Is Pornography at Work Sexual Harassment?

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When nude pictures make their way onto the factory floor, or start to spread through the office chat system, it can easily turn a happy work day into an uncomfortable event. But is pornography at work sexual harassment? Can you report it without having to worry about retaliation?

In this blog post I will review a complaint filed by the EEOC against Protocol Restaurant based in part on claims that the owner distributed pornography at work. I will review the definitions of sexual harassment and a hostile work environment. I will also discuss employees options when inappropriate pictures make the rounds at work.

Pornography in the Workplace: Sexual Harassment Waiting to Happen

Pornography can pop up anywhere. Whether you work in an auto-body shop or an executive office, you may have coworkers who view or share pornography on the job. They may hang inappropriately sexualized images around the shop floor, or send nude photos over email or the office chat system. Maybe they keep it as a background image or screen saver on their own computers, or play videos with disturbing sexual audio in their cubicles.

No matter the form it takes, pornography at work is a sexual harassment problem waiting to happen. Unless you work in a very particular industry, there is no reason for any employee to be viewing pornography at work. Most companies explicitly ban the practice in their employee handbooks. But that doesn’t mean employees aren’t sneaking it in and using it in ways that make their coworkers uncomfortable.

Sexual harassment under Title VII of the federal Civil Rights Act can happen any time comments or behavior based on a person’s sex or gender make it hard for them to work, or create a hostile work environment that would make a reasonable person uncomfortable on the job. The presence of pornography at work can very easily create a hostile work environment by raising issues of sex, sexuality, and lewd behavior where they have no purpose. When an employee’s objections about the presence of sexual images go unanswered, the employer’s silence can create the basis for a sexual harassment lawsuit.

EEOC vs. Protocol Restaurant Takes on Pornography at Work

That’s what happened when the Equal Employment Opportunity Commission (EEOC) sued Protocol Restaurant in Buffalo, New York for sexual harassment. The lawsuit accuses Paul Pelczynski, the restaurant’s owner, of a variety of sexually offensive conduct targeting the women who worked for him, including:

  • Unwelcome sexual advances
  • Repeated invitations for drinks
  • Offers to share hotel rooms
  • Comments about their bodies
  • Grabbing their bodies
  • Kissing them
  • Brushing up against them
  • Displaying pornography at work
  • Sending pornographic group texts

When the restaurant’s female employees complained or told Pelczynski no, they were fired. Others quit because they could no longer put up with the sexualized and hostile work environment.

Finally, some of Protocol’s employees turned to the EEOC for help. After attempts at pre-litigation settlement failed, the agency filed suit in EEOC v. Protocol of Amherst, Inc., Civil Action No. 1:19-cv-00598 in U.S. District Court for the Western District of New York, Buffalo Division. The lawsuit seeks damages on behalf of the employees including:

  • Back pay
  • Compensation for harm caused by the sexual harassment
  • Punitive damages based on the severity of the conduct
  • Changes to company policy to prevent future sexual harassment at work

Jeffrey Burstein, regional attorney for the EEOC’s New York District Office said in a statement:

“Owning a business is not a license to sexually harass employees. . . . Business owners have a duty to protect employees from sexual harassment, and the EEOC is prepared to take strong action where an owner abuses his authority.”

Retaliation for Reporting Porn at Work

Even though pornography has no place at work and is against most company policies, employees are still often hesitant to report it. That is especially true when the person sending out the images is a manager, supervisor, or owner (like Pelczynski). Just like in the Protocol case, employees worry that if they call out their bosses for sexually inappropriate imagery they are going to face retaliation, suffer even more sexual harassment, or even lose their jobs.

The good news is that the same state and federal laws that protect against sexual harassment, including pornography at work, also prevent employers from retaliating when an employee complains. Even if you weren’t the one negatively affected by the images, the law says that your employer may not discipline you for speaking out. When it does, you have the right to file a claim with the EEOC or in state or federal court.

