McDonald’s Sues Former CEO Over Accusations of Sexual Harassment

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Fast-food retail giant McDonald’s reported a lawsuit against their former CEO, Steve Easterbrook, over accusations of sexual harassment, violations of company policy against relationships with subordinates, and using the company email to send pornographic pictures to himself. Find out what happens when company efforts to avoid public disclosure of sexual harassment problems backfire.

Fast Food Giant Faces Frequent Sexual Harassment Problems

McDonald’s has faced more than one claim of sexual harassment in their fast food restaurants over the years. In 2018, workers walked out in protest of sexual harassment in the fast food industry. Last year, the Time’s Up Legal Defense Fund and other civil rights organizations brought 23 complaints against the company for sexual harassment of its employees, including several who were teenagers when their assaults occurred. However, all these complaints involved service-level employees at the business’s various franchise locations.

Then, in October 2019, a McDonald’s employee reported that she had been having a romantic relationship with the company’s CEO, Steve Easterbrook. The employee told the company that she and Easterbrook had been sending sexually explicit text messages, photographs, and at least one FaceTime call for a month, but that it had not been physical. She came forward because she was afraid that this relationship would violate company policy against fraternization and that she might get in trouble for consenting to the contact.

McDonald’s CEO Fired for Accusations of Sexual Harassment

McDonald’s hired outside lawyers to review the complaint and Mr. Easterbrook’s situation. As required by Title VII of the Civil Rights Act, the fast food company investigated the claims of sexual harassment and questioned Mr. Eastbrook about his conduct. He confirmed what the employee had said. The lawyers involved searched Mr. Eastbrook’s company phone and cloud storage account, but said they found no evidence of additional misconduct.

The company’s board of directors decided to remove Easterbrook from his position. But they gave him a golden parachute by avoiding firing him “for cause.” This meant he received a severance package of more than $40 million, including stock options and other compensation.  The board hoped that the compromise would avoid embroiling the company in a lengthy dispute and cause as little disruption as possible to the business.

New Accusations of Sexual Harassment Cast Doubt on Investigation

But McDonald’s sexual harassment problem didn’t go away with Easterbrook’s removal. In July 2020, new accusations of sexual harassment arose against the former CEO from another employee. According to the company’s SEC disclosure, this time the investigation included a review of the company’s corporate servers, where Easterbrook’s emails were archived. It revealed “dozens of nude, partially nude, or sexually explicit photographs and videos of various women, including photographs of these Company employees, that Easterbrook had sent as attachments to messages from his Company email account to his personal email account.”

This new disclosure cast doubt on the company’s previous investigation. Even McDonald’s own filings say the company’s initial review did not include a thorough search of Easterbrook’s email account. As Brandon L. Garrett, a law professor at Duke University School of Law, told the New York Times:

“One would think that it would be internal investigation 101 to look at all electronic records right away. . . . The concern, if an investigation doesn’t look at emails, is that it was a halfhearted investigation.”

That concern is consistent with McDonald’s stated intent to resolve things quickly and quietly. In 2017, McDonald’s made an internal statement emphasizing that top executives needed to attend anti-harassment training. Then in 2019, it updated its anti-harassment policy in response to employee complaints.

When executives are called out for misconduct by groups like the #MeToo movement or Time’s Up, their companies often try to quietly remove the problematic executive, rather than risk the bad press that comes with public disclosure of the allegations of sexual harassment. They may also make adjustments to internal training procedures or announcements within the company about anti-harassment policies to placate employees who raise concerns, and avoid letting the issue go public. This can sometimes address the individual employee’s concerns, but it seldom makes significant changes to corporate culture or toxic workplace environments.

Lawsuit Seeks to Protect McDonald’s Corporate Culture

That is why McDonald’s public disclosure of its lawsuit against Easterbrook is so unique. On Monday, August 10, 2020, the company sued its former executive for lying to its investigators, covering up his inappropriate relationships with employees, and committing fraud by transferring hundreds of thousands of dollars in stock grants to one of those employees during their relationship. The company hopes to reclassify his firing as “for cause” and “claw back” the severance compensation Easterbrook received.

