When and Where Should Your Sexual Harassment or Assault Case be Filed?

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When your work takes you on the road it can sometimes create uncomfortable or even dangerous situations between coworkers. When a hotel stay or a trip overseas for work turns into a case of sexual harassment or assault, it may be hard to tell when and where the case should be filed.

Matt Lauer, the Sochi Olympics, and New York Sexual Harassment Claims

In 2017, long-time NBC news anchor Matt Lauer was fired from his position after the company received a complaint raising sexual harassment and abuse allegations against him. Brooke Nevils, a former NBC producer, said that Lauer raped her in a hotel room while they were covering the 2014 Winter Olympics in Sochi, Russia. She says that she was too drunk to give consent to his sexual advances, and that she refused his requests for the particular sexual act requested. Ms. Nevils’s attorney said that when the news team returned to New York, pressure and fear that she would lose her job at NBC kept her from reporting the sexual harassment to their mutual employer. Instead, their sexual involvement continued back in the states.

Then in 2017, Nevils and a number of other women began interviewing with various news outlets anonymously to voice their concerns against the host of the Today show and other NBC staples. When the network learned of those interviews, it began its own investigation. Then Nevils’s attorney filed a formal complaint with NBC on November 27, 2019, and two days later, Lauer was fired.

Where Would Lauer’s Sexual Assault Case Be Filed?

Now, Nevils’s story has shown up again — this time in the book Catch and Release by Ronan Farrow. In the wake of recent changes in the way New York handles sexual assault cases, some are asking whether the book is a lead in to a lawsuit. As of yet, no federal or state case has been filed.

Some of that may be because it isn’t clear whether New York would have the authority to hear the case. In general, criminal and civil cases resulting from rape, sexual abuse, or other assaults must be filed in the location where the act occurred. Since the specific rape allegations happened in Sochi, Russia, it would be the Russian authorities who would have to file charges. Even if Nevils were to make a report with the New York police, they would be required to send the information overseas for prosecutors there to deal with.

However, there is some possibility that Lauer’s coercive and non-consensual sexual activity didn’t stop at the U.S. border. If Nevils were to raise objections that her continued relationship with the news anchor resulted in additional sexual abuse here at home, that behavior could still result in a civil lawsuit under the state’s new extended window to file a case.

Can a New York Court Address Nevils’s Claims of Sexual Harassment and Abuse?

Where any potential lawsuits must be filed is only one half of the issue. The question of when that case must be filed is just as important. Every civil cause of action (right to sue) comes with an expiration date. You only have so long after an offense occurs to resolve your issues or take it to court. These limits are called statutes of limitations.

When the victim of sexual harassment and abuse is an adult at the time of the incident, the New York statute of limitations for filing a civil lawsuit against the abuser is just 3 years. In Nevils’s case, NBC made a reasonable response to Nevils’s complaint of sexual harassment by a coworker. However, if it had not, she would only have had a few short months to file a claim with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act.

The Sochi incident is said to have happened during the 2014 Winter Olympics. That means under state law, Nevils would have needed to act no later than 2017 under New York law. However, if their relationship continued to meet the criteria for sexual harassment or abuse after the news team returned to the states, Ms. Nevils may still have time to make her case.

Ms. Nevils’s story shows that it can sometimes be difficult to tell when and where your sexual harassment and abuse lawsuit needs to be filed. It also shows how waiting too long to come forward can cut off your right to go to your employer, the EEOC, or the courts to get the remedies you deserve and to protect your professional career.

If you have been the victim of sexual harassment or abuse, don’t wait until it is too late. At Eisenberg & Baum, LLP, we have a team of attorneys who know how to fight back against sex abuse and sexual harassment. We will help you tell your story and get the justice and compensation you need before the time runs out. Contact us today to schedule a free consultation.

What Happens After a Person is Fired for Gender Discrimination?

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There are many sources for what to do and what can happen after a person is fired because of the biases of his or her supervisor or employer. The appropriate response to gender discrimination and sexual harassment is often to terminate the harasser’s employment. But what happens after a person is fired for gender discrimination is a question troubling advocates and academics across the country.

Universities Wrestle With Teaching Around Sexual Harassment Issues

The #MeToo movement is two years old. During that time, the victims of sexual harassment and gender discrimination have stood up, many for the first time, against their politically powerful abusers. #MeToo and #TimesUp advocates have toppled heavy hitters in nearly every industry, including film-makers, writers, and scientists.

Now, as the dust settles, academics across the country find themselves wondering what to do with the pieces of what is left. Teachers and professors find themselves trying to decide what to do with the works of people who have been accused of gender discrimination and sexual harassment. At the University of California, San Diego, theater major Savanah Lyon circulated a petition calling for the university to cancel its “The Films of Woody Allen” course after the film-maker was said to have assaulted his adopted daughter. At Bowdoin College, Associate Professor Nadia Celis wrestled with what to do about author Junot Diaz’s novel “The Brief Wondrous Life of Oscar Wao” while the author was investigated for unwanted sexual contact at M.I.T. Similar questions have arisen over Roman Polanski’s “Rosemary’s Baby”, Chuck Close’s “Big Self-Portrait”, and Neil deGrasse Tyson’s work on astrophysics.

