What to Do Before You Report Sexual Harassment to the EEOC

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You’ve had enough of the jokes, the comments, and the inappropriate touching. You’re ready to get help. But should you head straight to court? What should you do before you report sexual harassment to the EEOC or your state anti-discrimination agency?

In this blog post I will discuss how to prepare to report sexual harassment or gender discrimination to the Equal Employment Opportunity Commission (EEOC) or the New York Department of Human Rights. I will provide strategies for employees facing a hostile work environment, and tips for what to do before you report sexual harassment to the EEOC.

Gather Your Proof of Sexual Harassment

At the first sign of sexual harassment, when you first start to consider whether you should file a report with the EEOC, you should start the process of gathering your proof right away. What that means will depend on the type of sexual harassment you were exposed to, and when and where it happened. It could include:

  • Printing, copying, and saving copies of the offensive emails, chat dialogs, or images
  • Keeping a journal that describes what happened, when, by whom, and how you felt about it
  • Taking pictures of the place where the sexual harassment happened
  • Talking to people who witnessed the event and asking them to write down their experiences
  • Preserving copies of any complaints you made to your supervisor or HR department

It is important to gather this proof in a way that you can take with you even if you eventually have to leave your company or are fired. Retaliation is illegal, but sometimes people do lose their jobs when they report sexual harassment. You need to be prepared by maintaining a hard-copy file off-site or at least sending everything to a personal email address.

File Internal Complaints

Before you report sexual harassment to the EEOC or file a lawsuit in federal court, you may need to “exhaust your remedies” through filing internal complaints. That means you have done everything you could in-house before turning to an outside agency. This could include reporting the sexual harassment to your HR department or supervisor. If you are in a union you may need to go through the grievance process.

Even if you are not legally required to file internal complaints, it can still be important to your EEOC complaint that you do. For conduct to be considered sexual harassment, it needs to be unwanted. If you haven’t filed internal complaints, you may face defenses from your employer that the sexual conduct was consensual or that you were playing along with the sexual banter or jokes in the office. Filing an internal complaint, or even publicly asking your harasser to stop can help fight back against these defenses and make sure your report of sexual harassment to the EEOC can continue and you can get the relief you need.

Talk to a Sexual Harassment Lawyer Before You Report Sexual Harassment to the EEOC

More than any other step you can take before you report sexual harassment to the EEOC, you should make an appointment to talk to a sexual harassment lawyer. First, an attorney with experience at the EEOC and in court can help you decide whether filing a report will get you the relief you are looking for. An attorney can help you look at what happened to you objectively and evaluate whether it reaches the point where a judge may say sexual harassment has occurred.

Next, a discrimination attorney can help you prioritize what relief you want:

  • Getting your job back
  • Having the harasser removed
  • Changing policies and practices at work
  • Receiving compensation for lost time at work and medical expenses related to the stress
  • Making a clean break and finding a new position with a positive recommendation

Some of these goals are best served by reporting the sexual harassment to the EEOC or filing a federal lawsuit. But in other cases, those complaints may raise the stakes of your case unnecessarily and increase the chances that your relationship with your employer will be broken beyond repair.

You don’t officially need a lawyer to report sexual harassment to the EEOC. But deciding whether to file, when to make the claim, and how to prove your case aren’t easy choices. They shouldn’t be made alone. At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys know that the decision to take action happens long before you report sexual harassment to the EEOC. We have a variety of tools at our disposal to end the harassment and get you back to work, if that’s the outcome you want. Contact us to schedule a consultation at our office in New York City, or over the phone.

Gender Pay Gap Widens at Top Law Firms

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Differences in the income of men and women happen at every point on the pay scale. From blue-collar workers to white-collar professionals, women often have to fight to earn as much as their male counterparts. Now the most recent study of top law firms shows that the gender pay gap for law partners is not going away. If anything, it is getting wider.

In this blog post I will discuss the partner compensation study by Major, Lindsey & Africa, which reveals male partners earn 53% more than female partners at top US law firms. I will discuss how the Equal Pay Act protects women from being paid less than men for the same work, and explain how challenges enforcing the law allow the gender pay gap to continue over the years.

Survey of Top Law Firms Shows Women Partners are Falling Behind

Every two years, the market research firm Major Lindsey & Africa puts together a Partner Compensation Survey, measuring the payment of attorneys at the nation’s top law firms. Over the years, past surveys have shown the gender pay gap widening, from 32% in 2010, to 48 percent just two years later. While women made slight advances in 2014 and 2016, female partners were still receiving over 40% less than male partners who responded to the survey.

In its most recent version, published in December 2018, the Major Lindsey & Africa partnered with legal the market intelligence firm Acritas. It added extra questions to examine the gender pay gap so that researchers could investigate the reasons behind the widening pay differential. The survey was emailed to over 63,000 partners at large and mid-size law firms across the country. There was also a LinkedIn advertising campaign. All together, nearly 1,400 partner-level attorneys responded to the survey.

