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.

Washington Splits Over Sexual Orientation and Gender Identity Discrimination

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Is sexual orientation and gender identity discrimination illegal? Should it be? The recent passage of the Equality Act by the United States House of Representatives comes even as the nation’s highest court is considering what protections are available to LGBTQ employees under the federal Civil Rights Act. But the Republican-led Senate and the Trump Administration have shown this won’t be an easy fight.

In this blog post I will discuss legislation to amend the 1964 federal Civil Rights Act to include prohibitions on sexual orientation and gender identity discrimination. I will address the Equality Act’s passage in the House and opposition from the White House and Senate majority members. I will also discuss what options LGBT employees have now to protect themselves against discrimination and harassment, even if the bill does not pass.

The Civil Rights Act May, or May Not Protect Against Sexual Orientation and Gender Identity

The question of whether Title VI of the federal Civil Rights Act covers sexual orientation and gender identity is up for debate before the United States Supreme Court right now. In some areas of the country, courts have held that sexual orientation and gender identity discrimination are necessarily forms of gender discrimination, relying on stereotypes about how men and women dress and act, and who they love. But in other parts of the country, courts have held that Congress did not intend to protect LGBTQ workers in 1964 when the law was first passed.

The U.S. Supreme Court has granted certiorari to three cases in its next term to consider the issue. It appears that by June 2020, the Justices will provide an answer to whether the Civil Rights Act as it stands already protects against sexual orientation and gender discrimination nationwide.

The Equality Act Would Protect Gay and Trans Employees, Renters, Students, and More

But Democratic legislators aren’t willing to wait. After the Democrats took control of the U.S. House of Representatives in the 2018 election, Representative David N. Cicilline (D-RI), himself a gay man, introduced H.R. 5, known as the Equality Act. The bill, if passed would explicitly prohibit discrimination based on sex, sexual orientation, and gender identity in:

  • Employment
  • Housing
  • Education
  • Credit
  • Federal funding
  • Jury systems
  • Public accommodations and facilities

It would allow the Justice Department to intervene when issues of sexual orientation and gender identity discrimination came to court under equal protection claims. It also would explicitly prohibit covered facilities from denying access to restrooms, locker rooms, and dressing rooms that align with the individual’s gender identity.

Democrats in the U.S. House stood firmly behind the bill, passing it with a vote of 236-to-173 (including eight Republicans).  House Speaker Nancy Pelosi (D-Calif.) said:

“No one should be forced to lose his or her job, their home or to live in fear because of who they are and whom they love.”

Representative Cicilline added:

“Despite significant advances, L.G.B.T. people across the country remain vulnerable to discrimination on a daily basis and too often have little recourse,” said “It is past time for the Equality Act to be written into law.”

Notably, several large corporations, each employing thousands of individuals nationwide, also supported the bill, including Google, Apple, and General Motors. IBM tweeted:

“While this is a historic milestone to be celebrated, we know there’s still much work ahead. IBM will continue to push for final passage of the Equality Act to prevent discrimination against Americans for being who they are.”

Opposition Stands in the Way of Easy Passage of Broader LGBT Protections

But before the Equality Act can become law it has two large hurdles to face: the Republican-controlled Senate, and the President’s desk. Republicans in the House and the Senate have opposed the bill, claiming that it would interfere with the religious freedom of those who hold “time-honored views” of marriage. They also say it could cause problems in sports where they claim men could pose as women and deny female athletes opportunities to compete at the highest levels.

The Trump Administration has also made its stance on sexual orientation and gender identity discrimination abundantly clear. The administration has rolled back several policies and rules intended to protect gay and transgender individuals, including their service in the military, access to equal protection in schools, and even their ability to define their own gender. Last year, the Department of Health and Human Services tried to establish a legal definition of sex as a biological, unchangeable condition defined by the individual’s genitalia at birth. While these efforts have faced stiff opposition in the courts, they also indicate that President Donald Trump is unlikely to sign the Equality Act even if it gets to his desk.