The question for these educators is whether to shun the works of those who have been accused of gender discrimination and sexual harassment, or to teach the works anyway, putting the work in context with discussions of abuse and power. There are advocates on both sides. Ms. Lyon told the New York Times:

“When you teach works like Woody Allen’s you’re normalizing and romanticizing the culture of abuse he was part of. . . . It’s not censorship to be selective when you choose the art you teach.”

Others worry that by erasing the works of people accused of this misconduct, they could accidentally be silencing racial minorities or cutting students off from would-be role models.

Employer Responses to Charges of Gender Discrimination

Employers face similar questions when charges of gender discrimination happen at work. Because sexual misconduct is often an expression of power, those accused often have sway and influence in the workplace. When an employer’s investigation reveals those allegations to be true, the employer has a tough decision to make: whether to fire the person doing the harassment, or the one reporting the abuse.

When the Employer Fires the Wrong Person

State and federal anti-discrimination laws make it illegal for an employer to fire someone because they report gender discrimination, or are involved in an investigation into sexual harassment. But it still happens. That’s why Title VII and the New York Human Rights Act include a separate right to sue for retaliation by an employer. If your boss decides it is easier to fire you than to investigate your claims or deal with your harasser, you have a right to file a claim with the Equal Employment Opportunity Commission (EEOC), the New York State Human Rights Commission, or state or federal court.

What Happens to the Harasser After He or She is Fired

But what if your employer does the right thing and fires the person who harassed you? What happens to them after they leave the position? Most will likely find new employment somewhere else. Some professionals, like sports physician Larry Nassar may lose their right to practice their trade.

Depending on the nature of the gender discrimination or sexual harassment, you may also have individual claims against your abuser. Physical sexual abuse carries serious criminal consequences, as well as civil claims for assault. If the gender discrimination included spreading false rumors about you or damaging your reputation, you may have claims for libel or slander. In New York, if your coworker spread sexually explicit images of you around the office, you could also have a “revenge porn” claim against him or her.

What Employers Can Do to Avoid Continued Gender Discrimination

What happens at your office is possibly more important than what happens to the individual fired for gender discrimination. Especially if you continue within the same working environment, you will want your employer to do more than remove one bad apple. That is why an employer’s reasonable response to gender discrimination often includes company-wide anti-harassment training and improved reporting and investigation procedures. These steps show your fellow coworkers that what happened was not acceptable, and helps to avoid continued gender discrimination from other sources.

At Eisenberg & Baum, LLP, our gender discrimination attorneys look beyond getting a person fired for gender discrimination. We want to help our clients be compensated for the harm they suffered and help to change the climate of harassment and abuse in their workplace. We will identify strategies and push for changes at work to help prevent repeated discrimination. Contact us today to schedule a consultation with one of our attorneys.

New York State Legislators Tighten Sexual Harassment Laws, Again

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Earlier this year, the New York state legislature held its first hearings on sexual harassment and gender discrimination in nearly 50 years. Now Senate Bill 6577, the product of those hearings, has been signed into law. That means tighter sexual harassment laws and better protection for domestic workers, independent contractors, and workers in small businesses.

In this blog post, I will discuss Senate Bill 6577, which tightens sexual harassment laws under the New York State Human Rights Law. I will explain how the new law, together with those that went into effect in January 2019, will expand the definition of employer and protections for non-employee workers, as well as making it easier to prove sexual harassment claims against employers and abusers.

New York Legislature Listens to Sexual Assault Victims

New York state legislators hadn’t taken the time to hold hearings on the state’s sexual harassment laws since 1992. But after a shift in state politics, the issue of sexual harassment and gender discrimination finally pushed its way to the fore. The legislators considered a set of anti-harassment bills designed to tighten sexual harassment laws and provide protections to previously under-served workers. The state senate heard from survivors, advocates, and legislative aides who had worked together to push for sexual harassment reform. At the end of the day, the vote was 109 to 19 in favor of the new law. Senate Majority Leader Stewart Cousins said:

“New York’s outdated sexual harassment laws have silenced survivors for too long. As lawmakers, it is our responsibility to protect survivors and work to improve the standards and culture in the workplace. . . . This legislation works to close loopholes, extend the statute of limitations, and ensure that sexual harassment policies are clear for all employees across the public and private sector. I applaud Senator Biaggi for her unrelenting advocacy on this issue.”

Senate Tightens Sexual Harassment Laws

The new laws, some of which are already in effect and others of which will roll out in 2020, tighten the state’s Human Rights Law against discrimination and sexual harassment. They also put in place protections for some of the state’s most disadvantaged workers.

Changing the Standard of Discriminatory Conduct

One of the biggest changes in the new law is the removal of the “severe or pervasive” standard from discrimination and retaliation cases. This means that employers won’t be able to claim that what happened “wasn’t that big a deal” as long as a reasonable person would have been offended by the behavior.

Shielding Workers from Oppressive Internal Complaint Processes

The law also removes the “Faragher-Ellerth” defense, which means skipping the internal complaint process will no longer doom a plaintiff’s claim. This is especially important in small businesses where the owner is likely close to the person committing the abuse, or may be doing it themselves.

Giving Victims More Time to Come Forward

The law also extends the period when employees can report sexual harassment at work. Complainants now have up to three years to come to grips with what has happened, gather their evidence, and make their case.