Extra Protections for New York Employees Against “Revenge Porn”

Having to endure any naked bodies when you are trying to work is hard enough. But when you are the subject of the photos it can be humiliating. Many victims of so-called “revenge porn” at work find themselves resigning rather than facing coworkers who have seen them exposed.

That’s why New York City and New York State have each passed laws making it a crime to distribute nude pictures of another person without his or her consent. Section 10-177*3 of the NYC Administrative Code makes distributing, or even threatening to distribute revenge pornography at work a criminal misdemeanor with a penalty of up to one year in jail.

On the state level, using intimate pictures or video to humiliate someone or cause them emotional, physical, or financial harm is a Class A misdemeanor, punishable by up to 1 year in prison and a $1,000 fine. The state law also gives the victims of revenge porn the power to sue their harassers, and in some cases their employers, for the harm caused. They can also get a court order to get the pictures taken down from social media or workplace servers, to help them repair their reputation and move past the humiliating event.

Pornography has no place at work. But when it finds its way there anyway, employees need to know there are laws to protect them. At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys know how to use federal and state anti-discrimination laws and local and state revenge porn laws to get you the protection and compensation you need. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help you plan a strategy to put an end to pornography at work. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.

Whose Side are They On: Unions in Sexual Harassment Claims

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Unions hold themselves out as protecting workers in a number of industries — from actors to actuaries. They represent musicians and tradespeople, as well as municipal staff and employees of large corporations. When sexual harassment happens in a unionized workplace, it can raise questions about whose side the union is really on, and about the role of unions in sexual harassment claims.

In this blog post I will discuss what role unions play in sexual harassment claims by unionized workers. I will discuss whether you need to file a complaint with your union rep, and why you might find yourself facing off against unions in sexual harassment claims.

Title VII Applies to Employers, Not Unions

When you are facing sexual harassment at work, you can use Title VII of the federal Civil Rights Act as a shield. Like many states’ laws, Title VII makes it illegal for your employer to make employment decisions (like hiring, promotions, salary adjustments, or shift assignments, among others) based on an employee’s willingness to respond to a supervisor’s sexual advances. It also requires employers to respond to complaints of sexual harassment by supervisors, between coworkers, or involving customers or clients.

Title VII doesn’t directly apply to unions. The protections offered under the statute depend on the existence of an employment relationship. While the New York State Human Rights Act defines the scope of protection more broadly, under federal anti-discrimination laws a union representative has no duty to review or respond to sexual harassment claims.

That said, many unions explicitly take on the duty to respond to reports of sexual harassment by coworkers in their Codes of Conduct or collective bargaining agreements. In those cases, your union can sometimes actually slow down your ability to go to court over sexual harassment claims. If your company’s internal processes require a thorough union grievance process, you may have to finish all those appeals before you are eligible to file a claim with the Equal Employment Opportunity Commission or in federal court.

Could Your Union Rep be Working Against You?

Many unionized employees are surprised to learn that the traditional union relationship does not include help when you are filing sexual harassment claims. In fact, at its most straight-forward, it is the union’s job to protect your harasser’s employment. According to a recent New York Times article on the issue:

“The old union way was just defend the member at all costs, fight the disciplinary action,” said Leonard Egert, the national executive director of the guild, also known as AGMA.

That means when your employer is quick to react to allegations of abuse, by suspending or firing the employee in question, the unions can sometimes be legally required to help them fight to get their jobs back.

That’s what happened at the New York City Ballet when Alexandra Waterbury, a former student at the School of American Ballet, raised sexual harassment claims against fellow dancer Amar Ramasar, a star within the company. She reported that her ex-boyfriend had shared texts containing sexually explicit photos and videos of her without her consent. Mr. Ramasar was also accused of sharing nude photos of another dancer with Ms. Waterbury’s ex-boyfriend. In response to the allegations, the Ballet suspended Ramasar and another dancer named in Ms. Waterbury’s lawsuit. But then it learned that several of its dancers would be uncomfortable if the men returned, so the company fired them.