When the U.S. House passed the Equality Act it made a statement that it believes sexual orientation and gender identity discrimination are wrong and should be illegal regardless of any forthcoming Supreme Court decision. But as important as that statement was, it seems unlikely that the bill will become the law of the land, at least until after the next election.

At Eisenberg & Baum, we understand the importance of federal civil rights protection for gay and trans* Americans. Our employment discrimination attorneys, help LGBTQ workers and students protect their rights under Title IX, Title VII, and other civil rights laws. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work, school, and in housing. If you have been the victim of sexual orientation or gender identity discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.

New York Law Gives Epstein’s Sexual Assault Victims Their Day in Court

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How long should children have to report sexual assault once they reach adulthood? Three years? How about 10? The New York State Child Victims Act, passed this year, extends the time for state prosecutions and civil lawsuits in these kinds of cases, giving Epstein’s sexual assault victims and others a chance to come forward on their own time.

In this blog post, I will discuss the indictment against Jeffrey Epstein for child sex assault and related civil litigation for sexual assault of minors. I will discuss how the Child Victims Act extends the deadline for Epstein’s sexual assault victims to file their claims, and explain how survivors of long-ago sex abuse and sex trafficking have one year to file their claims without worrying about how long it took to come forward.

New York Prosecutors Indict Billionaire Jeffrey Epstein for Child Sex Abuse

Billionaire Jeffrey Epstein is a very influential person. He has rubbed elbows with at least two presidents (Clinton and Trump) and owns homes in several states, Paris, and the U.S. Virgin Islands. He also has a reputation for engaging in prostitution with young girls. In 2008, Epstein pleaded guilty to two state prostitution charges in Florida. This conviction caused him to serve 13 months in prison, pay restitution to his victims, and register as a sex offender. It was the result of a settlement called the “deal of a lifetime” following a federal investigation by the FBI, headed up by then-U.S. Attorney Alexander Acosta, who is now President Donald Trump’s labor secretary. The settlement agreement was between Epstein and the U.S. Attorney’s Office and Florida state prosecutors.

However, that deal has never felt like justice to the Epstein’s sexual assault victims. Even though the investigation involved 36 child victims of sexual assault, those victims and their families were not consulted before the deal was struck. In February, 2019, Federal District Court Judge Kenneth Mara said that by removing Epstein’s sexual assault victims from the bargaining table, the Department of Justice had violated federal law.

Perhaps in response to that decision, the federal prosecutors in New York recently unsealed a criminal indictment showing that Epstein had operated a sex trafficking ring in the state, abusing dozens of girls as young as 14, and paying them hundreds of dollars cash. The indictment indicates the girls were directed to give Epstein massages, often nude or partially nude, while he engaged in sex acts including touching their genitals or masturbating.

Epstein’s attorneys are arguing that the U.S. Attorney’s Office cannot file new charges because of the 2008 settlement. However, New York prosecutors say that they weren’t part of that agreement and can proceed on their own with criminal felony charges.

New York Child Victims Act Gives Prosecutors New Freedom in Old Sex Abuse Cases

This new indictment comes on the heels of the New York legislature approving the Child Victims Act. This statute, passed into law on January 24, 2019, extends the periods for criminal prosecution of sexual offenses against a minor, and related civil lawsuits. Under the new statute of limitations, the clock does not even begin to run until either:

  • The abusive behavior is reported to the police or the statewide central register of child abuse
  • The victim turns 23 years old.

This means state prosecutors are now allowed to bring cases for child sexual assault victims as old as 28 years old. The extended deadline, along with the federal court’s ruling in February gives New York prosecutors and their federal counterparts the flexibility to bring the new indictment and fight for justice for Epstein’s sexual assault victims.