Even though it is unusual for a company to publicly air its dirty laundry, the SEC disclosure doesn’t mean McDonald’s has turned a new leaf. The complaint clearly demonstrates McDonald’s attempt to protect its reputation. It emphasizes the company’s integrity, ethics, and values, and lays out efforts the company had taken in response to previous complaints that it had a sexual abuse problem. By filing this lawsuit, in addition to recovering the money it paid to make Easterbrook go away, McDonald’s hopes to distance itself from Eaterbrook’s relationships, and the accusations of sexual harassment that they caused.

At Eisenberg & Baum, LLP, our sexual harassment attorneys understand the strategies large corporations use to cover up the sexual harassment claims. We know how to leverage companies’ desire for privacy to help employees receive quick settlements when appropriate, and we aren’t afraid to file formal litigation when settlement isn’t an option. If you work for a large corporation and are facing a sexual harassment problem, contact us today to schedule a free consultation.

Olympic Coach and Figure Skating Organizations Sued for Sexual Abuse and Cover Up

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Figure skating abuse is not the phrase that conjures up the elegant images of prime athletes oft associated with the sport. Olympic figure skating has long been one of the most popular competitions in the Winter Games. But looking at the beautiful skaters, it can be difficult to remember that many of them are just teenagers. Over the past year, reports of sexual abuse and cover up coming out of the U.S. and France show that coaches and competitors often ignored the line between child and adult, creating situations where teen athletes couldn’t avoid becoming the victims of sexual abuse.

Figure Skating Abuse Allegations Lead to Skater’s Suicide

In June 2008, while participating in a figure skating camp in Colorado Springs, Colorado, at age 17, Olympic figure skater Ashley Wagner woke up to find her teammate John Coughlin on top of her. He was 22 years old at the time. He kissed her neck and put his hand down her pants. At first, she describes herself as being “paralized in fear.” She laid there, pretending to be asleep and hoping he would stop. He didn’t. Eventually she gathered the courage to grab his hand and tell him to stop. Thankfully, he did.

By the next day, everyone around her, including Coughlin, was acting like nothing happened, so she did too. She told two people she was close to, but not her parents because she had been at a party, drinking alcohol. More than a decade later, she told the USA Today:

“There also was this: I was a young skater coming up through the ranks in a judged sport. I didn’t want to stir the pot. I didn’t want to add anything to my career that would make me seem undesirable or dramatic. I didn’t want to be known in figure skating as the athlete who would cause trouble. And I genuinely didn’t feel like anyone would listen to me anyway. Everyone really liked this guy. I even liked him.”

Wagner would go on to receive a bronze medal in the 2014 Olympics and a silver medal in the 2016 World Championships, but that moment would continue to haunt her. Eventually, she reported what happened to the U.S. Center for SafeSport. Wagner’s story was one of three reports of sexual abuse against John Coughlin, who was himself an Olympic champion. The organization issued an interim suspension while it investigated the complaints. However, the next day, on January 18, 2019, Coughlin committed suicide.

USFS Representatives Seem to Blame Teenage Victims for Sexual Assault

Coughlin’s suicide has colored the way the sport talks about figure skating sexual abuse charges. While the U.S. Figure Skating (USFS) issued a statement emphasizing athlete safety education and awareness, its representatives have struggled to uphold that message. Mark Ladwig, an USFS representative, spoke in defense of Coughlin saying that sometimes in skating a man’s hand can slip onto a woman’s crotch during a lift. But on-ice hand placement had nothing to do with the allegations Wagner and her teammate Bridget Namiotka had raised against Coughlin.

