Me Too Movement Shared as Part of Political Campaign

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The survivors of sexual assault often feel that their voices and their stories go unheard, prompting the recent Me Too Movement. This year one Virginia woman made her #MeToo experience the focal point of her political campaign, telling potential constituents that she knows what it’s like to feel voiceless, and now she’s speaking out.

Democrat, Mother, Survivor, and Marine Tells Her Story

Claire Russo is a 40 year old combat veteran. She served in Iraq and Afghanistan before returning home and eventually running for Congress in southern Virginia. She is also a rape survivor. That was the story she told to her potential constituents in a campaign video released in May 2020.

In 2004, while serving in the military, Russo attended the Marine Corps Ball where she was drugged and raped by a superior officer. The Marine Corps refused to charge her abuser, or allow her to transfer to another military base. She spent years trying to bring her abuser to justice. She took her case to civilian court with the San Diego district attorney’s office. Eventually, her attacker pleaded guilty to sodomy and was sentenced to three years in prison.

Even that conviction wasn’t enough to get the military to treat Russo’s sexual assault seriously. About halfway through his prison sentence her abuser received an honorable discharge from the Marines, even while she continued to serve her country.

Virginia Democratic Candidate Makes Sex Abuse a Focus of Her Campaign

When Ms. Russo decided to run in a southern Virginia congressional race, she could have focused on her military service record, her role as a mother, or any other part of her history. Instead, she chose to make the story of her rape the center of her campaign. She created a video that told her story, starting with a black screen and the year, 2004, and very quickly telling viewers, “I was raped.”

See the campaign video.

She sees this story as a crucial part of what she would bring to the office. Ms. Russo used a significant portion of her advertising budget to distribute the video, hoping to connect with voters who felt excluded and unheard.

“I have been someone whose voice has been silenced. I have been someone who was denied justice,” Ms. Russo [told the New York Times]. “It is important to show the voters in this district that we can win and that we can take power back.”

Ms. Russo’s video was the first time a political candidate featured her personal recollection of rape. Ms. Russo lost her 2020 election primary on June 23, 2020, pulling just over 18% of the vote. However, her campaign shows the influence the Me Too movement has on politics, and casts a light on sexual harassment among and against the nation’s elected officials.

The History of the Me Too Movement in Politics

Ms. Russo’s campaign ad is part of a long line of sex assault stories within politics. When the Me Too movement went viral in 2017, there were several politicians accused of sexual harassment:

  • Senator Al Franken (Democrat, Minnesota) resigned due to allegations from 6 women
  • Representative John Conyers (Democrat, Michigan) resigned due to allegations from a former staffer
  • Representative Blake Farenthold (Republican, Texas) settled a sexual harassment lawsuit filed by a former aide
  • Representative Ruben Kihuen (Democrat, Nevada), apologized for allegations of sexual touching during his 2016 campaign
  • Representative Trent Franks (Republican, Arizona), resigned under allegations by staffers

Sexual harassment also played a significant role in the 2016 presidential campaign. After video was released showing now-president Donald Trump openly talking about sexual assaulting women, his opponent, Hilary Clinton made it a campaign issue, saying:

“What we all saw and heard on Friday was Donald talking about women — what he thinks about women, what he does to women.”

Following that debate, a number of women came forward, saying “me too”, raising their own allegations of sexual assault and inappropriate behavior against the current present.

By the 2018 midterm elections, the Me Too Movement was in full swing, and the Democratic Party had made its messages part of the party platform. Democrats running for office set themselves apart, contrasting themselves with the allegations of sexual assault against the President, and his Supreme Court nominee, Brent Kavanaugh.

The Nation Wrestles with Sexual Harassment in Politics

Even though Ms. Russo is no longer in the race, sexual assault and harassment promises to remain a hot topic in the 2020 election cycle. Earlier this year, before Ms. Russo’s ads aired, Tara Reade accused Democratic presidential front-runner Joe Biden of inappropriate sexual touching. Ms. Reade worked as a staff assistant in Biden’s Senate office. She said that Mr. Biden had sexually assaulted her in 1993, pinning her against a wall and reaching under her clothing to touch her. Others have also come forward saying that Mr. Biden had kissed, hugged, or touched them in ways that made them feel uncomfortable. The New York Times investigation into the issue “found no pattern of sexual misconduct by Mr. Biden.”

However, the way the Democratic Party has addressed Ms. Reade’s allegations have caused some to claim hypocrisy. In the three years since the Me Too movement Biden and other Democrats have expressed a zero-tolerance position against sexual misconduct, positioning the party as “for women, by women.” That position paved the way for Ms. Russo and other political candidates to come forward and tell their stories of sexual abuse and harassment. Now that there are allegations of the same nature against the presumptive head of the party, gender issues, sexual abuse, and the Me Too Movement promises to play an important part of the campaign leading up to November 3.