That’s where the union came in. The AGMA represented Ramasar and the other dancer in defending against employment termination, saying that the men had not been given an opportunity to defend themselves against the claims. It said firing the two men was too severe a punishment. Eventually, a private arbitrator agreed and Ramasar was reinstated (the other dancer chose not to return to the company).

Sexual Harassment Claims Pit Unions Against Themselves

Several unions are adjusting their approach to sexual harassment claims, particularly in the arts and entertainment industries. Many have adopted new codes of conduct that provide for the right to a safe, harassment-free workplace, and create ways for victims to file sexual assault complaints with the union directly.

But doing so could create a strange situation of pitting your union against itself in its duty to represent all the company’s employees. If you file sexual harassment claims with your union, and it takes on the responsibility to represent you in that complaint, that doesn’t eliminate its duty to your coworker who harassed you. Some unions are having to assign different staff members to each side of the case. In those instances, you could end up with the union working against itself and its own ends.

That’s why, even if you are entitled to union representation, you may want to hire a private attorney to represent your sexual harassment claims to your employer. If you rely on the union representative in a claim against a coworker, it may not be entirely clear who they are representing, and you may find the resolution leaves you wanting something more.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys work with employees in unions in New York and across the country. We know how to make the most of union grievance processes, and when you can work around them to get resolution faster. Contact us to schedule a consultation at our office in New York City, or over the phone.

New York Gives Hope to Child Victims of Abuse and Pornography

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The New York Child Victims Act took effect on August 14, 2019. The extended time limits and one-year grace period built into the law give the young victims of abuse, incest, and pornography time to heal without missing their chance in civil court. As sex abuse and sexual harassment attorneys, we can help make sure our clients see justice done.

In this blog, I will discuss how the Child Victims Act gives the victims of child abuse, incest, and child pornography an opportunity to file civil claims against their abusers on their own timetable. I will explain how important these extended time limits are to the victims of childhood trauma. And I will explain how the sex abuse and sexual harassment attorney Adriana Alcalde can help you and your family protect your rights.

New York’s Old Law Made Parents Gatekeepers to Child Victims’ Cases

New York state used to have one of the strictest statutes of limitations on sex abuse in the country. This law limited the ability of state prosecutors and civil lawyers to seek justice on behalf of the state’s youngest victims. With only a 5-year window after the child turned 18, most cases depended on a young victim’s parents taking action. The trouble was, in many cases, they simply didn’t know what had happened to their children.

For example, New York Catholic dioceses have released the names of hundreds of “predator priests” who targeted children within their own congregations for sexual abuse. The church on the local and regional levels has only just come forward with these names, even though some incidents were reported years ago. If a parent of the victim of one of these predator priests didn’t know about their behavior, they may have overlooked signs the child had been the victim of sexual assault. By the time a young victim learned about his or her own right to sue, it may have been too late.

New York Child Victims Act Gives Young Victims Decades to Heal

But then, in January 2019, the New York state legislature finally passed a law relaxing the time limits and giving more sex abuse victims access to the courts. The Child Victims Act extends the statute of limitations for criminal and civil cases. It takes what was once one of the strictest laws and turns it into one of the nation’s most forgiving time limits.

Criminal cases keep that 5-year time limit, but now, the clock won’t start running until the victim turns 23 or the case is reported to the proper authorities. That gives the victims of these cases time to get through college and more before they have to worry about coming forward.

The time limit on civil cases involving sex abuse, incest, or child pornography with a child victim are even longer. The victims in these cases have until age 55 to file their claim. In addition, the statute includes a one-year window for anyone to file a child victim lawsuit, no matter how old. It also allows for old cases to be reinstated if they were dismissed for being filed too late or without the proper notice.