A similar incident arose in December 2019, when the USA Today reported on an investigation into French skater Morgan Cipres, age 26. Cipres faced allegations that he had sent photos of his penis to a 13-year-old skater on the U.S. team. Gordie Zimmerman, owner of the ice rink where the two trained called the 13-year-old “dangerous”. Wagner said she had been contacted as well:

“I had people messaging me that the 13-year-old girl was instigating a lot, and I had to remind them that was basically shaming a child for something that she does not even have the brain development to be able to understand. . . . A 13-year-old is still very much a child.”

Olympic Coach Misconduct Leads to Lawsuit Alleging Cover Up

Nor can the trouble with sex abuse in figure skating be dismissed as children and young adults exploring their sexuality. Allegations have also come forward of sexual misconduct by Richard Callaghan, a long-time Olympic coach. Callaghan had worked with Tara Lipinski and Todd Eldredge in 1998. Around the same time, he was also grooming a 14 year-old boy, Craig Maurizi, according to the lawsuit Mr. Maurizi filed in the Federal District Court in Buffalo, New York, earlier this year.

Maurizi says he began taking lessons from Callaghan in 1976 at age 13. The abuse began the next year. His lawsuit says that Callaghan isolated him, offered him pornography and alcohol, and eventually had sex with him, all while Maurizi was still a minor. Maurizi said he developed a substance abuse disorder and an eating disorder as a result of Callaghan’s control and “constant” sexual abuse. The figure skating abuse and behavior continued for years — even after Maurizi had become a figure skating coach himself.

Maurizi wasn’t alone. Last year, the U.S. Center for SafeSport permanently barred Callaghan from the sport after Adam Schmidt and three other skaters publicly accused Callaghan of sexual misconduct. However, Callaghan appealed his penalty to an independent arbitrator, who reduced it to a simple three-year suspension.

That’s not enough, Maurizi says. He filed his lawsuit under the New York Child Victims Act, naming Callaghan, U.S. Figure Skating, the Professional Skaters Association, and the Buffalo Skating Club as defendants. The lawsuit says that Callaghan’s behavior was widely known within the skating associations, but willfully ignored because of his success as a coach. Mr. Maurizi told the New York Times:

“I need for Richard Callaghan to be stopped. . . . I’m committed to stop giving him the opportunity to abuse anyone else.”

At Eisenberg & Baum, LLP, we have that same dedication to stopping sex abuse when it happens. We have a team of attorneys who know what to do in the face of sex abuse in the context of professional and teenage athletes. If you have been abused because of your participation in a sport, we will help you get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Jacksonville Reinstates Anti-LGBTQ Discrimination Ordinance after Courts Struck It Down

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Cities all across America have passed anti-LGBTQ discrimination ordinances to protect their residents from hate. But these ordinances often face stiff opposition and even lawsuits from right-wing advocacy groups like Liberty Counsel. Find out what happened when one court in Florida struck down a local law, and how a recent U.S. Supreme Court case is coming to the Queer community’s aid.

Court Strikes Down LGBTQ Discrimination Ordinance Over Formatting

In 2017, after five years of public debate, the Jacksonville City Council passed the city’s Human Rights Ordinance (HRO). This ordinance, like other state and local Human Rights laws in New York and across the country, prohibited discrimination in the workplace and in residential housing based on sexual orientation and gender identity. However, the ordinance also included exemptions for religious organizations including hospitals and emergency shelters that did not apply to other forms of discrimination banned by the law.

But five years of debate wasn’t enough to guarantee even these limited protections to Jacksonville’s LGBTQ residents. After the ordinance became law, the right-wing group Liberty Counsel took the matter to court. They represented John Parsons, a Jacksonville resident, who said the new HRO injured his “personal bodily privacy, modesty and dignity,” along with Liberty Ambulance Service and Diamond D. Ranch. These businesses claimed that the HRO conflicted with their religious beliefs.

Liberty Counsel’s complaint was dismissed in late 2017. Senior Circuit Judge Michael Weatherby called their injuries “speculative” and insufficient to justify the action. However, the case pressed on through an appeal to the 1st District Court of Appeals in Florida.