Political staffers and federal government employees face sexual harassment and abuse just like in any other part of society. At Eisenberg & Baum, our sex abuse attorneys take every story seriously. If you have been the victim of sex abuse by a superior, colleague, or anyone, we will listen to your story and help you get justice against your abuser. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help navigate the criminal, civil, and regulatory processes needed to help you find justice. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

Supreme Court Extends Civil Rights Protections to LGBTQ Employees

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Can you be fired from your job for coming out as gay or transgender? Not anymore. In a landmark case, the Supreme Court has extended Title VII civil rights protections to LGBTQ employees nationwide. The opinion, written by Trump appointee, Justice Neal Gorsuch, surprised legal commentators and solidified gay and trans* workers’ right to be free from workplace discrimination because of their sexual orientation or gender identity.

A Queer-Friendly Ruling from a “Conservative” Supreme Court

June was pride month across the U.S. and around the world. It also lines up with the end of the Supreme Court’s yearly term. In recent years, that has meant that LGBTQ advocates have looked forward to June as a time for big decisions on gay rights coming down from the country’s highest court. However, the appointment of two conservative Supreme Court justices in recent years meant that this June brought more anxiety than anticipation.

Last October, the Supreme Court heard oral arguments on three consolidated cases involving sexual orientation and gender identity discrimination:

  • Bostock v Clayton County, where a child welfare services coordinator was discriminated against based on sexual orientation and gender stereotyping
  • Zarda v Altitude Express Inc, where a skydiving instructor was fired for revealing he was gay
  • RG & GR Harris Funeral Homes Inc v EEOC, where a transgender woman was fired after informing her employer she would be presenting as a woman at work and complying with female dress codes

Following oral arguments, commentators found it hard to tell whether the Supreme Court would side with the LGBTQ employees, or find in favor of the employers. While the newly-appointed conservative justices had asked some questions tending to show their support for LGBTQ civil rights protections, those familiar with the Court warned that it is never wise to assume what will happen between oral argument and the release of a written decision. That is why the final opinion, written by Justice Neal Gorush and released on June 15, 2020, caught some by surprise.

Supreme Court Says Sexual Orientation and Gender Identity Discrimination are Necessarily “On the Basis of Sex”

The question before the court boiled down to whether sexual orientation and gender identity discrimination were forms of discrimination “on the basis of sex” under Title VII of the federal Civil Rights Act, or whether they were different forms of discrimination beyond what the legislature had intended to cover at the time it passed the law in 1964. The opinion said:

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The 33 page majority opinion was signed by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, making it a 6-3 decision. Justices Alito and Kavanaugh each filed dissenting opinions, and Justice Thomas joined with Justice Alito’s dissent.

Those who read the opinion closely may have been disappointed to see that it framed questions of sexual orientation and gender identity discrimination on the basis of sex, “referring only to biological distinctions between male and female.” Transgender advocates in particular often try to distance questions of gender identity and expression from the sometimes arbitrary assignments of sex made by doctors at the time of a child’s birth.

However, this language reflects Justice Gorush’s attempts to tie the opinion as closely as possible to the actual wording in the federal civil rights statute, which says it is “unlawful . . . for an employer . . .  to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s . . . sex.” The Court emphasized that Title VII complaints need only show that a person’s sex was a motivating factor in an employer’s decisionmaking.

“So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.”

The Court said this is an individual right, and that employers violate Title VII when they act against an individual because of that person’s sexual orientation or gender identity, even when the employer would treat all gay or transgender employees or applicants the same (by firing them or refusing to hire them).

What the Ruling Means for LGBTQ Employees

When the Supreme Court found that “homosexuality and transgender status are inextricably bound up with sex” it unlocked access to all of Title VII’s civil rights protections for LGBTQ employees. Workers across the nation who are fired because of who they love or their gender expression may now file complaints with the EEOC and have their cases heard in federal court. This has already been true in parts of the country, including New York where the state Human Rights Law explicitly includes sexual orientation and gender identity. However, in the 29 states without explicit state-level protections, queer and LGBT workers can now rest assured that their rights will be protected under federal law.

At Eisenberg & Baum, LLP, our gender discrimination attorneys make it our job to stay on top of changes in the law, here in New York, and across the country. 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.

Cheer Star Lawsuit Brings to Light Sex Abuse in Competitive Cheerleading

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The general public may think of cheerleading as a “sexy” activity involving attractive women and the strong men who hold them in the air. However, competitive cheerleading is an active and intensely competitive sport involving children as young as 5 years old. Now Cheer star Jerry Harris has been federally charged and civilly sued for sex abuse after admitting to soliciting pornographic images from members of his team. The lawsuit is shining a light on an industry whose record of responding to sex abuse complaints is shady at best.

