Harvey Weinstein Settles Dozens of Sexual Misconduct Lawsuits for $25 Million

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Former media mogul Harvey Weinstein has been in the news for more than two years, and for all the wrong reasons. Facing dozens of sexual harassment and sexual misconduct lawsuits and criminal charges in two different states, Weinstein is experiencing the consequences of decades of sexual assault and coercion targeting some of Hollywood’s famous actresses and many other company employees. Now, there are signs that the civil cases may be coming to an end. A tentative civil settlement will resolve dozens of sexual misconduct lawsuits and clear the way for future claimants to get relief even if Weinstein goes to jail or files for bankruptcy.

Weinstein’s Sexual Harassment Catches Up With Him

More than 2 years ago, on October 5, 2017, the New York Times revealed a report showing that Harvey Weinstein had a secret. He had been paying off actresses and employees who raised sexual harassment claims against him for decades. That initial report included the stories of big-name actresses Ashley Judd, Gwyneth Paltrow, and Angelina Jolie, as well as company staffers and employees. Over the next several months, more than two dozen more women added their voices to the #MeToo movement, raising allegations against Weinstein and his company.

The women explained that Weinstein would invite them to business meetings at his hotel, but when they arrived he would be nude or in a robe. He would then pressure them to give him massages or watch them shower. Sometimes he would touch the women sexually as well. Because of Weinstein’s powerful position in the film industry, many of these young actresses felt they could not say no. Refusing Weinstein’s advances was a career-killer.

As a result of these news stories, Weinstein lost his position as the head of his company, was expelled from the Oscars organization, the Academy of Motion Picture Arts and Sciences, and other professional organizations, and came under criminal scrutiny in England, California, and New York.

Lawsuits Pile Up Against Weinstein and His Company

In the midst of media fervor, several of the women who raised sexual harassment claims took to the courts. Acting swiftly to qualify under restrictive statutes of limitations periods, women filed civil lawsuits in Canada, the UK, New York, and elsewhere. The lawsuits named Weinstein and his company as defendants and raised Title VII sexual harassment claims along with allegations of rape, sexual assault, and retaliation. New York state prosecutors also filed a lawsuit against the Weinstein Company for violations of state and federal anti-harassment laws.

Then in May 2018, the case turned criminal. New York prosecutors indicted Weinstein for rape and sexual abuse against two women. A third victim was added later. In January 2020, California prosecutors added more charges to the list with a separate criminal prosecution.

Settlement of Sexual Misconduct Lawsuits Depends on New York Bankruptcy Court

While all this was happening, in March 2018, the Weinstein Company filed for bankruptcy. This complicated the sexual misconduct lawsuits filed against Weinstein for his actions as an employer because any settlement of their claims against the employer would have to be approved as part of the company’s total resolution of debts and liabilities.

The first word of such a resolution came over a year later, in May 2019. At the time, it appeared Weinstein’s accusers could have received approximately $44 million. However, it now appears that amount was the total bankruptcy resolution. A more recent report, published December 11, 2019, says that the sexual misconduct lawsuits may be resolved for approximately $25 million out of a total $47 million resolution submitted to the federal bankruptcy court.

The tentative agreement says that 18 plaintiffs who had already come forward would split $6.2 million. No one plaintiff would receive more than $500,000 for her claims. Another $18.5 million would be set aside for the class action part of the lawsuit. This would allow future claimants to come forward and be paid by a court-appointed monitor.

But even this smaller settlement has a long way to go before it becomes final. First, it must be approved by the bankruptcy court. Then, a federal judge overseeing the class action lawsuit must review the terms. Two women with pending lawsuits, Alexandra Canosa and Wedil David, have already said they intend to challenge the agreement. This could further delay the resolution as the courts hear their objections and weigh the fairness of the solution.

$500,000 may not sound like a lot for attempted rape charges and claims that retaliation intefered with an actress’s Hollywood career. Many of the lawsuits made claims for far more. However, the company’s bankruptcy and the potential for Harvey Weinstein to file for bankruptcy himself may be motivating the plaintiffs to settle for less. Plaintiff and actress Katherine Kendall told the New York Times, “I don’t love it, but I don’t know how to go after him. . . . I don’t know what I can really do.” Another of the plaintiffs’ attorneys said that if the women hold out for more, they could find themselves left with empty judgments that cannot be collected upon.

Still, the settlement of Weinstein’s sexual misconduct lawsuits isn’t the end of his comeuppance. The criminal charges against him are still pending. Even if the charges against him in New York fail and a jury finds him not guilty, California prosecutors have indicated they intend to press forward on their own case. Yet these charges only address a small number of the women who have come forward with complaints of sexual harassment and abuse. For many others, the tentative settlement, no matter how small, may end up being the end of their journey.