Protecting More Kinds of Workers

Workers in the smallest of small businesses and independent contractors often have trouble asserting their rights under established state and federal laws. Limits on the number of employees a company must have to qualify under the law and the definition of what an employee was cut many workers off from the protections available to everyone else. The new law expands protections to domestic workers, independent contractors, and the employees of small businesses, removing exceptions and expanding the definition of an “employer” or “employee” under state law.

Making Multilingual Training a Reality

The law will also expand requirements in the January 2019 state budget that require notice of state-mandated sexual harassment prevention policies in workers’ native languages. The January law said that, in some cases, anti-harassment training must be provided in secondary languages when enough employees of the same ethnic background work at the company. These protections are crucial to protecting immigrants and migrant workers who are often afraid to come forward and report sexual harassment and gender discrimination.

Limiting Non-Disclosure Agreements and Arbitration Agreements

The legislature also recognized that larger companies can often pressure their workers into silence through back-door deals and mandatory arbitration agreements. The new law bans the use of mandatory arbitration clauses for all discrimination claims, giving workers their day in court. It also severely limits how non-disclosure agreements may be used, giving workers time to fully read and understand what they are agreeing and removing the pressure to sign away their right to talk about what happened to them.

Giving Discrimination Lawsuits Teeth Through Attorney Fees and Punitive Damages

In addition to making it easier for sexual harassment victims to come forward, the new laws also made the cost of violating them more serious. By requiring judges to award attorney fees to prevailing plaintiffs and allowing them to impose punitive damages, the law keeps larger companies from simply chalking up discrimination claims as a cost of doing business.

Making the Most of New York’s New Anti-Harassment Laws

This set of laws are clearly designed to make it easier for the victims of sexual harassment and gender discrimination to come forward. They make it more costly for employers who ignore their responsibilities to investigate and respond to discrimination at work, and make sure no one falls through the cracks because of the size of the company they work for.

But even with all these protections, proving discrimination and harassment isn’t easy. The sexual harassment attorneys at Eisenberg & Baum, LLP, have decades of experience helping the victims of workplace harassment get the compensation they deserve. We know how to make the most of state and federal laws and can help you build your best case. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

What Woman to Woman Gender Discrimination Looks Like

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The faces of the #MeToo movement have been women from across the country who have faced sexual harassment and gender discrimination at the hands of the men they worked for. But that’s not the only way female employees can be disadvantaged at work. Find out what woman to woman gender discrimination looks like, and what you can do when it happens.

Title VII Protects Against Sexual Harassment and Gender Discrimination

State and federal laws prevent employers from discriminating against their employees for inherent traits like sex and gender. The New York State Human Rights Act and Title VII of the federal Civil Rights Act each protect employees against sexual harassment and gender discrimination at work. Specifically, the laws say that your employer, manager, or supervisor can’t make employment decisions based on your actual or perceived sex or gender. That could include:

  • Hiring men but not women
  • Firing women who seem too “weak” to do physical jobs
  • Basing evaluations or promotions on how well a person matches sexual stereotypes
  • Assigning women to specific shifts based on assumptions about their family duties at home
  • Choosing a woman over a similarly qualified man because of her gender
  • Paying men more than women for the same work
  • Assigning bonuses based on sexual biases

The laws also protect against sexual harassment that can happen at work. They make it illegal for your boss to offer employment opportunities in exchange for sexual favors. They also require employers to investigate, respond to, and take reasonable steps to prevent sexualized behavior between coworkers.

Same-Gender Discrimination Is Just as Illegal

All those protections are gender-neutral in the statutes. It doesn’t matter who is doing the discrimination, or who their target is, male or female. While the most iconic cases involve powerful men using their power to discriminate against or harass less powerful women, the truth is that same-gender discrimination happens all the time. When it does, the same laws apply and employees can receive the same compensation, whether the person behaving badly is a man or a woman.

What Woman to Woman Gender Discrimination Looks Like

Woman to woman gender discrimination is less likely to take on a “quid pro quo” character. While it can certainly happen, in most cases, women who discriminate against their female employees aren’t as likely to be looking for sexual favors in exchange for business perks. Instead, most same-sex gender discrimination preys on the stereotypes and assumptions the female boss or coworker has about how women can and should do their jobs. This could include:

  • A woman HR director passing over female candidates applying for labor-intensive jobs based on assumptions about their physical abilities
  • A partner at a law firm or other white-collar company telling an employee she should wear skirts or make-up if she wants to be successful in the industry
  • A supervisor calling an employee “butch” or saying she is too masculine

Same-gender sex discrimination may also sometimes include assumptions about a woman’s family status or duties to her children. For example:

  • A woman CEO questioning whether her employee is planning to have children in deciding whether to offer a promotion
  • A shift-supervisor cutting a female employee’s hours without her consent so she can be home with the kids
  • A hiring manager asking if a woman is married and what her husband does as part of a job interview

Same-gender sexual harassment may be even more common than other forms of gender discrimination. This kind of behavior can happen on the workshop floor between coworkers, or it can pass from employer to employee. Woman to woman sexual harassment could look like:

  • Invitations to sexually explicit outings or events
  • Posting pornography or explicit pictures in the workplace or on company-only communication portals
  • Inappropriate physical touching
  • Making jokes about a coworker’s sexuality or gender

What to Do If You Face Gender Discrimination from Your Female Boss

With all these different ways women can discriminate against other women, it may feel like there’s nothing you can do to level the playing field at work. But remember, the law says that not only is your employer prohibited from discriminating against you for being a woman, it must take reasonable steps to respond to and prevent gender discrimination and sexual harassment at work.

