kleiner Perkins in May 2012. In October of the same year, Kleiner Perkins fired Pao.

In response to Pao’s allegations, Kleiner Perkins argued that it was more committed to diversity than its fellow venture capital firms, citing statistics that showed it employed a greater proportion of women than other firms. As for Pao’s failure to be promoted, Kleiner Perkins argued she was not alone, and many other junior partners, including male partners, had also been passed over for promotion during the same time. According to Kleiner Perkins, it had given Pao a number of opportunities and tools to succeed at the firm. The firm used the performance reviews, among other evidence, to argue that Pao was a difficult co-worker who was ultimately unable to make it as a senior partner in venture capital.

Pao’s Legal Claims

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins claims. In her lawsuit, which Pao brought in California state court, Pao claimed Kleiner Perkins violated several provisions of the California Fair Employment & Housing Act. The provisions are similar to those found under the federal Civil Rights Act and other state laws designed to protect workers from discrimination based on gender and other protected characteristics such as race, religion and ethnicity.

Specifically, Pao alleged three different, but related violations of the California law:

  1. Under California law, it is illegal for an employer to discriminate against an employee based on their gender in matters of compensation and other employment terms. According to Pao, Kleiner Perkins denied her a promotion and compensation, and ultimately fired her, because of her gender.
  2. California law also prohibits an employer from retaliating against an employee because they’ve filed a discrimination complaint. Pao claimed that she was denied a promotion, compensation and other opportunities at work because she had complained about discriminatory conduct by her male colleague and others at the firm. She also alleged that her firing was in retaliation for filing a lawsuit against Kleiner Perkins.
  3. Finally, California law requires employers to take all reasonable steps to prevent gender discrimination and harassment. According to Pao, her internal complaints of discrimination and retaliation were met with inaction at best as her male colleague was allowed to discriminate against her for years.

Based on these alleged violations, Pao sought $16 million in damages, including damages for back pay and lost future earnings. The trial began in February 2015.

The Outcome of Pao v. Kleiner Perkins

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins outcome.The jury in the case deliberated for two days before returning a verdict in Kleiner Perkins’ favor on all counts. Nine of the twelve jurors (the minimum required to reach a verdict in a civil case in California) believed Kleiner Perkins’ version of events, that Pao’s own performance led to her inability to get promoted and eventually her termination and that she had not been retaliated against for raising discrimination issues.

Though Pao lost, many believe her lawsuit has shined a light on a long overlooked issue in Silicon Valley and the tech industry: the underrepresentation and unequal treatment of women. We’ll talk more about these issues and the impact of Pao’s case beyond the verdict in next week’s blog post.

If you’ve been discriminated against at work because of your gender, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so yo
u won’t have to pay us unless we win your case.

Retaliation for Reporting Misconduct at Work

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Finding the courage to oppose discrimination at your job can be hard. To do that with the threat of being fired or demoted hanging over you can make even the most courageous employee reconsider whether they should speak up. Unfortunately, it’s not uncommon for an employer to retaliate against an employee who reports or speaks out against discrimination at their job. That’s why anti-discrimination laws like the federal Civil Rights Act and the Americans with Disabilities Act and the New York State Human Rights Law have built in protections for people who report discrimination in the workplace.

So how do you know if you’ve been wrongfully retaliated against at work and what can you do about it? In this posting, we’ll talk about some of the legal protections against retaliation as well as your rights and legal options if you believe you’ve been retaliated against. If you’d like to talk about your own retaliation case, please contact us. We have decades of experience helping victims of employment discrimination and retaliation recover damages and other relief from their employers.

What Is Retaliation by My Employer?

You likely know that it is against the law for an employer to take adverse action against an employee based on certain characteristics like gender, age, race or religion. Many of the same laws that protect individuals from workplace discrimination also protect employees from retaliation for opposing unlawful discrimination. We’ve talked before about what is retaliation in the context of a sexual harassment lawsuit, but the idea is similar across any type of discrimination claim. Generally, in order to demonstrate you’ve been retaliated against at work, you must show three things:

  1. You are a covered individual under the law,
  2. You engaged in a protected activity, and
  3. Your employer took some adverse employment action against you because of that activity.