At Eisenberg and Baum, LLP, we have sexual harassment and sexual abuse attorneys on staff to help women and men facing misconduct at work. We represent the victims of rape, sexual assault, and workplace harassment against their employers and abusers, and help them get the compensation they need to put the harm behind them. If you have been the victim of sexual assault, contact us today to schedule a free consultation.

What to Do About Sexual Assault Between Vendors

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From the outside, the wine industry may seem to be dominated by rich, older men with class and good taste. On the inside, though, many women experience sexual aggression powered by free-flowing alcohol in a heavily male-dominated industry. But getting relief from sexual assault and harassment within this sales-based industry can be hard. It raises the question of what to do about sexual assault between vendors.

Employees and Vendors Call Out Famous Sommelier for Sexual Assault

The New York Times has published a report naming Anthony Cailan as a part of the #MeToo problem. Cailan is a 29-year-old wine celebrity who worked in influential Los Angeles restaurants like Bestia, Animal and Eggslut before moving to New York to help launch the Usual. He has been featured on the cover of Wine & Spirits Magazine as one of the “BEST NEW SOMMS” and has regularly received glowing media attention nationwide.

But behind the scenes, Cailan’s reputation is not nearly so bright. He has been a frequent subject of reports of sexual assault and harassment. In January, five former co-workers, including his former boss, Jill Bernheimer of Domaine LA, sent him an email telling him to stay away from their restaurants and workplaces. Now four more employees and vendors have taken their complaints public, talking to the New York Times about their experiences.

Raquel Makler says she planned to follow Cailan from a Los Angeles wine bar to New York when he offered her a job at the Usual. When she was in town in June 2018 looking for an apartment, Makler alleges that Cailan texted her telling her he was too intoxicated to sleep and asking her to keep him company at his apartment. When she got there, she alleges he tried to give her wine and cocaine, kissed her and asked for sex. She reports saying no, reminding him he was her boss, but according to the New York Times, his answer was “We can just forget about that”. The report claims that the situation escalated to full sexual assault as Cailan is reported to have pushed his penis into her mouth and attempted to have sex with her before assaulting her with his hand instead. Makler said she was too shocked to physically resist, but she did begin looking for a new job right away.

One year later, Cailan is said to have sent a similar text to Sarah Fernandez, a sales representative for a wine company. She told the Times she had been trying to get Cailan to taste the wines she was selling, so she saw the late-night text as a business opportunity. She claims that she met Cailan at the bar Atoboy, before the two moved back to his apartment. But when she got there, she could tell immediately that he wasn’t interested in wine. Fernandez told the Times:

“‘I want to be clear: I am a grown woman who was consenting to make out with him, consenting to go to his apartment, consenting to sit with his arm around me,’ Ms. Fernandez said. But, she said, she strongly resisted what happened next. ‘He kept putting his hands on my thighs, he kept trying to get into my underwear. He would not take no for an answer.’”

Fernandez and Makler were both afraid of making an enemy of the famous and influential somm by coming forward about what happened. However, they each told coworkers about their stories shortly after they happened, and eventually their stories joined with others to show a pattern of sexual assault and harassment.

Vendors Face Special Challenges Raising Sexual Harassment Claims

Employees like Ms. Makler have a straightforward process to raise sexual assault and harassment claims against their supervisors or employers. Most larger companies have internal HR complaint processes. If those fail, you work for a smaller company, or your complaint is against the owner themselves, you can also file complaints with the federal Equal Employment Opportunity Commission, the New York Human Rights Division, or in state or federal court.

But what Cailan’s case shows is that sexual assault doesn’t stay within the lines of a single corporate structure. The somm was known as an expert networker in an industry that thrives on interactions between wine manufacturers, distributors, and the restaurants themselves. As a sales representative for a vendor, Ms. Fernandez alleges she was exposed to all the same sexual assault and harassment as Cailan’s employees, but Title VII of the federal Civil Rights Act only applies to employees and employers. Vendors, sales representatives, and even independent contractors often have their complaints denied because they don’t fit within the definition of an employee.

New York State Human Rights Law Protects Vendors Against Sexual Assault

More recently, the New York state legislature saw the problem with the gaps left open by the federal law. Since April 12, 2018, the New York State Human Rights Law has been expanded to cover nearly any case of sexual assault or harassment in a professional business setting. Employers are now required to respond to complaints raised by their employers, independent contractors, subcontractors, vendors, consultants, and even service technicians — basically anyone doing work on their job sites.