Extended Civil Lawsuit Window Gives Epstein’s Sexual Assault Victims Their Day in Court

The law goes even further for civil lawsuits filed by the child victims of sexual assault and their families. Lawsuits to recover for physical, psychological, or other injuries from child sex abuse cases can be filed until the victim turns 55 years old. This applies to intent-based and negligence claims of:

  • Sexual assault against a person under 18 years of age
  • Incest against a person under 18 years of age
  • Child pornography or sexual performances using a person under 18 years of age

This gives child victims decades to come forward, honoring the need to process such traumatic incidents before bringing the matter to court.

Long-Ago Child Sex Assault Victims Have 1-Year Window to Revive Claims

The Child Victims Act also creates a one-year retroactive window, between July 24, 2019 and July 24, 2020, for the victims of long-ago child sex assault to revive their claims. Anyone whose lawsuits were previously dismissed because they waited too long (violating the statute of limitations) or failed to file the right notices of claim may refile their lawsuits within that 1-year window and get their day in court. Retroactive laws of this kind are rare, so the victims affected are encouraged to talk to a sexual assault attorney right away to preserve their claims.

But they must act quickly. After July 24, 2020, Epstein’s sexual assault victims and survivors of child sex abuse will once again face claims that they have waited too long to file suit. That’s why it is essential to speak to an experienced attorney today to develop your case and get it filed within the one-year window.

At Eisenberg & Baum, LLP, our experienced sexual abuse attorneys know how to put the New York Child Victims Act to 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 under federal, state, and local laws. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

What the Equal Employment Opportunity Commission Did for Employees in 2018

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The #MeToo movement and national attention to sexual harassment issues made 2018 a big year for the Equal Employment Opportunity Commission. So why are their charge numbers down? Find out why changes at the EEOC may lead more employees to use private lawsuits to get the recovery they deserve.

This blog post will review the 2018 enforcement and litigation statistics recently released by the Equal Employment Opportunity Commission (EEOC). I will compare FY2018 to prior years and discuss options for employees who find their interests are not fully represented in the EEOC complaint process.

Retaliation, Sexual Harassment Top the List of EEOC Charges

On April 10, 2019, the Equal Employment Opportunity Commission released its 2018 enforcement and litigation statistics for workplace discrimination of all kinds. The EEOC tracks all its complaints and charges by year, state, and type of misconduct. Here are the highlights of last year’s data.

In FY2018, which ended on September 30, 2018, the EEOC received 519,000 calls, 34,600 emails, and 200,000 in-person inquiries from members of the public. These resulted in 76,418 total charges. More than half (51% ) of those charges included claims of retaliation.

The #MeToo movement made its mark as well. In 2018, the EEOC received 7,609 sexual harassment charges, which was a 13.6% increase over FY2017. The agency also received 24,655 sex discrimination charges (32.3% of all charges) and an additional 1,066 Equal Pay Act charges. Other claims included:

  • Disability and ADA violations (24,605 or 32.2%)
  • Race (24,600 or 32.2%)
  • Age (16,911 or 22.1%)
  • National Origin (7,106 or 9.3%)
  • Color (3,166 or 4.1%)
  • Religion (2,859 or 3.7%)
  • Genetic information (220 or 0.3%)

(Percentages add up to more than 100% because some charges included more than one type of violation.) All together, the EEOC secured $505 million in damages for employees of private employers, state and local government offices, and federal workplaces.

Smaller Case Load Signals Changes at the Equal Employment Opportunity Commission

As large as those numbers seem, they actually represent a significant reduction in case load at the Equal Employment Opportunity Commission. While EEOC employees opened over 76,000 charges, they closed 90,558 charges of discrimination, either through informal facilitation, settlement or case resolution. In total, the agency reduced its workload by 19.5% over the course of the year.

EEOC Acting Chair Victoria A. Lipnic sees this as a point of pride. The Equal Employment Opportunity Commission’s press release on the data included her statement:

“The EEOC had a remarkable year working on behalf of those who came to the agency having experienced discrimination in their workplaces. . . . The statistics reflect the agency’s successes in taking advantage of new strategies to bring about the lowest inventory of private sector charges in a dozen years.”