Competitive Cheerleading Isn’t About Being “Sexy”

The idea of cheerleading brings to mind young women in short skirts and pom-poms standing on the sidelines of a high school football or basketball game rooting for their team. However, competitive cheerleading is an athletic sport unto itself. According to the USA Today, more than 3.7 million people participate in cheerleading competitions every year — from age 5 through college — including both boys and girls. At its highest levels, competitive cheerleading involves college athletes performing aerial gymnastics on nationally televised competitions.

The world of competitive cheerleading has been given a spotlight by the popular web-streaming service, Netflix. Its documentary series Cheer, released in January 2020, followed Navarro College’s cheerleading team through a year of competition. But now that spotlight has revealed some ugly secrets hiding in the sport’s shadows.

Jerry Harris Admits Soliciting Pornography from Teenage Cheerleaders

On Thursday, September 17, 2020, Jerry Harris, celebrity youth cheerleading coach and star of the Cheer series was arrested by the FBI and charged with producing child pornography. The victims of his sexual abuse were 10 to 15 minors, including 14-year-old twin brothers who were on Harris’s cheerleading squad. Charlie and Sam (whose last name is anonymous) reported that Harris had put them through more a year of sexual harassment, both online through Snapchat, and at cheer competitions. The pattern of sexual abuse began when he was 19 and they were only 13 years old.

Based on the twins’ reports, the FBI began an investigation that revealed Harris had solicited explicit imagery from 10-15 known minors, had sex with a 15-year-old during a cheerleading competition, and paid a 17-year-old for nude photos. Harris, now 21 years old, has admitted his involvement. The boys’ mother has now filed a lawsuit against Harris, as well as against the athletic company Varsity Spirit, which runs the cheer competitions, USA Cheer, and the United States All Star Federation (USASF).

A History of Ignoring Sex Abuse Complaints in Competitive Cheer

The two organizational defendants are responsible for regulating the sport of competitive cheerleading. The lawsuit alleges that they have been ignoring complaints of sex abuse in competitive cheer, and not doing enough to protect the young men and women who compete in the sport.

That complaint is supported by the USA Today’s investigation of competitive cheerleading published earlier this year. According to the report, the USASF and USA Cheer had nearly 180 people affiliated with their youth cheerleading organizations who had been charged or convicted of sexual misconduct involving minors. That included more than 140 convicted sex abusers and 74 registered sex offenders including choreographers, coaches, and gym owners. The report said that as of mid-July, the governing bodies had just 21 individuals on its public-facing list of suspensions and bans — a list designed to warn parents and gym owners about potential threats to their children. However, during the two months of the USA Today’s investigation, that list grew to 118 names, mostly due to the newspaper’s efforts to identify sex offenders and child molesters associated with the organization.

USA Cheer Policy Protections Only Go So Far

The lawsuit against Harris, USASF and USA Cheer says that, “a systemically exploitative environment that has been bubbling within the All-Star Cheer community for years.” Harris is said to have taken advantage of that environment. According to Dana Moore Storms, a former cheerleading coach and cheer-mom, who spoke to Teen Vogue about the lawsuit:

“I think that the culture of the sport kind of created an unfortunate perfect breeding ground for children to be taken advantage of. . . . The focus at cheer competitions with security has been more [about] who is walking in the door than what the people inside the door are doing.”

USA Cheer released a statement saying it “takes any allegation of sexual misconduct very seriously” and does “everything possible to safeguard our kids.” However, the lawsuit alleges that USASF, USA Cheer, and Varsity Spirit were informed of Harris’s sexual harassment, exploitation, and molestation of children in the past, and failed to investigate the claims or monitor his activities. Nancy Hogshead-Makar, the CEO of Champion Women, told Teen Vogue:

“‘It’s like any other youth-serving organization,’ she says. ‘Wherever you find two ingredients, you’re going to find sexual harassment and abuse. One is children. The other is power.’ Putting policies in place to protect minors, and enforcing those policies, is ‘expensive, it’s time consuming, it costs relationships and strife within an organization. But it has to be done.’”

The competitive cheerleading lawsuit, if it prevails, will demonstrate that having the policies in place is not enough. Organizations like USA Cheer must be held accountable for doing the work of enforcing them to protect student athletes from sexual abuse by their coaches, gym owners, and other adults.

At Eisenberg & Baum, LLP, we know how ard it can be to come forward and report sex abuse when it happens, especially in the context of teenage athletes. If you have been abused because of your participation in a sport such as competitive cheerleading, we will help you get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Discrimination Concerns Raised by DOJ for Yale’s College Application Process

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The Trump Administration’s Department of Justice has had its eye on Affirmative Action policies used at Ivy League colleges for years. Now, while a private lawsuit against Harvard goes up on appeal, the DOJ has turned its attention to Yale University, and what it calls racial discrimination against Asian Americans and white applicants in the college application process.