Long filing deadlines are essential in these kinds of sex abuse cases. The victims of these traumatic crimes often take years or even decades to come to terms with what has happened to them and heal from the emotional wounds they suffered. In many cases, they require the help of therapists, family, and support systems to overcome the power imbalance between abuser and abused and finally stand up for their rights. The old, shorter statutes of limitations created a terrible choice for the victims of these crimes: wait until you’re ready and possibly miss your chance at justice, or take the stand too soon and risk retraumatizing yourself in the process. Under the new statute, child victims will be able to heal first without having to give up their rights.

Sex Abuse Attorney Adriana Alcalde Helps Child Victims Fight Back

When the time is right to take the matter to court, the team at Eisenberg and Baum is here to help. We operate on the philosophy that no one should get away with sexual abuse.  Attorney Adriana Alcalde and a team of attorneys and staff fight back against sex abuse and sexual harassment. Alcalde has over 15 years of experience helping the victims of domestic violence, sexual assault, police misconduct, human trafficking, and child pornography. She is a former prosecutor with experience in the Sex Crimes, Special Victims, Domestic Violence, and Crimes against Children units. Alcalde has tried over 150 cases, including many that got significant media attention.

All that experience allows Adriana Alcalde and the rest of the Eisenberg & Baum sexual abuse attorneys to stand beside child victims and their families in the courthouse and during press interviews, giving them the chance they need to tell their story and see justice done. Whether your loved one was targeted 5 days ago or 5 years ago, she can help them decide when and how to file a claim and receive the compensation they deserve for the harm they have suffered. Contact us today to schedule a free consultation.

Alleged “Fraternity Culture” at One Top Law Firm Blamed for Equal Pay Act Violations

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Do you have to be “one of the boys” to get the best projects, and the best pay, at your work? A lawsuit against one of the top law firms in the country says the firm’s “fraternity culture” led to gender discrimination and Equal Pay Act violations. And the plaintiffs are asking for a big payout.

In this blog post I will review a lawsuit against Jones Day for Equal Pay Act violations. I will explain how the firm’s alleged “fraternity culture” was blamed for unequal pay to women associates and resulted in gender discrimination and illegal treatment based on their pregnancy and maternity.

Complaint Calls Out Jones Day for Gender Discrimination, Pregnancy Discrimination, and Equal Pay Violations

On April 3, 2019, Sanford Heisler Sharp, LLP filed a complaint against one of the country’s biggest law firms: Jones Day. The complaint outlined the experiences of 6 women, Nilab Tolton, Andrea Mazingo, and four who remained anonymous trying to get ahead in Jones Day’s competitive work environment. According to the complaint:

“In Jones Day’s fraternity culture, male brotherhood is affirmed and strengthened by comments and conduct that derogate women, leaving female associates to choose between capitulation and exclusion.”

The complaint describes a corporate culture that gave more opportunities to male partners and associates, while exposing women to sexual harassment, gender discrimination, pregnancy discrimination, and unequal pay.

Gender Discrimination and Equal Pay Violations at Jones Day

The core of the complaint centers around Jones Day’s fraternity culture, which the plaintiffs’ attorneys say gave male associates an advantage in career advancement. It claims:

“Jones Day’s fraternity culture presents female attorneys at Jones Day with an unpalatable choice: participate in a culture that is at best inhospitable to women and at worst openly misogynistic or forego any hope of success at the Firm. For a female associate to succeed at Jones Day, she must at least tolerate the stereotyped expectations of the Firm’s male powerbrokers. To challenge these expectations by word or deed, even in settings ostensibly provided for ‘honest’ feedback, is career suicide.”

Within this environment, male associates are partnered with mentoring senior partners, who guide them toward promotion and advancement. Women, however receive inadequate access to high-impact work, mentorship, or support. Advancement decisions at the firm are also disturbingly subjective and susceptible to gender stereotyping and bias. All partnership and pay decisions are made by a single Managing Partner, Steve Brogman, based on “consensus statements” about the employee’s work over the past period. These reports are notoriously cherry picked to justify Brogman’s decisions. Nor are staff permitted to keep copies of the “consensus statement” after their review meeting.