Then, in May 2020, Liberty Counsel got what it wanted, if not for the reasons it had told the press. The appeals court struck down the LGBTQ discrimination ordinance, saying the way that it was passed violated state and local laws. The appellate decision didn’t address Liberty Counsel’s claims that the HRO was unconstitutional religious discrimination. Instead it focused on the practical problems with the bill’s formatting.

Because of a clerical error, the section of the bill that outlines which statutes and ordinances would be amended was missing. Without that language the 2017 HRO was just a promise to change the Jacksonville non-discrimination ordinance — not an actual amendment to the law. Because of this, the court of appeals struck the ordinance down, essentially telling the City Council to try again.

Jacksonville City Council Quietly Reinstates Anti-LGBTQ Discrimination Ordinance in a Video Conference

The up-side to the court of appeal’s use of a technicality to strike down the HRO is that it was easy to fix. About a month after the court issued its decision, the Jacksonville City Council quietly reinstated the anti-LGBTQ discrimination ordinance. Unlike the 2012 version, or even the 2017 law that passed, this one happened without public controversy or uproar.

Because of COVID-19, the City Council met virtually, via video conference. There were no public speakers, and no discussion among the councilmembers over reinstating the bill. The new human rights ordinance passed with a veto-proof majority of 15 to 4, and was signed into law, again.

Supreme Court’s Bostock Opinion Gives Allies a Tool in Defending the New Non-Discrimination Ordinance

It may seem like reinstating the ordinance will just give Liberty Counsel a chance to file a new lawsuit — maybe with stronger plaintiffs this time. However, since the initial complaint was filed in 2017, a much bigger decision has made any new lawsuit much harder to win.

In June 2020, the U.S. Supreme Court issued its opinion in Bostock v Clayton County, which consolidated three different workplace discrimination cases involving gay and Trans* employees. The opinion, written by Justice Neal Gorush, established a nationwide law that sexual orientation discrimination and gender identity discrimination are necessarily forms of sex discrimination under Title VII — the federal anti-discrimination law. While LGBTQ advocates may have preferred a more sweeping decision than they received from the conservative justice, they will undoubtedly use the language in Bostock to defend against attacks on state laws and local ordinances designed to protect LGBTQ residents in the future.

At Eisenberg & Baum, we understand the damaging affects of sexual orientation and gender identity discrimination. We know how to use federal and state laws as well as local ordinances to stop the harassment and diffuse toxic working environments. From our office in New York City, our employment discrimination attorneys travel nationwide, helping LGBTQ workers negotiate with employers who simply do not understand the recent changes to the law. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your sexual orientation, gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against genderqueer discrimination.

Jones Day’s Pay Discrimination Cases Could Become a Collective Action

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The $2 million pay discrimination cases against the Jones Day law firm has been around for a while. Initially filed in April 2019, the case has progressed through rounds of discovery and survived a motion to dismiss by the employer. Now the women lawyers who filed the case are asking the court for provisional certification of their Equal Pay Act claims as a collective action. Here’s what that means for the rank and file lawyers working for the firm across the country.

Gender Discrimination Lawsuit Says Jones Day Treats Women Lawyers Worse

Last year, six women attorneys at the Jones Day law firm made big news by filing a lawsuit against their employer for gender discrimination, pregnancy discrimination and violations of the Equal Pay Act. As explained in an earlier blog post, the Complaint, filed in the United States District Court for the District of Columbia said the firm’s “fraternity culture” stood in the way of women associates’ career advancement, caused them to be paid less than their male coworkers, and face discrimination when they became pregnant or even asked about the company’s maternity leave policies.

The title of that document, filed on April 3, 2019, was “Class and Collective Action Complaint”. That title, and the portions of the Complaint that support it, mean that the six plaintiffs listed in the document aren’t just looking to be compensated for their own losses. Instead they are hoping to force Jones Day to make systemic changes in the way they set associates’ pay and address workplace discrimination complaints to improve the way all the women lawyers are treated in the firm’s offices nationwide.