That means the first step to stopping woman to woman gender discrimination is to report it. Object to the offensive jokes or the discriminatory work schedule — in writing if you can. Make a scene. Stand up for your right to wear pants (according to your company dress code) or to not wear makeup. Say no to the sexually explicit emails and invitations.

And then send it up the line. File a formal complaint with your supervisor or human resources department — again in writing — and follow up. Make them do their job to respond to the complaints. If they don’t, its time to talk to an employment discrimination attorney.

You can enforce your right to a discrimination-free workplace by filing a complaint with the Equal Employment Opportunity Commission or in state or federal court. Which route is your best option will depend on what happened, where it happened, who your employer is, and what state you work in.

At Eisenberg & Baum, LLP, our sexual harassment attorneys will help you collect your documents, plan your best strategy, file the necessary claims, and represent you in court. Contact us to schedule a consultation. We stand up for you against sexual harassment and gender discrimination, even when the boss is a woman.

How Criminal Sexual Assault Charges and Civil Lawsuits Interact

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The victims of sexual assault often have to navigate both the prosecution of criminal sexual assault charges and civil lawsuits. Each legal proceeding has its own process, its own rules, and its own possible outcomes. Knowing how the two interact can be important to weathering the storm and moving toward healing.

In this blog post, I will discuss how criminal sexual assault charges and civil lawsuits by the victims interact. Using a lawsuit filed by “Victim-1” against Jeffrey Epstein’s estate as an example, I will discuss the differences in timing and levels of certainty, as well as the possible benefits and compensation for victims coming from each case. I will also explain why victims need their own attorney, even at the criminal stage.

“Victim-1” in Jeffrey Epstein’s Criminal Sexual Assault Case Files a Her Own Civil Lawsuit

National and local news outlets have been flush with articles about the late billionaire Jeffrey Epstein. A decade after Epstein pleaded guilty to Florida-state prostitution charges, New York prosecutors and their federal counterparts in the Federal Bureau of Investigations (FBI) unsealed an indictment of their own. The indictment claimed that Epstein was the operator of a sex trafficking ring involving 66 girls as young as age 14. Epstein was said to have appeared naked or in a robe before the girls and ask them to provide him with massages and sexual services. He then paid some of his victims to recruit others into the ring.

Epstein was put in jail while the criminal sexual assault case was pending. Then, on Saturday, August 10, 2019, he hanged himself in prison, effectively ending the criminal prosecution.

But that didn’t stop Epstein’s victims from seeking justice and compensation for the harm he had caused. The woman identified as “Minor Victim-1” in the New York indictment announced that she was filing a civil lawsuit against Epstein’s estate as one of hundreds of lawsuits already filed under the New York Child Victims Act’s one-year look-back window. The plaintiff in the case identifies herself as Jane Doe for safety reasons. Her complaint lays out a story of worsening sexual assault against a teenager in dire financial straits and looking for ways to support her mother and sick sister.

According to the indictment, “Minor Victim-1” was recruited by Epstein in 2002 at the age of 14, while she was living with a friend. Her mother and sister were sharing one bedroom of a two-bedroom apartment at the time, and renting the second to boarders to help pay for her sister’s medical condition.  An older teenager in the neighborhood told Doe “about an opportunity to earn money” by introducing her to “a wealthy man” who turned out to be Epstein. When she arrived at his home (which she described as a castle), he asked her age before disrobing and laying face down on a massage table. When Doe did as he asked and massaged him, the scene quickly turned sexual. Epstein then paid Doe $300.  This situation was often repeated until Doe turned 17, with the visits becoming more frequent and the sexual abuse more severe over time. Doe’s complaint also said that Epstein’s assistants, Sarah Kellen and Lesley Groff, assisted in scheduling the meetings, recruiting new girls, and paying Doe for her services.

Victims Have Little Control Over Criminal Sexual Assault Charges

When the victims of child sexual assault or their parents report sexual misconduct to the police, formal criminal sexual assault charges often follow. But even though the act happened to the victim, she or he often has little control over what happens in criminal court. State prosecutors will complete their investigation, file criminal sexual assault charges against the defendant, and negotiate plea deals, often without consulting with the victim or his or her family. The sexual assault charges are “crimes against the state”; the victim is simply a witness.

Convictions in criminal sexual assault cases are also often outside the victims’ control. Because these are criminal charges, they must be proven beyond a reasonable doubt and must follow all the rules about police conduct and admission of evidence. Sometimes that means a slip up in the way the police handled the investigation, or a strange answer at trial can stand between victims and the justice they deserve.

When criminal sexual assault charges do result in convictions, the sentencing is an important moment for the victim in the case. She or he is entitled to submit a statement about how the crime affected her or his life, and can often be awarded restitution for the financial costs connected to the crime. Standing up and telling a judge about sexual assault can be hard. If you have been wrestling with the effects of rape or sexual assault, a sentencing hearing can be traumatic. You need an advocate to stand with you, help you make your statement, and get all restitution available in your case.