Pregnancy Discrimination Against Partners and Associates

When women fail to advance within this fraternity culture, the complaint says that it is often because of gender stereotypes and assumptions about mothers’ commitment to the firm.

“The tireless, childless female associate is inadequately ‘fun’ and excessively ‘intense’; the high-performing associate mother of small children is ‘deadline-challenged,’ or lacks ‘commitment.’ ”

Plaintiff Nilab Tolton said that when she asked about the firm’s maternity leave policy she was immediately seen as a problem child, despite her credentials as a Harvard-educated attorney. When she did become pregnant, she returned to find her salary frozen, negative reviews on her record, and less access to work opportunities. After her second child’s birth she was simply told to find a new job.

Sexual Harassment Among Top Law Firm Employees

Jones Day’s fraternity culture also manifests in overt instances of sexual harassment and abuse, according to the complaint. When they seek out a male patron to aide their career, they are often met with sexual harassment and abuse from those male partners who they are relying on to provide them work.

The complaint also alleged a number of sexual harassment violations by Jones Day employees including:

  • Demands for female attorneys to sing and dance
  • Requiring a female associate to climb over male associates to leave a table at a restaurant
  • Pushing a female associate into a swimming pool during a party at a partner’s home
  • Sexualized comments about female employees’ clothes, high heels, or smiles

The fraternity culture is so prominent that Jones Day’s male attorneys mock complaints over gender discrimination that happens at the firm, making jibes like “add it to the file” when they make sexist comments or jokes.

Class Action Seeks to Change Fraternity Culture at Jones Day

Tolton, Mazingo, and the other plaintiffs aren’t just looking for a payout for themselves. They have filed the complaint as a class action, saying that all the women in the workplace at the law firm has been affected by gender discrimination, pregnancy discrimination, and equal pay violations. The six representative plaintiffs want the court to find that Jones Day must:

  • Compensate men and women equally for substantially similar work under the Equal Pay Act.
  • Implement training and programs to eliminate the hostile work environment under the gender discrimination portions of Title VII of the Civil Rights Act and the Pregnancy Discrimination Act.
  • Promote and compensate female attorneys in a non-discriminatory way.
  • Pay money damages for lost pay, benefits, penalties, and other financial losses.
  • Pay punitive damages to all members of the class.
  • Pay fines, waiting time penalties, and civil penalties under the Pregnancy Discrimination Act
  • Pay the plaintiff’s attorney fees, costs, and interest

All together, the amount of money damages requested is $2,000,000. The injunctive relief and process of changing their policies and systems could cost the famous law firm far more.

When a fraternity culture turns a workplace into a locker room, it is often the women who take the brunt of damage. Whether in the form of sexual harassment, gender discrimination, pregnancy discrimination, or equal pay violations, employers in male-dominated industries like law can put up obstacles that women must work hard to overcome.

At Eisenberg & Baum, LLP, we aren’t afraid to take on big employers with fraternity cultures and deep histories of harassment and discrimination. We can help you find allies at your office, coordinate your claims, and file the right complaints with the Equal Employment Opportunity Commission (EEOC) and in federal court make the most of your sexual harassment or gender discrimination claims. Whether you have faced sexual harassment, gender discrimination, pregnancy discrimination, or equal pay violations, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.

Sexual Harassment on Campus: What are Students’ Rights?

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If you are the target of sexual harassment on campus it can feel like you are being forced to choose between your emotional and physical health and your future. But if you are attending one of the more than 7,000 colleges and universities that receive federal funding, Title IX gives you the right to be free from sexual harassment and sexual violence at school.

In this blog post, I will review claims that Michigan State University encouraged female students not to report sexual harassment and assault by student athletes. I will discuss how Title IX protects students’ rights when they face sexual harassment on campus, and what to do if the school isn’t following the rules.