Collective Actions Versus Class Actions — Why It Matters

Notice that the complaint has two parts: class action and collective action. That is because the federal statutes controlling gender discrimination and pay discrimination have different procedures to deal with systemic problems. Title VII of the Civil Rights Act and the Pregnancy Discrimination Act both use traditional federal class action rules. For a lawsuit to apply to an entire class of people (like all women employees of the Jones Day law firm), the plaintiffs in that case have to show four things:

  1. Numerosity — that there are so many people affected that it doesn’t make sense for them each to file their own lawsuit
  2. Commonality — that everyone in the class has been affected by the defendant’s actions in similar ways
  3. Typicality — that the individual plaintiffs who filed the lawsuit has the same interest and suffered the same type of injury as the rest of the people affected
  4. Adequacy of Representation — that the individuals and law firms involved have the ability to protect the interests of the class members

There are a lot of legal technicalities that go into whether a class will be certified, and many would-be class actions don’t end up applying beyond the individuals who filed them. However, a class action remains a powerful tool in cases where there is systemic gender discrimination against large numbers of employees.

Complaints under the Equal Pay Act work differently. Instead of allowing plaintiffs to file class actions on behalf of everyone in a similar situation, they instead use collective actions. The biggest difference between a collective action and a class action is that in a collective action, employees not already part of the case receive notice of an opportunity to opt in to the case. In a class action, those employees still receive a notice, but it informs them their claim will be included in the litigation unless they opt out.

Because of this, it is much easier to have a case certified as a collective action than a class action. A case will receive “conditional certification” as long as there are some facts showing that the individual plaintiffs and the potential opt-in plaintiffs all were affected by the same illegal policy or plan. Later on, after the parties have gathered more evidence, the court may review the certification, decide if the cases are as similar as they originally seemed, and if not, dismiss the opt-in plaintiffs claims “without prejudice” so they can file them separately on their own.

Jones Day’s “Black Box” Unfair Pay Practices Created Collective Action Claims, Plaintiffs Say

The women attorneys in the Jones Day case have asked the federal court for conditional certification on their Equal Pay Act claims. They say Jones Day’s firm-wide policies about compensation, salaries, and pay secrecy are the kind of illegal policies that collective actions are designed to protect against. According to the women, the compensation for all associates, regardless of geographic location or area of practice, are all based on the same criteria. Ultimately, all compensation decisions — including raises — are made by managing partner Stephen J. Brogan and two firm-wide leaders. This “black box” decision-making means that a decision in the collective action could be applied company-wide, without worrying about individual geographic considerations.

Jones Day’s lawyers are fighting back against collective action. They say that associate pay is determined through a multi-layered process and that dozens of attorneys weigh in on the decision. However, even they admit that local managers don’t have the final say, nor can they modify the Managing Partner’s final decisions.

And some of those decisions result in pay discrimination, say the plaintiffs. The data they have received in discovery so far shows in 23 cases out of 100, local salary recommendations were changed when they got to the Managing Partner, including 3 cases where male associates were given $20,000 – $40,000 raises. No female associate received nearly that much.

Now it is up to the federal district judge to decide if the Jones Day women lawyers should be allowed to opt in to a collective action to protect their rights to Equal Pay. If they do, it could mean the law firm will be required to completely rework how its associates are compensated, and more women lawyers could find their way to making partner.

At Eisenberg & Baum, LLP, we aren’t afraid to take on the big cases. We know how to use the tools of class actions and collective actions in federal court to help you and your coworkers fight your pay discrimination cases. If you are being paid less than you deserve and suspect 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.

Hollywood Seeks to Close Gender Gap but Sex Abusers Find New Work

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Hollywood’s TV, movie, and streaming producers have been making space for diversity in lead roles and seeking to close the gender gap following years of sexual harassment complaints. But it seems there is still space for those with checkered histories too. Sex abusers are finding new work, and some advocates say the change hasn’t been enough.