Civil Lawsuits for Sexual Assault Crimes

Jane Doe will never have the chance to stand up in a criminal court and tell her story. Epstein took that from her along with her own life. But that doesn’t mean she can’t be compensated for the harm he caused. When a criminal prosecution falls apart, or when a victim’s damages extend beyond the financial reach of restitution, he or she may choose to file a civil lawsuit for personal injury based on the abuser’s intentional acts.

Unlike in criminal cases, civil lawsuits put the victim in control of his or her own case. You and your attorney work together to build the case and collect evidence. You have a say in when and how the complaint is filed, and are involved in every step of the process. Most importantly, you have the final say on any potential settlement.

Civil lawsuits also have a broader reach than their criminal counterparts. They can be successful even when there isn’t enough evidence to reach “beyond a reasonable doubt”. Under the Crime Victims Act they can also be filed later, giving victims more time to come to terms with their abuse. The damages in a civil lawsuit can also include more than just financial costs, like disability, mental harm, and pain and suffering.

Finally, a civil lawsuit lets the victim and her or his attorney tell the story of the case. Plaintiffs are permitted to testify at length about what happened and what it did to them. They can present witnesses to support their case and tell about what happened afterward. This gives plaintiffs like Jane Doe the opportunity to speak out against their abusers in a way criminal cases often don’t.

How Criminal Sexual Assault Charges and Civil Lawsuits Interact

When criminal charges and civil lawsuits happen because of the same behavior, it is important to consider how the two proceedings will affect one another. This is a complicated question that is best discussed with an experienced sexual assault attorney. However, some common interactions include:

  • Evidence presented by prosecutors can be used in later civil trials
  • Testimony and admissions of abusers are admissible even if they change their tune later on
  • A guilty plea or conviction is often proof of illegal conduct, simplifying the civil case
  • Anything the defense attorney gets the victim to say can come back up in the civil lawsuit
  • Restitution ordered in the criminal case can’t be part of the civil lawsuit
  • Long prison sentences may prevent abusers from paying their settlements or judgments in civil cases

An experienced sexual assault attorney can guide you through both the criminal case and your own civil lawsuit against your abuser. At Eisenberg & Baum, LLP, team of sexual abuse attorneys know how to navigate both systems and will work for you to fight back against child sexual abuse. We can meet with you and your family at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation through criminal sexual assault charges and civil lawsuits. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

New York Look Back Window Gives Sexual Assault Survivors One Year to Speak Up

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Sexual assault survivors face fear, trauma, and social stigma when they step forward to name their abusers. Even moreso when the abuser was a priest in a Catholic church. It can take years, even decades, to decide to take that step. The passage of New York’s Child Victims Act says for long-past assaults, the time to speak up is now.

In this blog post I will review the story of Charlie d’Estries, who identifies as a sexual assault survivor after an incident of abuse by a local priest 50 years ago. I will explain how a New York law creates a one year look back window, giving the victims of long-past abuse one last chance to receive justice.

A Catholic Priest, Billy’s Buddy, and Decades of Healing

Charlie d’Estries was a young boy when he became a sexual assault victim. He told the New York Times that he remembered sitting naked together with his childhood priest and their relationship became sexual. But that didn’t mean he felt like a victim. d’Estries explained that realization didn’t come until 2018, when he attended a reunion for his Catholic school on Long Island. He connected with a nun who had known him as a student. She referred to him as “Billy’s buddy”, referencing his close relationship with the priest.

That’s when, as a 63 year old adult, d’Estries realized that his memories were that of abuse. It caused everything to shift for him. He was deeply shaken as he came to see himself as a sexual assault survivor, and he wanted justice. But the law, at that time, said that d’Estries had waited too long to speak up.

New York Child Victims Act Creates Look Back Window for Sexual Assault Survivors Like d’Estries

When d’Estries had his realization, New York law said that he was 40 years too late to file a lawsuit or seek justice. The state’s statute of limitations said that sexual assault victims had to file their claims within 5 years of turning 18. In other words d’Estries would have needed to come forward before he turned 23 in 1978. The sentiments around same-sex relations and sexual assault were very different then. Even if d’Estries had wanted to name his abuser, the social stigma of coming forward in the late 70s may have kept him silent.

Then the New York state legislature decided to make a change. In January 2019, lawmakers passed the Child Victims Act, which extends the statute of limitations, giving sexual assault victims more time to come forward and see justice done. Criminal cases now have an extra 5 years (the same 5-year statute of limitations does not start running until the victim turns 23). In civil cases, survivors have even more time to come forward. A civil lawsuit for damages in cases involving sexual abuse, incest, or child pornography with a child victim can now be filed anytime until the victim turns 55 years old. But that would still leave d’Estries and others like him on the wrong side of the deadline.

The legislature seemed to recognize that their law could create an unfair situation. People like d’Estries never had a chance to deal with the effects of child sexual trauma as adults before filing their lawsuits. But those who grew up and had their experiences later would have decades to heal before making the decision to come forward. To account for those caught in that gap, the Child Victims Act created a one-year look back window.

For one year — between August 14, 2019 and August 14, 2020 — anyone can file a lawsuit for childhood sexual assault, abuse, or pornography, no matter how long ago the events happened. The law puts the statute of limitations on hold during that one-year look back window, and even allows anyone who missed their deadlines before to refile their cases. That means if someone’s lawsuit was dismissed for violating the old 5-year statute of limitations or because they didn’t file the proper notices, they can refile the lawsuit now under the Child Victims Act and get justice.