Let’s take a look at each of these elements in more detail.

Who Are Covered Individuals?

The protection against retaliation given by federal and New York anti-discrimination laws applies not only to the employee who claims they’ve been discriminated against but anyone who may participate in a discrimination investigation or proceeding. So, even if you’re a witness to a discrimination case, you are protected under the law. The protections against retaliation in anti-discrimination laws apply only to individuals taking part in an investigation or claim of discrimination that is covered under that law. So, a witness to a sexual harassment claim would be protected from retaliation under state and federal laws, but an individual who reported theft of office supplies would not be covered.

What Is Protected Activity?

Individuals can be protected from retaliation for a number of different activities related to a discrimination claim. Reporting a discrimination claim and other opposition to discrimination qualifies as protected activity as long as you have a reasonable, good-faith belief that the activity you’re opposing is actually unlawful discrimination. It doesn’t matter what the final outcome of the discrimination claim is. You can’t be retaliated against if you opposed discrimination on a good faith belief that it was unlawful. If you’d like to learn more about what qualifies as unlawful discrimination, check out our discussion of the topic in our prior post on wrongful termination. Even you weren’t the one reporting the discrimination, simply participating in a discrimination investigation or claim is considered protected activity under the law. So, serving as a witness or providing a statement during an internal investigation would be protected.

What Is Adverse Employment Action?

The final key element of a retaliation claim is that your employer must have taken some adverse employment action against you because of your involvement in the discrimination case. The first thing that may come to mind when you read “adverse employment action” is getting fired, and certainly if your employer fires you because you’ve participated in a discrimination claim or investigation, that would qualify as adverse employment action. In the broader sense, though, adverse employment actions could include any number of attempts by your employer to discourage you from participating in the discrimination case. For example, if your employer demotes you, gives you a bad performance review, cuts your benefits, or threatens you with these types of actions, it could be considered retaliation if it is tied to your participation in a discrimination investigation or case. The action must have some significance to your employment terms, though, and cannot be a simple slight or off-hand remark that has no effect on your employment.

What Do I Do if I’ve Been Retaliated Against?

If you believe your employer retaliated against you because you reported or took part in a discrimination claim, you should contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim, the best way to pursue it, and the protections you have as a complainant. Depending on the facts of your case, you may have the option of filing a lawsuit or bringing a claim with an administrative agency like the EEOC, the New York State Division of Human Rights or the New York City Commission on Human Rights. You could be entitled to a variety of remedies, from getting your job back to recovering lost wages.

Contact Eisenberg & Baum for a free initial consultation on your case. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.

When Does Sexual Harassment at Work Become a Crime?

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Sexual harassment can have devastating effects on an employee. It can affect the employee’s performance at work, their ability to move up through their organization or even keep their job, and their overall mental and physical well-being. We’ve talked in a number of previous posts about how to recognize when you have a sexual harassment claim at work and what types of remedies you can expect. Sexual harassment is illegal and can be the basis for a civil lawsuit by an employee to regain lost benefits and pay and monetarily punish a responsible employer.

While employees have the ability to seek relief and damages for sexual harassment in the workplace, the laws providing for these remedies do not make sexual harassment a crime. That’s not to say, however, that the harassing conduct cannot also qualify as a crime. In this posting, we’ll talk about some of the situations in which sexual harassment can also be a crime and what a victim should do in those situations.

What Is Sexual Harassment?

Sexual harassment is a form of gender discrimination prohibited under both Title VII of the federal Civil Rights Act of 1964 as well as the New York Human Rights Law. New York City has also adopted its own law prohibiting sexual harassment. The definition of sexual harassment across these laws is very similar: sexual harassment consists of unwelcome sexual conduct that either creates a hostile work environment or is used a basis for employment decisions.

