What if Your Boss Finds Out You Talked to a Sexual Harassment Attorney?

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If you are facing sexual harassment at work, you may feel torn between wanting to explore your legal options and not wanting your boss to find out you talked to a lawyer. You may be worried that you could be fired — or your work life could get worse — if your boss finds out you talked to a sexual harassment attorney. Find out what an attorney can do to protect your privacy and what you can do to protect yourself.

In this blog post, I will review attorneys’ professional responsibility of confidentiality, and what that means for employees facing sexual harassment. I will also explain how federal civil rights laws protect against retaliation. Finally, I’ll provide five tips to protect yourself from retaliation if you decide to talk to a sexual harassment attorney.

Sexual Harassment Attorneys Commit to Confidentiality

All lawyers are required to comply with professional responsibility rules designed to protect our clients from harm caused by our work. One key rule is attorney-client confidentiality. Every state’s language is slightly different, but generally speaking, this rule says attorneys may not reveal information relating to their representation of a client without the client’s consent. Lawyers are also required to take reasonable steps to prevent accidental disclosure of a client’s information.

Attorney-client confidentiality starts at the consultation. Even if we determine that you don’t have a claim, or you decide to proceed without us, it is our job to make sure your privacy is protected.

Sexual harassment lawyers take attorney-client confidentiality very seriously. We understand the sensitive nature of our work, and the possible effects of early disclosure. We will work with you to ensure that you are safe before your employer learns you have sought private legal advice.

Sexual Harassment Retaliation Is Illegal

Title VII of the Civil Rights Act says that sexual harassment at work is illegal. It also goes further to protect employees investigating possible sexual harassment claims by prohibiting retaliation. It is unlawful for an employer to punish job applicants or employees when they assert their rights under Title VII. Your employer may not retaliate you for any “protected activity” including:

  • Filing an internal complaint, union grievance, EEOC complaint or federal lawsuit
  • Participating in an employer or EEOC investigation as a party or witness
  • Communicating with a supervisor or manager about workplace harassment
  • Refusing to participate in harassment or discrimination
  • Resisting sexual advances or intervening to protect others
  • Asking about salary information

You are protected from retaliation even if it turns out you don’t have a valid sexual harassment claim. You employer could face charges for retaliating against you as long as you reasonably believed you were working to protect your rights or the rights of other employees to be free from discrimination. You could potentially be terminated or disciplined for unrelated reasons during an investigation, but your employer cannot legally do anything to discourage someone else from complaining about future discrimination.

Retaliation is its own cause of action. That means it applies even if your meeting with a sexual harassment lawyer ends without a case being filed. If an employer disciplines you for meeting with a lawyer to discuss your rights, that alone is enough to file an EEOC charge or federal lawsuit.

5 Ways To Protect Yourself From Retaliation If You Talk to a Sexual Harassment Attorney

Retaliation may be illegal, but it still happens. It is always better to avoid the hurt and financial damage caused by an unlawful termination than to be compensated after the fact. Here are some things you can do to protect yourself if you talk to a sexual harassment attorney and are worried about retaliation.

1. Don’t Talk About Your Complaints With Coworkers

It can be tempting to vent your frustrations about sexual harassment with your coworkers at the office. But if you are concerned about retaliation, it is better to keep your complaints to yourself. The unfortunate truth is that even your closest working friends may feel pressure to reveal what they were told to save their own jobs or advance their careers. Open offices, communal break areas, and factory floors are also great places for gossip. If your conversation is overheard it could quickly get back to your supervisor.

2. Don’t Use a Company Email or Smartphone

It is easy to assume that what happens through email or private message will stay between you and the recipient. But if you are using a company email server or smartphone, your boss may have the ability to view your communications. Always use private equipment to connect with your sexual harassment attorney. It may be inconvenient, but it is the only way to ensure your privacy and protect against retaliation.

3. Don’t Keep Your Harassment Logs in the Office

In many sexual harassment cases, your attorney will advise you to create a harassment log. Whether in electronic form or a paper binder, this log gathers the evidence your employment discrimination lawyer will need if the case goes to court. But the log can also be used against you and prompt retaliation if your manager gets a hold of it. Be sure to bring your harassment log home with you every day, or better yet, keep it outside the office altogether.

4. Don’t Take Attorney Calls on the Clock

Developing a sexual harassment claim often takes time, and repeated communication with your lawyer. But even if your boss hasn’t figured out how to monitor your emails, he or she probably knows how to eavesdrop. When your sexual harassment lawyer calls while you’re on the job, don’t take the call. Unless you are immediately able to step away to someplace private, let it go to voicemail. You may also want to schedule calls for your lunch break (off site) or after the end of your shift.