Other States’ Child Victims Laws Promise Thousands of Sexual Assault Lawsuits This Year

New York isn’t the first state to expand protections for sexual assault survivors. In 2019 alone, 40 states have introduced similar laws — 18 of them have gone into effect. New Jersey’s law, which went into effect May 13, 2019, gives sexual assault survivors 2 years to come forward in its look-back window.

These laws promise to bring a lot of litigation with them into the court systems. In 2003, California passed a similar law containing a look-back window. In the year that followed, sexual assault survivors filed over 1,000 lawsuits, most against the Catholic church. Eventually, the Diocese of San Diego had to file for bankruptcy because of all the claims against it. New York has eight Catholic dioceses that will likely face lawsuits by people like d’Estries who were sexually assaulted by their priests. The Catholic Archdiocese of New York (including Manhattan) has already sued its insurance providers to make sure there will be money available for the victims who come forward.

The law also comes on the heels of the #MeToo and #TimesUp movements. Many of the women (and men) who came forward told stories that were too old for litigation, until now. The look back window has opened the door for lawsuits against Jeffrey Epstein’s estate and other New York heavy hitters who thought they had waited out the storm.

Get Help Coming Forward to Report Sexual Assault

The Child Victims Act makes legal action available to the victims of long-ago sexual assault, but that doesn’t mean it will be easy. Sexual assault survivors will each need to decide for themselves whether justice is more important than the publicity and stress that comes with a high-profile lawsuit.

At Eisenberg & Baum, LLP, we have a team of attorneys who know how to fight back against sex abuse and sexual harassment. Led by Attorney Adriana Alcalde, our sexual abuse attorneys will stand beside you and advise you as you make the decision to speak up. We will work hard to help you tell your story and get the justice and compensation you have waited for so long. Contact us today to schedule a free consultation.

EEOC Settlement Requires Sexual Harassment Training in Spanish

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When you operate a multi-ethnic company, you can’t always assume that your employees will speak enough English to understand their rights when it comes to reporting gender discrimination and sexual harassment. A recent settlement by the EEOC requiring a grocery store to perform sexual harassment training in Spanish and the requirements of the 2019 New York State Budget both show that civil rights protections don’t depend on English literacy.

In this blog post, I will describe a settlement between the Equal Employment Opportunity Commission (EEOC) and Foodtown Supermarket responding to complaints of verbal and sexual harassment. I will explain how the settlement agreement included a promise to provide sexual harassment training in Spanish. And I will discuss how this mirrors a New York State law that sometimes requires training in the native language of minority workers.

Misconduct at Grocery Store Leads to Sexual Harassment Training in Spanish

Workers at Foodtown Supermarket, in Elmhurst, New York, faced a difficult decision: endure their department manager’s sexual advances, or take a risk that they would be fired for resisting them. They also faced language barriers and concerns that coming forward could put their status as immigrants at risk. However, two female workers overcame those concerns, filing complaints with the EEOC. They said they had suffered repeated, severe sexual harassment, including:

  • Comments on their looks
  • Sexual propositions
  • Forced kissing
  • Unwanted sexual touching

When they resisted the manager’s advances, they were fired. The EEOC investigated the employees’ complaints, and tried to settle the claim with Food Corp., the legal entity behind Foodtown. But eventually the EEOC was forced to file suit on September 30, 2018.

Negotiations didn’t stop there, though. On August 13, 2019, the EEOC announced that they had finally reached a settlement with the grocery store. They entered into a three-year consent decree, meaning the court will supervise the company’s conduct over the next several years, to be sure they live up to their promises. Those promises include:

  • Paying $285,000 to the workers
  • Adopting new sexual harassment policies and proceedures
  • Training managers and staff on how to identify and prevent sexual harassment and retaliation
  • Offering sexual harassment training in Spanish

Immigrants Have the Right to Be Free from Sexual Harassment at Work

The last aspect of this settlement is possibly the most noteworthy. It reflects the difficulty immigrants often face in understanding and exercising their rights when they don’t fully speak the language. Trainings offered solely in English can only go so far in empowering workers to stand up for their civil rights and report sexual harassment at work. EEOC New York Regional Attorney Jeffrey Burstein said in a statement about the settlement:

“Many employees, especially low-wage and immigrant workers, fear reporting sexual harassment. It took great courage for these women to come forward and participate in this case.”

Many immigrants are also concerned about coming forward in the current political climate. Even those who are lawfully present fear that by reporting sexual harassment their legal immigration status may come under scrutiny and they may be improperly detained or deported. Undocumented immigrants’ fears are even greater. Even though they have the same right to be free from harassment at work, many undocumented workers feel they cannot come forward or report the abuse they suffer to federal agencies for fear of being separated from their families and deported.

New York State Law Requires Sexual Harassment Training in Spanish, or Other Languages, Based on Employees’ Needs

In those cases, it can be comforting for New York workers to know that their state’s Human Rights Law and other civil rights statutes give them even more protection than Title VII of the federal Civil Rights Act. In particular, the 2019 State Budget requires every New York employer to provide annual sexual harassment training to all of its employees. This training should include information on how to report abuse, employees’ rights if they have been harassed, and what they can do to help prevent future discrimination. When a company’s staff is made up of at least 10% of the same non-English-speaking minority group, the state law requires that training to be offered in a language their employees understand.