MeToo, Time’s Up, and ReFrame Put Gender Gap and Diversity Issues Center Stage

Over the past two and a half years, the #MeToo movement has been calling out sex abusers within the entertainment industry. The most famous of these was producer Harvey Weinstein, co-owner of the Weinstein Company, who was convicted of two counts of criminal sexual conduct earlier this year in New York state court. Similar allegations have been raised against Hollywood A-List actor Cuba Gooding Jr., and John Lasseter, chief creative officer and co-founder of Pixar Animation Studios. The streaming video industry has faced its own problems with sex abuse. In 2018, Roy Price stepped down as head of Amazon Studios after being accused of sexual harassment. He was replaced by Jennifer Sallke, formerly of NBC Entertainment.

Advocates Call for Increased Representation, Starting at the Top

Advocates for women and minorities know that it isn’t enough to remove a few bad actors. That’s why they have been pressuring Hollywood to close the gender gap and introduce more diversity into its programming, both on screen and behind the camera. And it’s been working.

The New York Times reports that the Hollywood entertainment industry is becoming more inclusive, thanks in part to streaming services demanding new and more varied content. Women and people of color have been stepping into more leading roles and director positions, finding their own place in an industry that has historically been male and white. Melissa Rosenberg, creator of the Netflix show “Jessica Jones” and executive producer for “Dexter” said she has begun to notice a change in corporate culture.

“‘There were very specific intentions from the studio and the network to have diverse voices in the room,’ … She added that she had been told, ‘You will not have a room without people of color and diversity of gender and sexual orientation.’

“‘That was a big change,’” Ms. Rosenberg said. “‘When I was coming up it would be sufficient to have one woman in the room — to represent the female voice — and she was often the lowest-paid writer, too.’”

Hollywood Introduces Intimacy Coordinators to Protect Against Sex Abuse on Set

While more women and people of color have been coming into positions of power, their right to consent is also coming into sharper focus. Entertainment industry heavyweights like HBO have begun requiring intimacy coordinators (also called intimacy directors in theater) for scenes involving nudity intimacy. These intimacy coordinators explain their jobs as “fight choreography for sex scenes.” However, they are also responsible for making certain the actors involved are comfortable with role they are playing.

In the past, intimate scenes were essentially improvised until the director was satisfied. Actress Humberly González explained that sometimes that resulted in actors doing more than they bargained for:

“She and her scene partner, whom she met earlier that day, were going to be filmed kissing from outside a camping tent, outlined in silhouette. There was no rehearsal and no specific choreography. When it was time to shoot, the two actors clambered inside the tent and were instructed to ‘just go for it,’ González recalled, while the director watched from outside, shouting evaluations.

In González’s situation, she and her scene partner were touching the whole time, and he became unintentionally aroused. ‘It was so awkward,’ González said.

However, speaking up about their emotional needs often came with a price. González explained that if she had raised her feelings of discomfort, she may have been perceived as a problem or even “lose the job.”

“There’s always this very scary feeling of: If I share my true feelings, am I going to be hired again?”

That’s where the intimacy coordinators come in. They serve as a go-between, helping to choreograph intimate scenes in a way that respects the actors’ feelings and consent, while still allowing directors to get the shot.

Sex Abusers Find New Work, Showing Power is Still in “White Dudes’” Hands

At the same time, many men accused of sexual harassment and abuse have been able to find new work. Lasseter, for example, is now working in a high position at Skydance Animation. David Glasser and Bob Weinstein, former partners at the Weinstein Company, have each opened their own production companies. Mr. Glasser has already raised $300 million in financing to once again become a major player in the industry.

Those women who stepped up to fill the vacuum of power at the top, are also finding themselves pushed back down the ladder. Earlier this year, Amazon brought in former Sony executive Mike Hopkins to oversee Amazon’s video entertainment business, placing him between Ms. Salke and Jeff Bezos, the company founder. Nina Jacobson, a veteran producer and the former president of Disney’s Buena Vista Motion Pictures Group told the New York Times:

“No matter how much things are shifting in the right direction, when you get to the top of these media companies, you will usually find a white dude. . . . The power behind the power is still white and male, and in terms of truly passing the torch in corporate life, the torch has not yet been passed.”