5. Don’t Post on Social Media

Today many people choose to live a very public life. They post about every aspect of their lives on social media, from the death of a loved one to what they ate for dinner. But if you are at all concerned about retaliation, you should make an exception for your sexual harassment matter. When it comes to ongoing legal issues, mum’s the word on Facebook, Twitter, Instagram, or any other social media platform. Don’t post anything about the issue — you meeting with the lawyers, your decision, or even what is happening at work. Remember that if your case goes to trial, whatever you post could become evidence for your employer.

By the time sexual harassment pushes you to speak to an attorney, it can seem all-consuming. You may rightfully fear that your boss will find out and retaliate against you. But by being discrete and protecting your privacy, you and your lawyer can help you ensure that a consultation doesn’t cost you your job.

At Eisenberg & Baum, LLP, our experienced workplace harassment attorneys take your privacy seriously. We will meet with you confidentially to review your case, and your options, and help you decide when, where, and how to file your claim. Contact us today to schedule a free initial consultation and get your case started.

Retiring Judge Posner’s Legacy on Employment Discrimination Cases

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Judge Richard Posner’s sudden retirement from the 7th Circuit Court of Appeals in September took many lawyers and commentators by surprise. But Posner’s legacy on employment discrimination cases promises to live on for some time to come.

In this blog post, I will review the impact of Judge Richard Posner of the United States Circuit Court of Appeals, Seventh Circuit. I will discuss how his opinions seemed to shift in favor of employees over time, culminating in one of the most controversial employment discrimination cases in recent memory: Hively v. Ivy Tech Community College.

During his 35 years on the federal bench, Judge Posner was known as a prolific writer, and a pragmatic decision maker. Over time, his opinions on employment discrimination cases have shaped the law and the practice, leaving quite the legacy.

Judge Posner on Age Employment Discrimination Cases

Judge Posner didn’t start out as a favorite among employment discrimination attorneys. Many of his early opinions framed employment law in terms of economics. That did not always fair well for the workers, particularly in the area of age discrimination. In his 1995 book Aging and Old Age, Posner questioned the need for a federal age discrimination law at all saying:

The people who make employment policies for corporate and other employers and most of those who carry out those policies about hiring or firing specific workers are at least 40 years old and often much older. … Employers—who have a direct financial stake in correctly evaluating the abilities of their employees and who for the most part are not young themselves—are unlikely to harbor either serious misconceptions about the vocational capacities of the old (so it is odd that employment should be the main area in which age discrimination is forbidden) or a generalized antipathy toward old people.

He went on to compare the situation to a black-majority nation passing laws to protect black people from race discrimination. The position was controversial as it was bold. However, over the years Posner’s legacy on employment discrimination cases began to soften, and the once staunch conservative began to take a more libertarian perspective that benefited American workers.

Posner’s Legacy on Employment Discrimination and Sexual Orientation

Judge Posner was exceedingly prolific. In 35 years he penned over 3,300 opinions. But perhaps one of his most noteworthy opinions was also one of his most recent: a concurrence in Hively v. Ivy Tech Community College. In Hively, a part-time adjunct professor sued her employer, Ivy Tech Community College of Indiana for sexual discrimination. She said she had been passed over for full-time positions between 2009 and 2014 because her employers had learned she was a lesbian. In an en banc decision by the entire 7th Circuit bench, Professor Hively’s claim of sexual orientation discrimination won out.

Posner joined with the majority decision, ruling that Title VII’s prohibition against discrimination based on sex included the sex of a person’s intimate partner. He also went on to pen a concurring decision saying that time and circumstances had changed the way the legal community understood the word “sex” in the Civil Rights Act.

“Sex” in 1964 meant gender, not sexual orientation. What the framers and ratifiers understandably didn’t understand was how attitudes toward homosexuals would change in the following half century. … We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.

The opinion was true to Posner’s legacy on employment discrimination, placing pragmatic concerns above the letter of the law. It also recognized a key distinction in modern legal discourse: that sex means far more than mere biology.

Posner and the Pro Se Litigant

When he announced his retirement on September 1, 2017, Posner told the Chicago Daily Law Bulletin that his abrupt departure was due to “difficulty” he was having with the other judges and their treatment of pro se litigants (people who represent themselves in court). He believes these people “deserve a better shake”.

According to the Bulletin, about 55-60% of the 7th Circuit’s appeals are filed by people representing themselves without a lawyer. That included Professor Hively. However, most of these cases were decided without a hearing, on the written materials alone. Posner felt this was unfair. Now that he has retired, he intends to continue to teach and publish books, with a focus on social justice reform.

Posner’s legacy on employment discrimination is certain to be a lasting one. From his numerous opinions, to his outspoken advocacy for the individuals who appeared before him in court, he has become a standard for the judiciary over the last three decades. His wit, and his wisdom will be missed.