Perhaps it was the New York training requirements that made the EEOC push for sexual harassment training in Spanish as part of its settlement with Foodtown Supermarket. Or maybe it was simply a desire to protect immigrant workers from such severe forms of sexual harassment. Whatever the reason, by including bi-lingual sexual harassment training as part of their settlement, the EEOC has sent a message that immigrant workers deserve to be treated fairly at work, no matter what language they speak.

At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how to protect your employment rights, without putting your immigration status at risk. If you are an immigrant worker facing sexual harassment or gender discrimination we will help you file the necessary claims at the state or federal level, and, if necessary, represent you in court. Contact us to schedule a consultation.

Civil Remedies for Victims of Sex Crimes

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Download Civil Remedies for Victims of Sex Crimes.

Justice Kavanaugh Faces Calls for Impeachment Following New Sexual Misconduct Claims

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When new sexual misconduct claims went public in September 2019, Justice Kavanaugh, a recent addition to the United States Supreme Court faced calls for impeachment. What would it take to remove a seated justice? Will this new evidence of sexual harassment change anything?

In this blog post, I will discuss the most recent allegations of sexual misconduct against Supreme Court Justice Brett Kavanaugh. I will review the history of Kavanaugh’s appointment and discuss what options advocates have for impeachment now that he has been confirmed onto the Justice on the Supreme Court.

Sexual Misconduct Allegations Against Justice Kavanaugh Date Back to College at Yale

One year ago, on October 6, 2018, Brett Kavanaugh was sworn into the United States Supreme Court. His confirmation hearings in the U.S. Senate had been rife with allegations of sexual misconduct, sexual harassment, and sexual assault. Dr. Christine Blasey Ford provided extensive testimony about how Kavanaugh sexually assaulted her during their time at Yale University, including acting as her own expert on the effect of traumatic experiences on the brain and memory. Ultimately, the Senate was not convinced. Kavanaugh was confirmed by a narrow margin (50 to 48), and allowed to take the bench as a U.S. Supreme Court Justice.

Even then, Dr. Ford wasn’t the only woman claiming Kavanaugh’s days at Yale had been filled with drunken frat parties and sexual misbehavior. Two other women, Deborah Ramirez and Julie Swetnick, also came forward alleging Kavanaugh had engaged in sexual misconduct as a teenager. However, the Senate instructions to the FBI to investigate the allegations were extremely limited, and ultimately Ramirez and Swetnick were not even permitted to testify about their experiences.

New York Times Publishes Sexual Assault Details FBI Couldn’t Investigate

The Senate may have been able to control the scope of the FBI investigation into Justice Kavanaugh, but it could not keep the news media from digging further into the issue. Reporters Robin Pogrebin and Kate Kelly spent 10 months investigating Deborah Ramirez’s claims before publishing articles and a forthcoming book, “The Education of Brett Kavanaugh: An Investigation.”

In their investigation, they learned that Deborah Ramirez was one of the first women of color to attend Yale University as part of its diversity program in the 1980s. Coming from a conservative Catholic middle-class household, she was not prepared for the drinking and sexual play that happened in the dormitories and frat houses. In her freshman year, she attended a drunken dormitory party with Kavanaugh, who was also a freshman at the time. She says Kavanaugh “pulled down his pants and thrust his penis at her, prompting her to swat it away and inadvertently touch it.”

The response to Dr. Ford’s testimony about Justice Kavanaugh’s sexual misconduct, which was objectively more serious and violent, said that if something so outrageous had happened, it would have been “the talk of the campus”. While many senators and FBI investigators found Dr. Ford credible in her own right, Ms. Ramirez’s story has that corroboration investigators were looking for. At least 7 people, including Ms. Ramirez’s mother remember hearing about the Yale incident before Justice Kavanaugh became a public figure. That includes two classmates who heard about it days after the party. However, because of its narrow instructions, the FBI could not interview these people, even when they reached out directly to testify on Ms. Ramirez’s behalf.

The Times investigation also revealed another similar story told by a classmate Max Stier. He saw Kavanaugh pull down his pants and watched as friends pushed his penis into the hands of a female student. That student has chosen not to come forward.

Democratic Legislators Call for Justice Kavanaugh’s Impeachment

In the wake of the Times report, several Democratic legislators including Senators Elizabeth Warren, Kamala Harris, and Bernie Sanders, have called for Justice Kavanaugh’s impeachment. U.S. Supreme Court justices serve life-time appointments once they are confirmed by the Senate. So unlike other politicians who can be voted out for misconduct, justices must be impeached.

The process to impeach a Supreme Court justice is the same as it is to impeach and remove a President. First, the House of Representatives must begin an impeachment investigation, where it will hear testimony and review the evidence against the justice. If they House votes to impeach (by a simple majority), the Senate must hold a trial. For a justice to be removed from his seat, two thirds of the Senators must vote in favor of impeachment.

While the President can be impeached for “treason, bribery, or other high crimes and misdemeanors”, Supreme Court justices are held to the ambiguous standard of “hold[ing] their offices during good behavior.” What that means is up to the federal legislature. If Justice Kavanaugh’s confirmation hearing shows anything, it is that legislators have very diverse opinions about sexual misconduct and good behavior, especially when that behavior happened years ago while Kavanaugh was in college.