Michigan State University Said to Discourage Students from Reporting Sexual Harassment on Campus

Michigan State University has come under fire in recent years because of the way it handled numerous claims of sexual assault by athletic physician Larry Nassar against athletes including gymnasts. But it turns out the allegations go beyond any one person’s misconduct. Bailey Kowalski and several others have filed an anonymous lawsuit against the university for violations of Title IX. They say that the university’s staff had discouraged them from reporting sexual harassment and assault when their abusers were student athletes.

In Kowalski’s case, she was 19 when she was invited to a party by a member of the MSU Basketball team after they competed in the 2015 Final Four playoffs. She accepted a ride, but when she arrived at the off-campus apartment, no one was there. Three players then took turns raping Kowalski, according to the lawsuit. When she reported the incident to the Michigan State University Counseling Center a week later, the counselor was initially supportive, but then changed her response once she learned that the abusers were student athletes.

The counselor insisted on having another person present and advised Kowalski not to have a physical exam or pregnancy or STD testing. She was not told of her student rights under Title IX, and was instead told that in cases with “guys with big names” the best thing to do was “just get yourself better.” As a result, Kowalski dropped out of college for a time and received counseling for PTSD. She also changed her major, abandoning a career in sports journalism.

Other plaintiffs in the lawsuit have not come forward, but the complaint tells their stories. One woman was raped by two football players in 2009 and was not told she had Title IX rights. Another reported rape by three basketball players in 2010, but those complaints never made it past the athletic department.

What are Students’ Rights Under Title IX?

Title IX of the Education Amendments of 1972 applies to sexual harassment on campus, including sexual violence, rape, and sexual assault. The law prohibits discrimination based on sex within educational facilities, programs, and activities that receive federal financial assistance. That includes approximately 16,500 public school districts; 7,000 colleges, universities, and postsecondary vocational schools, charter schools, for-profit universities, libraries, and museums.

When a school receives reports of sexual harassment on campus, or even when it reasonably should know that possible sex-based harassment is occuring, Title IX requires the school to immediately investigate the reports. If the investigation reveals that sex-based harassment denied or limited a student’s ability to participate in or benefit from the school’s educational programs or activities by creating a hostile educational environment, it must take prompt and effective steps to correct the problem. This can include:

  • Stopping the harassment
  • Eliminating the hostile environment
  • Preventing future abuse or violence
  • Remedying the effects of what has already happened

What to Do if Schools Discourage Title IX Reports

Ms. Kowalski and the other plaintiffs in the MSU case say that the school failed to meet those requirements under Title IX. Their complaint claims that they were not told of their rights under Title IX, and that they were discouraged from filing sexual harassment reports. Those who did file reports claim that the investigation was never referred to the Title IX office, and was instead kept within the athletic department.

When schools fall down on their obligations under Title IX to end sexual harassment on campus, students have the right to file a complaint with the Office of Civil Rights (OCR), which enforces the statute. The OCR will then investigate the complaint and attempt to resolve the problem by implementing new anti-harassment policies and procedures, as well as addressing the particular claims of sexual harassment, assault, or violence.

Students also have the right to file a Title IX lawsuit in federal court the way Ms. Kowalski did. This lawsuit can ask the court to order schools to change their policies, and award damages for the harm caused by when the school ignored its responsibilities under Title IX.

Students have the right to learn in environments free of sexual harassment, assault, and violence. When schools discourage students from reporting Title IX violations, they need experienced discrimination attorneys to step in and help them navigate the process of filing complaints with the OCR and in federal court. Especially in cases with “guys with big names”, students need to know that their attorneys are going to work as hard as the universities to keep them from covering up the bad behavior of their student athletes.

At Eisenberg & Baum, LLP, our sexual harassment attorneys help students facing sexual harassment on campus. If you are facing a hostile educational environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.