She touted the agency as operating in a more efficient manner, and being more sharply focused on “meritorious charges and those that advance the public interest”. That also means the Equal Employment Opportunity Commission is doing less for the employees who contact them with harassment and discrimination claims. They are filing fewer lawsuits and turning more employees away by issuing Notices of Right to Sue.

“Efficiency” at EEOC Means More Employees Will File Private Employment Discrimination Lawsuits

With the EEOC tightening its belt, many private employees will end up looking elsewhere for help enforcing their rights under Title VII, the Equal Pay Act, and other anti-discrimination statutes. For workers whose circumstances don’t fall within the Equal Employment Opportunity Commission’s top priorities, the reduction in workload will mean they will need to file private employment discrimination lawsuits to get the damages and injunctive relief they need and deserve.

At Eisenberg & Baum, LLP, we know how to make the most of the EEOC process. We can help you prepare your charge, and gather your evidence, so you can make the most of your sexual harassment or gender discrimination claim. Whether you are preparing for a formal hearing or have been sent a Notice of Right to Sue, 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.

U.S. Supreme Court to Hear Sexual Orientation Discrimination Cases

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For years, the answer to whether American workers were protected against sexual orientation discrimination or gender identity discrimination has been “it depends”. Gay and Trans* workers’ access to civil rights protections have depended on their state’s laws, and on how their local courts had interpreted the federal anti-discrimination statute. Now, the U.S. Supreme Court has announced it will hear three sexual orientation discrimination and gender identity cases. The Justices’ decision could set the stage for Title VII protections for years, or even decades to come.

In this blog post, I will discuss the U.S. Supreme Court grant of certiorari in three cases related to sexual orientation discrimination and gender identity discrimination in the coming session. I will review the facts of each case and the lower courts’ opinions, and discuss concerns some commentators have over the effect Justice Kavanaugh may have on the Court’s decision.

Supreme Court to Answer the Question: Can You Be Fired for Being Gay or Trans*

On April 22, 2019, the Supreme Court announced it was granting certiorari to (agreeing to review) three employment discrimination cases on appeal from circuit courts across the country:

These are three cases among many in recent years to take up the question of whether you can be fired for being gay or trans*. Zarda and Bostock address sexual orientation discrimination, while RG & GR Harris Funeral Homes deals with gender identity discrimination. The way the court chooses to rule on these cases could provide a clear answer to whether Title VII protects gay and transgender workers from discrimination at work.

Title VII and Sex Discrimination

The three cases are all based on the same part of Title VII of the federal Civil Rights Act, which says:

“It shall be an unlawful employment practice for an employer … to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….”

Gender discrimination happens when an employer makes employment decisions, including hiring, firing, promotions, or pay determinations at least in part because of the sex or gender of the employee being considered. The question each court had to face is whether discrimination “on the basis of … sex” includes a person’s sexual orientation or gender identity. Here’s what each lower court decided.

Zarda v Altitude Express Inc

Donald Zarda was a skydiving instructor for Altitude Express Inc. Zarda was preparing for a tandem jump, where he and a female client were strapped hip-to-hip and shoulder-to-shoulder. Given the intimate nature of the position, Zarda told her that he was gay “and ha[d] an ex-husband to prove it.” Zarda was later fired at least in part because of his reference to his sexual orientation.

The Second Circuit Court said that was illegal. In discussing Title VII, the court said:

“This ‘broad rule of workplace equality,’ … ‘strike[s] at the entire spectrum of disparate treatment’ based on protected characteristics, … ‘regardless of whether the discrimination is directed against majorities or minorities.’ … As a result, we have stated that ‘Title VII should be interpreted broadly to achieve equal employment opportunity.” (Internal citations omitted)

The court found three reasons a gay or lesbian employee could use to raise sexual orientation discrimination under Title VII:

  • Because sexual orientation discrimination is motivated at least in part because of an employee’s sex
  • Because sexual orientation discrimination is based on sex stereotyping and assumptions about how each sex can or should be
  • Because sexual orientation discrimination is based on “associational discrimination” and motivated by an employer’s objection to romantic relationships between people of particular sexes.