It is unclear whether Democrats’ calls for impeachment will gain any traction in the midst of the other political turmoil of the day. Unless it does, Ms. Ramirez, Dr. Ford, and the other women who faced sexual misconduct at the hands of the future U.S. Supreme Court Justice will likely be cut off from receiving any justice of their own.

At Eisenberg & Baum, LLP, team of sexual abuse attorneys work with the victims of sexual misconduct and assault to seek justice for them and their families. We can meet with you and your family at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation through criminal sexual assault charges and civil lawsuits. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

EEOC Swears in Sharon Gustafson General Counsel, First Woman to Do So

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After nearly 3 years without a head attorney, the EEOC has finally sworn in Sharon Gustafson as its new General Counsel. Will the first woman to hold the seat mean stronger protections for women facing gender discrimination, sexual harassment, and pregnancy discrimination? Or will LGBT advocates’ concerns prove true?

In this blog post, I will discuss the appointment of Sharon Fast Gustafson as General Counsel for the U.S. Equal Employment Opportunity Commission (EEOC). I will explain the role of the General Counsel, and how her appointment could affect the agency. I will also discuss the fact that Gustafson is the first woman to have held the seat, and what that could mean for future sexual discrimination cases.

EEOC Fills 3-Year Vacancy for General Counsel

The EEOC’s General Counsel is in charge of the agency’s litigation program. The officer is appointed by the President and confirmed by the U.S. Senate to a 4-year term. But the EEOC has been without its head of litigation since December 2016, when David Lopez resigned.

At the same time, the EEOC has also faced vacancies among its five commissioners. These commissioners oversee the policies, finances, and organizational development of the agency. The EEOC commission is intentionally bipartisan. Three commissioners are selected from the President’s political party and two from the opposition. When Commissioner Chai Feldblum’s term expired on January 3, 2019, there were only two commissioners left. That meant the agency as a whole has been operating without guidance or leadership for most of the year.

Then, on August 2, 2019, the U.S. Senate confirmed Democrat Charlotte Burrows for her second term as Commissioner (through July 1, 2023), and confirmed Sharon Fast Gustafson as the agency’s General Counsel. She was sworn in to the role on August 8, 2019, promising to uphold the charge of the agency to advance equal employment opportunity in the American workplace. In a statement issued by the EEOC, Gustafson said,

“My own experience so far in employment discrimination matters has not been to sit in a high seat, pulling the levers of power. Rather, I have been a solo lawyer most often repre­sent­ing the employee of modest means or the small business employer. My seat has been in a media­tion room, trying to invoke the agency’s remedies to help someone get his job back, to get compen­sa­tion for a wrongful termination, or to preserve the reputation of an employer wrongly accused. I think of my work as having been retail, street-level civil rights litigation. I look forward to using my decades of experience in employment law to conduct the litigation of the EEOC. My goal is to work with the EEOC’s career staff to prevent illegal discrimination in the workplace and to remedy it where it has occurred.”

Sharon Gustafson Becomes First Woman General Counsel to Lead EEOC

Gustafson’s confirmation is a historical moment. She is the first woman to hold the position of General Counsel. All three of the currently seated commissioners are women as well. This could imply that women facing gender discrimination, sexual harassment, or pregnancy discrimination at work may find a more sympathetic ear within the EEOC leadership.

That does appear to be at least partially true in Gustafson’s case. Prior to her confirmation, she worked for over 20 years as a solo employment attorney, representing employees and small businesses in employment cases and before the EEOC. She was also the attorney for Peggy Young, who took a pregnancy discrimination case all the way to the U.S. Supreme Court in 2015. Ms. Young had asked for pregnancy-related accommodations when her doctor recommended she limit how much weight she lifted. Her employer, UPS, refused those accommodations, which meant that Ms. Young lost her employee medical coverage at a time when she needed it most. Through Gustafson’s advocacy, the U.S. Supreme Court ruled that an employer is required to provide the same reasonable accommodations to pregnant women as they would any other employee with similar medical restrictions.

Civil Rights Groups Warn Against What Gustafson’s Confirmation Means to LGBT Workers

But not everyone is happy about Sharon Gustafson stepping into the role of EEOC General Counsel. Prior to her confirmation, a coalition of civil and human rights organizations wrote to the Senate Committee on Health, Education, Labor, and Pensions with concerns over how she will treat the rights of LGBT workers who file complaints with the EEOC. The Trump Administration’s treatment of gay and Trans* citizens has been checkered at best. While the EEOC has maintained its policy that Title VII of the federal Civil Rights Act protects against sexual orientation discrimination, the Department of Justice has argued to the Supreme Court that the law doesn’t apply to the rights of Trans* worker Aimee Stevens. The National Women’s Law Center and other advocacy groups are concerned that under Gustafson’s leadership the EEOC will fall short of “faithfully and robustly enforc[ing] civil rights laws and protect[ing] these vulnerable communities from unlawful discrimination.”

With Gustafson and Burrows’s confirmations, the EEOC will once again have the ability to create and modify policies and procedures for the agency. Given the civil rights groups’ concerns, it remains to be seen if these new changes will be to the benefit of women and LGBT workers, or if the EEOC will go the way of other agencies within the Trump administration, and away from underprivileged citizens across the country.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law. We know how to navigate the landscape of sexual orientation discrimination and gender identity discrimination. If you are gay or transgender and looking for help ending discrimination at work, contact us today to schedule a free consultation.