The New York State Human Rights Law goes much further to protect residents facing sexual assault and harassment whereever they work. But that doesn’t mean it will cover every situation. Ms. Ferndandez, for example, could still face challenges since her sales call happened at a bar and then Cailan’s apartment, rather than at his restaurant. Regardless of where the conduct happened, Ms. Fernandez may still be able to pursue criminal charges against him for sexual assault, but on the civil side, it will be up to her employment discrimination attorney to make the case that Cailan’s sexual misconduct fits within the state law’s definition of sexual harassment in the workplace.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment arrangements. We know how to make the New York State Human Rights Law work for vendors, sales representatives, and other traveling professionals. Contact us to schedule a consultation at our office in New York City, or over the phone.

Secondary Charges Show a Pattern of Sexual Assault for Actor Cuba Gooding Jr.

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An isolated case of inappropriate sexual touching may not carry a high criminal consequence. But often, these criminal charges are a glimpse into a pattern of sexual assault against a number of victims. That appears to be the case for actor Cuba Gooding Jr., whose criminal trial was delayed when more sexual assault charges came to light. Find out what victims can do to stop these patterns before they become even more serious.

Cuba Gooding Jr. Faces Secondary Sexual Assault Charges

Cuba Gooding Jr. is best known as an Oscar-winning actor with roles in everything from Jerry Maguire to Radio. But in June 2019, Mr. Gooding added a New York criminal court to his list of appearances. The actor was charged with sexual abuse and forcible touching in the third degree. This is a misdemeanor with a maximum penalty of one year in jail.

Prosecutors in the case said that on Sunday June 16, 2019, Mr. Gooding groped a woman’s breast at the Magic Hour Rooftop Bar at the Moxy NYC Times Square hotel in Manhattan. The victim in the case was a student at New York University. Gooding denied the allegations and was scheduled to appear for trial in October 2019.

Secondary Charges Show a Pattern of Sexual Assault

What started out as a one-time incident quickly appeared to be part of a pattern of sexual assault. Even back in June, the police in the case said they were investigating a second groping allegation from years earlier. The victim in that case came forward after she saw news reports about the first charges. There was some question at the time as to whether the secondary claims were too old to go to court, but it seems the prosecutors found a way to make the charges stick.

On Thursday, October 10, 2019, the state prosecutors announced that a new charge had been filed. This new charge delayed Gooding’s trial on the June 2019 incident, and moved the case from Criminal Court to State Supreme Court. This is a higher-level court reserved for higher severity crimes, suggesting that Gooding’s pattern of sexual assault may have included more severe forms of misconduct.

Famous Actor Blames the Victim in Sexual Assault Charges

Mr. Gooding’s attorneys have fought hard against the sexual assault charges. Even though the prosecutors were able to present a video of the incident, Gooding’s legal team has said it never happened. They presented two witnesses who say they were there and didn’t see it, and have even claimed that the victim “is predisposed to make false allegations against the defendant.” To paraphrase: “It didn’t happen. She’s lying.”

Sexual Assault Victims Find Strength in Numbers

These strategies of denial and victim blaming are all too common in sexual assault cases. Defendants will often try to point to the victim’s own behavior or personality to explain what they want the jury to believe happened. While these tactics can sometimes be convincing in “he-said, she-said” cases, they don’t work as well when victims work together to show a pattern of sexual assault by the same person.

That may be why Gooding’s legal team was quick to deny the secondary charges as a stalling tactic. Sexual assault victims find strength in numbers when they come together to show how the same person has taken advantage of several people in similar ways. Whether they are calling out sexual harassment in the workplace, or casting light on a long-hidden pattern of sexual abuse, these sexual assault survivors can help lift each other up and shore up weaknesses in one another’s case.

At Eisenberg & Baum, LLP, our sexual abuse attorneys know how to establish and prove patterns of sexual abuse. We work with our clients to get their stories heard and identify others who faced the same treatment. If you or someone you know has been the victim of sexual abuse, contact us today to schedule a free consultation.

EEOC Considers Changes to Equal Pay Data Collections

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Women’s rights advocates and researchers are often looking for new sources for data on pay disparities based on race, gender, and other factors. In 2016, the Equal Employment Opportunity Commission added a mandatory report to help with Equal Pay Act enforcement, but now that data collection may be going away. Find out what some of the experts had to say about that.

EEOC Collects Demographic, Pay Data to Address Wage Discrimination

Every year, the Equal Employment Opportunity Commission (EEOC) and the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) collect demographic and pay data from employers through Employer Information Reports (EEO-1 reports). This data tracks the number of employees in each of 12 pay bands based on each employee’s W-2 wages. The report also discloses the hours worked for hourly employees and whether overtime-exempt employees are full- (40 hours) or part-time (20 hours) employees.