At Eisenberg & Baum, LLP, our experienced discrimination attorneys are ready to help with anything from age discrimination to sexual orientation cases. We can help you identify options, negotiate solutions, and plead your case before the EEOC or a federal judge. Contact us today to schedule a consultation and review your case.

#MeToo: Hollywood Sexual Harassment Scandal Takes Social Media By Storm

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When the average person looks at the Hollywood film industry, celebrity, parties and even sex are often seen as just part of the lifestyle. But a recent Hollywood sexual harassment scandal is showing that when it comes to movie mogul Harvey Wienstein, much of that sexual energy was non-consensual. News reports show the scandal has spanned over 20 years and include some of the industry’s most famous actresses.

In this blog post I will review the New York Times investigation into sexual harassment claims against Hollywood movie mogul Harvey Weinstein. I will address how the news spread to Twitter and other social media outlets in the form of the #MeToo movement. And I will explain how the victims of sexual assault and sexual harassment can get help from employment discrimination attorneys.

Harvey Weinstein and the 20-Year-Old Hollywood Sexual Harassment Scandal

On October 5, 2017, the New York Times released its investigative report “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”. The report by Jodi Kantor and Megan Twohey uncovered how Hollywood producer Harvey Weinstein had been sexually harassing women in his industry for more than two decades. The story was told by now-famous famous actresses, including Ashley Judd, Gwyneth Paltrow, and Angelina Jolie, as well as assistants like Lauren O’Connor and interns and temporary employees like Emily Nestor.

Several women described how Weinstein would invite them to the Peninsula Beverly Hills hotel on the pretext of a business meeting. When they arrived, they would be greeted by Weinstein, nude, or nearly so, who asked them to do everything from give him massages to watch him shower. He would promise to bolster their careers and help them make it in a highly competitive industry. Judd told the New York Times she remembered thinking:

How do I get out of the room as fast as possible without alienating Harvey Weinstein?

The problem was that Mr. Weinstein was such a powerful player in the Hollywood film industry. His films won Oscars, his company was flourishing, and he had a business reputation as a “liberal lion”. But behind closed doors, women in the industry, even his own advisor, described him more like a “old dinosaur” caught up in the ways of the past. And that included a lengthy pattern of sexual harassment.

Sexual Harassment Awareness Hits Social Media in the #MeToo Movement

When the Hollywood sexual harassment scandal went public, it got far more attention than other recent allegations within the tech industry or among California venture capitalists. Because of the celebrity names involved, the matter quickly caught fire on social media in the form of a hashtag: #MeToo.

The “Me Too” movement was started by Tanara Burke, a public speaker and community organizer in New York. It was intended to “support and amplify the voices of survivors of sexual violence, assault, and abuse.” But the movement hadn’t gained much traction until Actress Alyssa Milano responded to the Weinstein Hollywood sexual harassment scandal by giving the movement a Twitter hashtag on October 15.

Within 24 hours, more than 1 million tweets and 12 million Facebook posts had flooded social media, including everyone from Lady Gaga, to Anna Paquin, and even Senator Elizabeth Warren. The social media storm threw light on just how prevalent sexual harassment is in the movie industry, and across the country. Nationwide, women, and some men, came out with their own stories of abuse, violence, and gender discrimination.

Going Beyond Awareness to Help Sexual Harassment Victims

This was not the first time Harvey Weinstein had been the center of sexual harassment allegations. In fact, his company is reported to have settled at least eight sexual harassment and assault complaints dating back to 1990. However, each settlement brought with it a confidentiality agreement that prevented Weinstein’s victims from speaking up in favor of more systemic changes.

A toxic culture in a business or industry doesn’t change overnight. Since the New York Times article and the #MeToo movement, Weinstein has been fired from his company and removed from the Academy of Motion Picture Arts and Sciences (the organization that gives out the Oscars). But even if Weinstein’s career is over, the #MeToo movement shows that the problem of sexual harassment and assault is far larger, and more pervasive.

Perhaps the biggest advantage of a social media movement like this is that it empowers more sexual harassment victims to seek out help. Whether in the Hollywood movie industry or in a blue-collar factory job, every employee has the right to be free from gender discrimination and sexual harassment. When the owner of a company, manager, supervisor, or coworker crosses the line, an employment discrimination attorney can help set things right. Using state and federal laws that protect workers, sexual harassment attorneys can negotiate changes in the workplace, and sue to recover lost wages and other damages that are the result of the employer’s bad behavior.

The women (and men) of the #MeToo movement don’t have to feel like there is nothing they can do. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help them fight back against abuse at work. If you have been the victim of sexual harassment or gender discrimination, we will meet with you and develop a strategy to get you back to a comfortable working environment. Contact us today to schedule a free consultation.