The court held that any of these reasons could be enough to sustain a Title VII sexual orientation discrimination lawsuit.

Bostock v Clayton County

Gerald Bostock was a child welfare services coordinator in Clayton County, Georgia, and a gay man. He filed a federal lawsuit under Title VII saying the county discriminated against him based on his sexual orientation and gender stereotyping.

The Eleventh Circuit reviewed his case and in a short, 3-page decision ruled that he could not sue for sexual orientation discrimination, because Title VII didn’t include sexual orientation in the list of protected traits. The court relied heavily on the fact that earlier courts had found in the same way, ignoring prior U.S. Supreme Court cases to the contrary. The court said:

“And under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en ban decision is issued.”

EEOC v RG & GR Harris Funeral Homes Inc 

Aimee Stephens was born biologically male. She presented as male when she was hired to work at R.G. & G.R. Harris Funeral Homes, Inc. in Michigan. After several years, she sent the owner Thomas Rost, her boss and a practicing Christian, a letter saying that she intended to begin presenting as female and going by her female name, and that she would comply with the funeral home’s gender-specific dress code by wearing skirt suits at work. She was fired, in Mr. Rost’s words, because “he [Aimee] was no longer going to represent himself as a man. He wanted to dress as a woman.”

The court found that this was explicit gender identity discrimination and violated Title VII. It said firing Ms. Stephens based on her letter was motivated by sex stereotypes and gender norms. The court said that Title VII is violated when a person is discriminated against because of her sex, or her desire to change her sex. The court said:

“It is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part by the employee’s sex.”

Aimee Stephens’ case also raises the issue of whether a religiously observant owner of a for-profit company can use his or her religious belief as a shield against Title VII enforcement. The federal Religious Freedom Restoration Act (RFRA) says that the government may not enforce a religiously neutral law against a person if doing so substantially burdens the individual’s religious exercise unless it is done in the “least restrictive way to further a compelling government interest.” The court found that the funeral home, which was for-profit and performed funerals for families of any faith or no faith, would not be substantially burdened by continuing to employee Stephens after her transition as a transgender woman.

Could a Conservative Supreme Court Cut Down LGBT Employment Protections?

These cases are the first LGBT employment law cases to come before the U.S. Supreme Court since Justice Anthony M. Kennedy stepped down. Kennedy was seen as a champion for LGBT rights on the Court. He personally wrote several key opinions. Now that he has been replaced by Justice Brett Kavanaugh, some commentators are wondering if the more conservative Court will roll back protections for gay and transgender workers. While Justice Kavanaugh has a history of conservative social views, he has stood behind some employees’ workplace discrimination cases in the past.

But trying to predict a U.S. Supreme Court decision is as risky as predicting the weather. Kavanaugh’s position on the particular issues of sexual orientation discrimination and gender identity discrimination remain to be seen, as does whether those opinions will sway any of the other justices on the bench.

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.

New York State Revenge Porn Law Makes Sharing Nude Pictures Illegal Statewide

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Imagine that you and your ex-partner work at the same business. When the two of you break up, he or she threatens to send explicit photos of you to your boss, coworkers, even the owner of the company. Then he or she starts making demands. Sadly, this is the reality for far too many New York workers. But now a newly passed New York State revenge porn law is giving the victims this form of sexual harassment a way to fight back.

In this blog post, I will discuss the recently passed New York State revenge porn law. I will compare it to the New York City law already in place. I will also discuss how this law can help employees facing this invasive form of sexual harassment at work.

New York State Revenge Porn Law was 5 Years in the Making

On Thursday, February 28, 2019, the New York State legislature passed a law making so-called “revenge porn” a crime across the state. The law made it illegal to try to humiliate or cause emotional, physical, or financial harm to another person by intentionally distributing or publishing intimate pictures or video. Prosecutors can charge the one distributing the images with a Class A misdemeanor, punishable by up to a year in prison and a $1,000 fine.