The result was that the gender pay gap among attorneys had widened once again, up to 53%. The average compensation for all study participants was $885,000. But while men made an average of $959,000, women made far less: $627,000. Only one female partner was among the top wage earners earning over $4.1 million.

Law Firms Blame “Origination” and Practice Areas, Not Discrimination

The press release announcing the report warned against reading the results of the survey too broadly, saying that the volunteers who responded to the survey aren’t necessarily the same.  Lucy Leach, technical research director of Acritas, also said the survey data “doesn’t suggest a conscious bias against women.” Instead she blamed the way compensation is calculated among the nation’s largest law firms.

In BigLaw, partner compensation is often based on credit for “originations” and hourly billing rates. In general, the more new clients attorneys bring in, and the more hours they spend working for those clients, the higher their compensation. Leach said this payment structure “may fail to recognize other contributions to firms and may be putting women at a disadvantage.”

According to the 2018 survey results, men were credited with $2,788,000 in originations, compared to $1,589,000 for women. They also billed at higher rates. The average billable hour for male partners was $736. For women it was $650. Industry experts say these differences have to do with how much women work compared to men, and the practice areas they tend to choose to work in. However, at least one study has shown that gender discrimination is based more on how women are perceived than the work they do.

Equal Pay Act Helps Women Close the Gender Pay Gap

The federal Equal Pay Act is designed to protect against a growing gender pay gap. It requires employers to pay men and women equal pay for equal work. As long as the work they are doing is substantially similar, the Equal Pay Act says men and women should be paid the same. When that doesn’t happen, underpaid employees can file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court.

The Equal Pay act doesn’t require the worker to show the pay gap is because of gender. Once a female worker and her employment discrimination attorney show that the gender pay gap exists, it is up to the employer to show why she is not paid as much as her male counterparts. Unfortunately, for partners at law firms and others who are paid based on the jobs they bring in or based on an hourly rate set by the company, it can often be difficult to show that differences in pay are the result of wage discrimination, instead of some other, gender-neutral factor.

In these fields, it takes the help of a experienced wage discrimination team to develop a case. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to show that a gender pay gap is because of decisions made by the company, not the worker. We know how to fight back against claims of neutral application of skewed compensation structures. Contact our gender discrimination attorneys today to start fighting for equal pay in your work.

What to Do If Your Contract is Terminated for Reporting Sexual Harassment

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When you report sexual harassment on the job, sometimes you take your career in your hands. W-2 employees can file a retaliation claim under gender discrimination laws through the EEOC or local authorities. But what about independent contractors or contract workers? What can you do if your contract is terminated for reporting sexual harassment?

In this blog post, I will review a report that actor Eliza Dushku was written off the CBS show “Bull” for reporting sexual comments that made her uncomfortable on set. I will discuss what retaliation can look like for contract employees, and what to do if your contract is terminated for reporting sexual harassment.

Actress Eliza Dushku’s Contract is Terminated for Reporting Sexual Harassment

Sexual harassment retaliation can happen to anyone, at any level, in any industry. In March 2017, it happened to Eliza Dushku. The actress is most well known for the role of Faith in “Buffy the Vampire Slayer” and its spin-off show “Angel”, as well as “Dollhouse” and “Banshee”. More recently she had signed on to play the role of criminal defense lawyer J.P. Nunnelly on the CBS series “Bull.” Initially brought on as a love interest for the show’s star, Michael Weatherly, Dushku impressed producers and she was promised the role was headed for more.

But then, Mr. Weatherly began making sexually inappropriate comments. According to a New York Times report, the TV star made remarks about Dushku’s appearance, joked about rape, and made reference to a threesome. Ms. Dushku confronted Weatherly, objecting to the comments. Then suddenly, she was written off the show in a move she believed was motivated by sexual harassment retaliation.

After Ms. Dushku’s contract was allegedly terminated for reporting sexual harassment, she and her employment discrimination attorneys entered a confidential settlement with CBS. The company ended up paying her $9.5 million — the equivalent of four seasons worth of work. CBS also promised to improve working conditions following the settlement.

Options Available to Contract Workers Facing Sexual Harassment Retaliation

When your industry relies on contracts and gigs instead of permanent employment, enforcing anti-harassment laws can be challenging. Federal anti-discrimination laws prevent employers from considering sex or gender, or past reporting of sexual harassment claims in making employment decisions. Retaliation is a claim all on its own. So even if the conduct reported didn’t amount to gender discrimination or sexual harassment, you are still protected from being fired for reporting it or participating in an investigation. The definition of retaliation is broad enough to include any “adverse employment decision.” That include hiring and firing, but it also is broad enough to include not renewing or terminating a contract for an independent contractor or short-term worker.

For New York contract workers, there are additional protections available under the New York State Human Rights Law. The law is written broadly, to protect employees, non-employees, vendors, and anyone else providing services to a business. That means when a New York contractor’s contract is terminated for reporting sexual harassment, he or she can file a complaint with the Division of Human Rights just as though he or she was a full-time employee.