Yale University Targeted for Application Discrimination by DOJ

On August 13, 2020, the U.S. Department of Justice announced it had found that Yale University illegally discriminated against Asian-American and white applicants in its undergraduate college application process. The press release included this statement:

“There is no such thing as a nice form of race discrimination,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “Unlawfully dividing Americans into racial and ethnic blocs fosters stereotypes, bitterness, and division. It is past time for American institutions to recognize that all people should be treated with decency and respect and without unlawful regard to the color of their skin.”

The notice targeted Yale’s Affirmative Action policies that are designed to lift up racial minorities. These students are often at a disadvantage when applying to elite colleges and universities because of reduced access to educational opportunities in their communities, and the lower standardized test scores that result. The notice demanded that Yale not use race or national origin in its 2020-2021 undergraduate admissions cycle, and then submit a plan for future college admissions processes showing how it would narrowly tailor the use of race, and identify a date for ending its use entirely.

Yale Responds Saying Admissions Policies Promote Diversity on Campus

It appears Yale has no intention of complying with the DOJ’s demands. It issued a statement saying that its applications process looks at the “whole person”, considering academic achievement, interests, leadership, and “the likelihood that they will contribute to the Yale community and the world.” Peter Salovey, Yale’s president, told the New York Times:

“The department’s allegation is baseless. . . . At this unique moment in our history, when so much attention properly is being paid to issues of race, Yale will not waver in its commitment to educating a student body whose diversity is a mark of its excellence.”

The notice also demonstrates the Department of Justice’s shift on how it views diversity and racial discrimination under the Trump Administration. Rachel Kleinman, senior counsel at the NAACP Legal Defense and Educational Fund said she was “shocked but not surprised” by the finding. The New York Times reported:

“This particular Department of Justice has been laser-focused on ending affirmative action,” she said, adding that she believed the department’s finding was “a foregone conclusion before they started their investigation. . . .

“They’re sticking with the analysis that any use of race is racism and insidious.”

Affirmative Action and Racial Discrimination Under Title IX

Affirmative Action and racial discrimination have come before the courts before. The U.S. Supreme Court has allowed colleges and universities to use race as one factor among many in their admissions process when the purpose was to promote diversity. However, these lawsuits have been raised under the U.S. Constitution’s 14th Amendment Equal Protection Clause.

The DOJ notice, and any lawsuit related to it, would instead be based on a violation of Title IX of the 1964 Civil Rights Act, which requires educational facilities that receive federal funding to avoid discrimination based on protected traits, including race and national origin. The federal Civil Rights Act is designed to protect students, employees, and residents from discrimination and promote fair treatment of minorities. However, the language of the law is neutral, which allows members of the majority (in this case white students) to use it when they feel they have been discriminated against in favor of minorities. This is sometimes called “reverse racism” or “reverse discrimination.” If a federal court finds that the Yale University college admissions process violated Title IX by including racial discrimination in its application process, it could require the university to change how it admits students or lose federal funding.

Harvard College Application Process, Approved by Judge, Now Up on Appeal

The timing of the notice to Yale University is also getting the attention of commentators. It came less than a month before DOJ attorneys were expected to present the same argument in a private lawsuit by Asian-American students against Harvard College. The students, represented by Students for Fair Admissions, brought their lawsuit as an Equal Protection claim.

Last year, Judge Allison D. Burroughs of the United States District Court for the District of Massachusetts, ruled in favor of the college. Her 130-page opinion said Harvard’s college application process wasn’t perfect, and could be susceptible to implicit bias by admissions staff. However, overall she found the process fair and committed to attracting applicants “who are exceptional across multiple dimensions.” Race, she said, was only ever used as a “plus” factor, not to hurt applicants.

“Although racial identity may be considered by admissions officers when they are assigning an applicant’s overall rating, including when an applicant discloses their race but does not otherwise discuss itin their application, race has no specified value in the admissions process and is never viewed as a negative attribute. Admissions officers are not supposed to, and do not intentionally, consider race in assigning ratings other than the overall rating.”

The Harvard case is currently up on appeal before the United States Court of Appeals for the First Circuit. Many commentators believe it will eventually make its way before the U.S. Supreme Court. This will give a panel of judges including at least two appointed by the Trump Administration a new opportunity to weigh in on Affirmative Action and racial discrimination. Depending on how the Yale situation progresses, it could become a hotly contested lawsuit as well, defining students’ rights in the area of application discrimination not only under the Equal Protection Clause of the Constitution, but under Title IX as well.

At Eisenberg & Baum, LLP, our discrimination attorneys understand the complex relationship between Affirmative Action and racial discrimination, both for students, and the employees of colleges and universities. If you believe Affirmative Action has improperly worked against you, we can help you review your options and protect your rights. Contact Eisenberg & Baum, LLP, today to talk to a discrimination attorney.