The law goes beyond the criminal courts, though. It also includes a private cause of action. That means the victims of revenge porn can sue their harassers and ask the judge to award damages for harm done and order the person to take the pictures down. In a press release on the matter, Assemblymember Edward C. Braunstein said:

“Revenge porn is a pervasive problem that often results in victims being threatened with sexual assault, stalked, harassed, or fired from jobs. . . . Some victims have even committed suicide due to the severe emotional pain. The passage of this legislation sends a strong message that individuals who engage in this type of reprehensible behavior will be held accountable for their actions.”

Many of the victims of revenge porn have been waiting for years for the state to pass this bill. It was first proposed over 5 years ago. At the time, it was one of the first of its kind, imposing criminal penalties for unlawful disclosure of intimate images. But politics got in the way. In the last five years, 41 states have adopted laws outlawing the non-consensual sharing of sexually explicit images, as had New York City and several state counties. But the state legislature remained unable to pass the bill. Then, after the 2018 election, the power balance in the state legislature shifted, allowing the state revenge porn law to finally be passed.

Statute Expands New York City Protections Statewide

The language of the New York State revenge porn law is close to the wording in an ordinance passed in 2017 by the New York City Council. That law made it illegal for residents or those within the city limits to disclose pornographic images or sexual activity, or any image that shows another person’s “intimate body parts.” The law also applies to threats made as long as the pictures or circumstances involved were enough that the victim could be identified.

Now those same protections are available to revenge porn victims statewide. The law is also the first of its kind to authorize judges to order social media platforms and websites where a non-consensual intimate image is found to remove the picture or video. That language was part of the reason the state-wide bill was delayed. The Internet Association, which represents tech giants like Google, Twitter, and Facebook, had resisted the passage of the law out of fear the social media platforms could be held financially responsible. The law in its final form doesn’t allow a plaintiff to go after a hosting platform for damages, but if a website refuses to remove the image it could still face sanctions for contempt of a court order.

Revenge Porn at Work is Sexual Harassment

When revenge porn happens at work it can be disastrous. Sexually explicit images can ruin a person’s career and professional reputation. Victims might even lose their job. There are few other forms of sexual harassment that can more quickly create a hostile work environment. That means the victims of revenge porn at work have other avenues for protection: Title VII of the Civil Rights Act, and the New York Human Rights Act.

These laws say that employers must take reasonable steps to respond to sexual harassment at work, including quid pro quo arrangements or threats by supervisors and the creation of hostile work environments by coworkers. In the case of revenge porn that could include taking the image off company servers, protecting the victim from fall-out or retaliation due to the imagery, and disciplining the person who distributed them. When employers fail to do their job, the victims of revenge porn can often sue the company as well as the person doing the distribution.

At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys know how to put the New York State revenge porn law to work for you to fight back against this form of severe sexual harassment. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation under federal, state, and local laws. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.

Does Cyber-Stalking by Coworkers Count as Sexual Harassment?

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When sexual harassment goes online, it can be hard to tell where the line is between at work and not. Cyber-stalking by coworkers can make the idea of going to work and facing your harassers seem impossibly difficult. Find out whether cyber-stalking by coworkers counts as sexual harassment and what you can do about it.

In this blog post, I will discuss how new ways to use technology have created new forms of workplace discrimination and sexual harassment. I will review Title VII’s protections against gender discrimination and sexual harassment and discuss when cyber-stalking by coworkers may or may not covered by the statute.

Employment Communications Go Online, Create Potential for Cyber-Stalking

In the modern era of technology, it seems like there is a new way to connect every day. Employers, supervisors, and coworkers use social media, forums, and company message apps to stay connected and get work done. But when coworkers become sexually aggressive, all those ways to stay connected become channels for sexual harassment.