When contract workers report sexual harassment, they are often rightfully concerned their contracts won’t be renewed at the end of their term. Contract-based employment is less stable by nature. Actors like Ms. Dushku may find their show has suddenly taken a different turn. Consultants may find their clients have decided to “go another way”, often without any further information about why. That can leave the former employee with little more than a hunch that retaliation has occurred. When contract workers bring their former employers to court, the companies often claim the decision not to renew the contract was based on anything from budget to “economic factors” to vague references to “fit”.

When that happens, you need an experienced sexual harassment attorney to stand up for your right to be free from retaliation in your job. At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys know you don’t have to earn a salary to face sexual harassment retaliation. When your contract is terminated for reporting sexual harassment, we know how to make federal anti-discrimination laws and the New York State Human Rights Law work for you. Contact us to schedule a consultation at our office in New York City, or over the phone.

Planned Parenthood Employees Face Pregnancy Discrimination

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When women want to start a family, having their employer’s support can be an important factor in the decision. Knowing you can follow doctor’s orders for light work, bed rest, or other pregnancy-related restrictions is crucial. But even at progressive women’s health organizations like Planned Parenthood employees face pregnancy discrimination when they try to do what is right for their babies.

In this blog post I will review a report that Planned Parenthood employees face pregnancy discrimination at work. I will review the federal laws that protect pregnant employees and discuss options available if your employer punishes you for having a child or pressures you to return to work before you are medically able.

Planned Parenthood Accused of Pregnancy Discrimination

Pregnancy discrimination can happen anywhere, from the largest corporation to the smallest non-profit. But when the New York Times recently published an article about how Planned Parenthood employees face pregnancy discrimination, some were struck by the hypocrisy.

The article featured employees like Ta’Lisa Hairston, who worked for the Planned Parenthood clinic in White Plains, New York. Hairston’s pregnancy resulted in high blood pressure causing her nurse to direct her to take it easy and take frequent breaks. But managers at the women’s reproductive health facility ignored Hairston’s pregnancy-related medical restrictions. They continued to force her to work long hours without breaks, often working through lunch. Hairston told the New York Times:

“I had to hold back tears talking to pregnant women, telling them to take care of their pregnancies when I couldn’t take care of mine,” she said. “It made me jealous.”

Hairston wasn’t the only one forced to ignore doctors’ orders. Planned Parenthood employees face pregnancy discrimination across the country, the article claims. It describes managers passing over pregnant women for promotions or job opportunities. It tells the stories of pregnant mothers forced to work long hours, or being afraid to take time off for fear of losing their jobs.

Pregnancy Discrimination is a Common Problem in Cash-Strapped Companies

Pregnancy discrimination is especially common in non-profit organizations and small businesses that operate on tight bottom lines. Employers blame the cost of paid parental leave and of hiring temporary replacements for mothers on unpaid maternity leave. Often, when a new mother is ready to return to work, she finds she has already been replaced.

Judit Rigo was an employee of Natera, which offers genetic testing for pregnant women. Leading up to her maternity leave, she trained another, less senior employee, to fill in for her. She told the New York Times that when she was ready to come back, that junior employee was now her boss.

What to Do When Employees Face Pregnancy Discrimination

Just because this behavior is common, doesn’t mean there is nothing to be done. The Pregnancy Discrimination Act protects employees faced with choosing between their family or their job.

The Pregnancy Discrimination Act of 1978 makes it illegal for employers to treat women differently because they are pregnant, have recently had child, or are suffer pregnancy-related medical concerns. Employers are prohibited from considering a woman’s pregnancy in employment decisions like:

  • Hiring
  • Firing
  • Pay rates
  • Job assignments
  • Promotions
  • Layoffs
  • Training
  • Fringe Benefits
  • Insurance coverage

Even if a woman isn’t pregnant, if she has been passed over or treated worse because an employer expects her to have children, she may still have a claim under federal law.

When employees face pregnancy discrimination, they are entitled to file a claim with the Equal Employment Opportunity Commission (EEOC), or file a lawsuit in federal court. In either case, the employee may be able to receive:

  • Accommodations for their pregnancy-related medical needs
  • Assignment to light duty
  • Equal access to paid or unpaid disability leave (depending on what is offered to other employees)
  • Equal insurance coverage
  • Reinstatement to pre-pregnancy positions (or their equivalent)
  • Back pay
  • Front pay (when re-employment is not possible or desirable)
  • Changes to company policy for future workers

For many new mothers, the idea of facing their employer in court can be overwhelming. With the new responsibilities involved in caring for your baby, you may not be able to put energy toward fighting back against pregnancy discrimination. But you don’t have to fight alone.

At Eisenberg & Baum, LLP, our employment discrimination attorneys are here to help. We will review your case and guide you through considering your options, from an informal letter to your employer to a full federal lawsuit. Whether you work for a large company, small business, or non-profit entity like Planned Parenthood, we will help you meet your goals and get back to work. If you are facing pregnancy discrimination, contact us today to schedule a free consultation.