Sexual conduct, for purposes of sexual harassment law, can include both verbal and physical actions, from requests for sexual favors to unwanted touching and sexual acts. For a more detailed discussion of what is sexual harassment, read our prior posting, “How Do I Know if I Have a Sexual Harassment Claim in New York?”

When Is Sexual Harassment Also a Crime?

In some instances, such as rape, it may be obvious to a victim of sexual harassment that the conduct they’ve endured is not only illegal workplace discrimination but a crime. In other situations, such as when an employee has been verbally harassed, it may not be as clear. Whether conduct at work is considered a crime depends on the local criminal laws where you live and whether the conduct meets the definition of a crime under those laws. Below we outline a few examples of the types of crimes under New York law that can be violated when an employee is sexually harassed at work. These crimes can vary from basic misdemeanors to violent felonies, depending on the severity. As a result, the punishments could range from a simple fine to many years in prison.

Rape, Sexual Abuse and Forcible Touching

You likely know that forced sexual intercourse without a person’s consent is considered rape and is a crime. The law also criminalizes other types of sexual contact with a person without their consent. Under New York law, the crime of sexual abuse can include any touching of a person’s intimate body parts without their consent, whether that touching is over or under the victim’s clothing. Similarly, forcible touching is a crime when the perpetrator intentionally and forcibly touches the victim for their own gratification or to degrade or abuse the victim. Again, the touching can be over or under the victim’s clothing. In the context of sexual harassment in the workplace, criminal conduct could therefore include pinching or groping, as well as more severe non-consensual sexual acts, by a co-worker or supervisor.

Assault

The physical contact between a harasser and their victim may not always be of a sexual nature. In some instances, harassing co-workers or supervisors can seek to intimidate their victims through pushing, hitting, or other physical conduct. When an employee is injured as a result of this conduct, the harasser can commit the crime of assault under New York law. Assault can come in varying degrees of severity depending on the intent of the assailant, whether they used a weapon, and how badly the victim was injured.

Menacing

Even if a victim is not injured by their harasser, if the harasser physically threatened them, their actions could be criminal in New York. The crime of menacing, under New York law, occurs when a person intentionally places their victim in fear of imminent injury or death by physically threatening the victim. The menacing act must be physical, not just verbal, and could include showing a weapon or other threatening gestures.

Stalking

Sexual harassment often involves a pattern of behavior, like repeated phone calls or texts. This type of repetitive conduct can fit with the definition of criminal stalking. Stalking, under New York law, is when a person intentionally engages in a course of conduct that makes the victim reasonably fear for their safety or the safety of someone else. The conduct behind stalking might include physically following the victim, repeated unwanted calls or messages, or following the victim’s activities online. Even seemingly innocent gestures like sending a gift could be part of a stalking case if the overall context of the harasser’s behavior would reasonably lead to the victim fearing for their safety.

Unlawful Imprisonment

Unlawful imprisonment, or false imprisonment, may not sound like it can apply to workplace sexual harassment, but in fact there are some situations where it can. Simply put, unlawful imprisonment is the restraint of another person. Specifically, under New York law, a person commits this offense when they intentionally restrict someone else’s movement in a way that substantially limits their liberty. The restriction could be either confining the victim or moving the victim from place to place. In the case of workplace sexual harassment, the harasser could intimidate their victim, either physically or verbally, into staying in a location like an office, a car, or hotel room in order to subject them to offensive conduct.

What To Do If You’ve Been the Victim of a Crime

If you believe you’ve been the victim of not only discrimination but criminal conduct and want to pursue charges, report it to your local police department immediately. Unlike a civil sexual harassment claim which you can pursue individually, the state is responsible for investigation and prosecuting criminal matters and will assist with your criminal claim. We also encourage you to contact Eisenberg & Baum if you need help understanding your legal rights and remedies as a victim of sexual harassment. Our attorneys have decades of experience handling sexual harassment cases in New York and are ready to help you with your claim. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.