Most states have laws against harassing a person through electronic means. In New York, there are criminal laws against stalking that protect people against threats and intimidation that put them in fear for their safety. In New York, criminal stalking could include:

  • Tailing or watching the person
  • Trespassing at the person’s home or workplace
  • Stealing the person’s mail
  • Damaging the person’s property
  • Unwanted contact or communications, including through family, neighbors, or coworkers
  • Using tracking devices, video cameras, or GPS
  • Monitoring a person’s computer use and Internet history

When the methods harassers use are electronic, stalking becomes cyberstalking. Some of the most common forms of cyberstalking include:

  • Texting explicit imagery (sexting)
  • Sending unwanted emails or direct messages
  • Posting of intimate details on public (or company-wide) forums
  • Unrelenting commenting or communicating through social media.

Criminal stalking behavior doesn’t have to be sexual in nature, but many stalking victims feel targeted because of their gender or sexuality or because the person harassing them is seeking an unwanted romantic relationship. When that behavior occurs between coworkers it can raise the question of whether that behavior is also illegal sexual harassment.

Does Cyber-Stalking by Coworkers Count as Sexual Harassment?

Most employees know that federal law protects them from sexual harassment at work. Title VII requires your employer to take reasonable steps to respond to claims of sexual harassment or gender discrimination against supervisors, managers, coworkers, and even customers in some cases. When the misconduct happens face-to-face in the office, that’s one thing. But what about online? Does your employer need to respond to cyber-stalking by coworkers?

Whether Title VII will apply to cyber-stalking depends in part on who is doing the wrongful behavior. If your manager, supervisor, or boss is the one targeting you online, that could be considered sexual harassment even if it is sent outside of work hours, or through private channels like your social media accounts. However, if you are targeted for cyber-stalking by coworkers, the issue of Title VII gets a little more difficult. The question then becomes whether there is enough connection between the conduct and the workplace.

Remember that Title VII protects employees against sexual harassment or gender discrimination that is so severe or frequent that it creates a hostile work environment. It can sometimes be hard to say who is sending harassing messages online. Many social media platforms and forums are anonymous. Just suspecting that a fellow employee is involved is not enough.

In general, the closer the connection between work and the cyber-stalking, the more likely it will count as sexual harassment. If a harassing message appeared on a company server or message board, can be traced back to a coworker, or came from work computer, there are cases that say your employer may have a duty to respond to that behavior.

What to Do if a Coworker Sexually Harasses You Online

If you believe you are the victim of cyber-stalking by coworkers, you will most likely need to take a two-step approach to stopping the behavior. Most employers don’t have the technology to trace back anonymous messages and determine who sent them. If you aren’t sure, or if the behavior is severe enough to cross the line into criminal cyber-stalking, you may need to go to the police first. In other cases, though, a timely complaint to HR or your supervisor may be enough to stop cyber-stalking before it gets serious enough to count as criminal behavior.

One of the most important things to do if a coworker sexually harasses you online is to preserve the evidence. On many platforms, a user can edit or delete their posts after they are published. If your coworkers suspect that you have reported them, they may try to hide the evidence by deleting their posts. That’s why, whether you just end up showing it to your boss, or have to admit it into evidence at trial, it’s important to have printouts or screen captures of the offensive online behavior.

At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how hard it can be to deal with online sexual harassment and cyber-stalking. We will help you identify your options, negotiate with your employer, and ensure that your rights are protected at work and in court. Contact us to schedule a consultation.

Women Venture Capitalists Fight Gender Discrimination in Lending

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Where can a woman go for funding to start her business? Women entrepreneurs continue to face challenges raising seed money from venture capitalists who are overwhelmingly male, and white. Now a group of women venture capitalists in New York are fighting gender discrimination in lending by starting their own investment companies and incubators. They are even holding women-only pitch nights.

In this blog post, I will look at the problem of gender discrimination in lending. I will review an article about how a group of female venture capitalists are fighting back, and will discuss how anti-discrimination laws can help narrow the gender gap for entrepreneurs and women-owned startup businesses.