The EEOC has been gathering the demographic diversity information from employers for 50 years. This has come to be known as EEO-1 Component 1. But did not start tracking equal pay data until 2016 (EEO-1 Component 2). The agency has now collected wage disparity data for 2 years, but a complete analysis of the information isn’t yet ready for public use. In addition, Title VII of the Civil Rights Act prevents the EEOC from releasing the raw data due to privacy and corporate confidentiality reasons, so researchers have not yet seen the results of this change.

EEOC Announces Intent to Stop Collecting Equal Pay Data

Even without seeing the results of the 2017 and 2018 dataset, last year the EEOC issued a notice that it planned to change the EEO-1 Reports to remove Component 2 and stop collecting equal pay data. As part of the agency’s mandatory notice and comment procedure leading up to any such changes, the EEOC held a hearing on November 19, 2019, where economic experts and employee advocates could weigh in on the proposed changes.

Pay Equity Advocates Push for Continued Equal Pay Data Collection

The EEOC heard from three witnesses who voiced the need for ongoing data collections advocates:

  • Jocelyn Frye, Senior Fellow for the Centers for American Progress
  • Jessica Stender, Senior Counsel for Workplace Justice and Policy with Equal Rights Advocates
  • Betsy Stevenson, Professor of Economics and Public Policy at the Gerald R. Ford School of Public Policy at the University of Michigan

These advocates emphasized the need for systemic collection of information on wage discrimination and equal pay disparities. Ms. Stendler explained how employer-level “pay secrecy” policies — which discourage or even prohibit employees from discussing their compensation with their coworkers — keep employees from getting necessary information to discover and prove their wage discrimination claims. She and Dr. Stevenson both explained that these kinds of reports also help employers to recognize unintentional pay disparities and unconscious bias.

Ms. Frye said undoing the 2016 additions to the EEO-1 report is misguided and ill-advised, saying the decision “represents a significant unwarranted step backwards in the fight for equal pay.” She emphasized that gender discrimination continues even after decades of civil rights enforcement. Undermining pay data collections perpetuates discrimination and masks disparities from further scrutiny.

Employers’ Consultants Say Equal Pay Reports are Too Burdensome

Three other witnesses testified on behalf of employers:

  • Lynn Clements, Director of Regulatory Affairs at Berkshire Associates
  • Michael Eastman, Senior Vice President of Policy and Assistant General Counsel for Center for Workplace Compliance
  • Joshua Mitchell, Senior Economist with Welch Consulting

These three uniformly emphasized the burden Component 2 puts on employers to compile equal pay data and submit it to the EEOC. Each testified that preparing the reports takes longer than the average 5 hours stated by the EEOC and required HR employees and corporate attorneys to spend hours preparing the reports and certifying their authenticity.

However, the employee advocates cast doubt on whether these increased preparation times would continue over time. Since the bulk of the reporting requirements fall on larger companies, it was reasonable to expect that these companies use software and automated HR and payroll systems to manage their employee pay. In the first years after Component 2 went into effect, those systems would need to be closely monitored and authenticated. But after a relatively short adjustment period, these systems could be set up to generate the report without any substantial time investment.

Usefulness of Equal Pay Data Called into Question on All Sides

One thing that all the witnesses seemed to agree on was that the usefulness of the equal pay data collected by the EEOC had yet to be determined. Employer representatives claimed that this was a reason to stop collecting the data. They equated a lack of finality with an assumption that the information collected was not useful. Mr. Mitchell in particular spent most of his written testimony laying out differences in the way employers keep their compensation records and the way the EEOC collected its data. Together, these witnesses testified that Component 2 does not further the goal of minimizing wage disparities between genders.

Employee advocates agreed that the usefulness of the 2017 and 2018 data had yet to be fully realized. However, while Dr. Stevenson suggested that changes may be appropriate in the future, all three employee advocates warned against stepping backward before the data already received could be fully analyzed. Ms. Stender concluded her testimony by warning against the dangers of doing nothing (or in this case stopping what had already been done):

“The gender wage gap has not changed in a statistically significant way for over a decade. At the current rate of change in the annual earnings ratio, it will take another 40 years, until 2059, for men and women to reach wage parity. It is therefore critical that the agencies charged with enforcing equal pay and anti-discrimination laws are able to take proactive steps to identify and better address pay discrimination, which is a significant contributor to the gender wage gap.”

With the hearing concluded, the EEOC will now determine whether to continue to collect wage data to guide its enforcement of the Equal Pay Act. However, even if the EEOC stops collecting that data, private foundations and the advocacy groups represented by the employees’ witnesses will continue to fight gender discrimination and represent women and minorities paid less for the same work.

At Eisenberg & Baum, LLP, our gender discrimination attorneys know how the EEO-1 reports can be used to show wage discrimination. We can help you file your Equal Pay Act charges, and develop a case against your employer if it appears you are being paid less than you should based on your gender. Contact us today to schedule a consultation with one of our attorneys.