Women-Only Pitch Night Connects Female Business Owners with Investors

One cold night in January, 275 women gathered together in a SoHo coworking club to listen and lend. They snacked on crudites, cheese, and wine, as they laughed and cheered one another on. The Wingable women-only pitch night connected female-founded companies with investors ready to lend. The event answered the question the New York Times posed:  “What would VC-funded industries look like if more women controlled the money?”

The Wingable pitch night was hosted by The Wing, a women-only co-working club with spaces across New York City and the country, and Able Partners, a women-owned New York venture capital firm. It featured 10 companies, each with at least one self-identifying female among their founders. The companies had completed Able Partners’ incubator program and were ready to gather seed funding for their new ideas.

The lenders in the room were women, too. In addition to Lisa Blau and Amanda Eilian, the founders of Able, many other women investors had come out to support these new startups.

“‘We need the old girl’s network,’ said Linnea Conrad Roberts, the chief executive of Gingerbread Capital and a former partner at Goldman Sachs, as she waved to Ms. Blau. ‘If you think about the ecosystem that guys have, a Silicon Valley founder will make hundreds of millions of dollars and he doesn’t go home and retire; he starts putting it toward funding other companies.’”

Gender Discrimination in Lending Leads to Unequal Investment Opportunities

The push for women-owned venture capital companies comes in no small part from the gender discrimination and overt sexual harassment female entrepreneurs feel when starting to launch their companies. According to the venture-tracking site Crunchbase, only 8% of investing partners at the 100 top venture capital firms are women. Across the industry, 89% of venture capitalists are men, and 87% are white.

That gender disparity shows up in their lending too. Last year, female founders received only 2.2% of all venture capital investments. In a $130 billion industry, women only got $2.9 billion. It’s not that women aren’t starting businesses, either. The Department of Labor estimates that over one third of all businesses are owned by women.

Women entrepreneurs actively seek out seed money and capital investments, but often their pitches are met with stereotypes, gender discrimination, and out-right sexual harassment.  Attendees of the Wingable shared some of their own stories:

“‘Last year, when I was raising my seed, this guy was like, “It must be really difficult for you to raise money, Shannon, because men dissociate intelligence from attractiveness,”’” Ms. McLay said. Everyone in earshot groaned.

“‘I’ve heard, “I really love you, Chanel, I think you have an amazing company, but I think I might want to date you,”’” said Chanel Melton, 31, the founder of a hair-extension company called RoseGold Pro. More groans. ‘He followed up later, like, “Hey, I hope I didn’t make you feel uncomfortable.”’”

Other women founders have reported sexual harassment when they sought funding within the technology start-up industry. Women report that while making their pitch they have been hit on, touched without permission, and asked for sexual favors.

New York State Human Rights Act Helps Women Facing Discrimination and Harassment from Venture Capitalists

The trouble is that the investor-investee relationship doesn’t always fit with the legal protections against gender discrimination and sexual harassment. Title VII of the federal Civil Rights Act only applies to employees and employers. The federal Equal Credit Opportunity Act, 15 USC section 1691, protects against gender discrimination in consumer lending, but may not apply in cases between businesses.

But for the women of Wingable, and others in New York, state and local laws may provide a better answer. In 2018, the New York State Human Rights Act was expanded to cover more than just traditional employer/employee relationships. Under New York state law, an employer is now responsible for gender discrimination and sexual harassment by or against:

  • Permanent and temporary employees
  • Contract workers
  • Independent contractors
  • Agents of the employer working on the business

This broader definition of employee means that complex corporate structures won’t protect venture capital companies that allow their lenders to discriminate. Depending on the relationship formed between a lender and a startup founder it could also give additional protections to women business owners once the first round of funding is complete.

Between women venture capitalists, women-owned businesses, and stronger sexual harassment laws, New York is a great place to start a business. But when old assumptions make gender discrimination in lending a part of doing business, the employment discrimination lawyers at Eisenberg & Baum can help. Our New York-based team can work with you to explore your options and build your case against employers and venture capitalists who treat you or your business differently because you are a woman. If you are a woman entrepreneur facing gender discrimination in lending, contact us today to schedule a free consultation.