Even in light of Hollywood’s push to close the gender gap and improve diversity in lead roles, it is clear that sexual harassment and abuse are not going away anytime soon. At Eisenberg & Baum, LLP, our experienced sexual abuse attorneys and sexual harassment attorneys know how to respond when sex abuse rears its head on the job. 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.

Sexual Misconduct Allegations Shake Leadership at Gaming Giant Ubisoft

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More than a dozen current and former Ubsioft employees have come forward, complaining that the game producer has downplayed and ignored their claims of sexual harassment against top management for years. The French-based family business, run by 5 brothers, has employees all over the world, but as their workers have spoken up, saying “Me Too”, some of Ubisoft’s leadership is finally being held accountable for their actions.

If you or your children play video games, you probably have seen the work of gaming giant Ubisoft. With titles like Assassin’s Creed and Far Cry, Ubisoft is one the world’s largest game publishers. The gaming industry has been plagued with misogyny and sexism for years. Women software developers are routinely under-represented and underpaid compared to their male counterparts. But while employees at tech giants like Amazon and Google have made headlines, more specialized studios have flown under the radar of mainstream news until recently.

More Than a Dozen Sexual Misconduct Investigations Swept Under the Rug

Earlier this year, Bloomberg Businessweek published a report, pulling back the curtain on sexual misconduct investigations at Ubisoft Entertainment SA. The report detailed over a dozen female employees who had raised concerns about toxic work environments within Ubisoft’s offices in Canada, France, and here in the U.S. Ellen Lee, who worked in Ubisoft’s San Francisco office in the marketing and promotions department, told Bloomberg:

“The culture there is really hard as a woman. . . . If you weren’t part of the boys’ club, you were just working hard on the outskirts.”

The sexual misconduct complaints ranged from work outings held at strip clubs to one incident where a creative chief choked an employee at a release party. Employees have complained for years, but the company has done little to address their complaints. Fey Vercuiel, a former designer for the company said:

“You complain about something, it just gets swept under the rug.”

When Nina Stewart raised concerns that her manager was making sexist and fatphobic remarks, she was told to “talk it out” with him. Ubisoft did nothing until a male co-worker corroborated her third complaint. Then the company removed her boss and sent her a thank you card with a $200 gift card.

International Family Business Shields Friends’ Sexual Misconduct

Here in the U.S., employers are legally required to investigate claims of sexual misconduct, harassment, and gender discrimination. When they find the complaints are true, federal and state laws require employers to take reasonable steps to correct the problem — including by removing the offending employee (not the one who complained). But all too often, biases among those responsible for investigating sexual misconduct claims mean managers and executives are trusted, even when faced with multiple sexual misconduct complaints.

That appears to have been the case among the Ubisoft leadership. Unlike many other game publishers, Ubisoft has remained largely a family business since it was founded in 1986. The 5 Guillemot brothers who founded the company continue to own 21% of the company, maintain 5 seats on the board, and serve as executive officers within the large company.

They have also developed nearly familial relationships with some of their top executives. Serge Hascoët, chief creative officer, has been a close friend of the Guillemots’ for decades. He was given ultimate authority over which games the company would produce. In spite of allegations against Hascoët that he demeaned women and engaged in predatory behavior he was treated as a permanent fixture of the company. He and his team were “golden children,” said Cindy Fitzpatrick, who worked in Ubisoft’s public-relations department:

“No matter what they do, they seem untouchable.”

Sexism in Gaming Comes from the Top

The sexist and often frat-like culture at Ubisoft even affected its products, according to its employees. Several of the products in the Assassin’s Creed franchise — a historically based open-world action-adventure game — were originally supposed to have female protagonists. However, in 2014, Hascoët said the next chapter of the game wouldn’t let players choose a female avatar, because “it was really a lot of extra production work” to add women’s animations and clothing to the game. Later games shrank the roles of women in their stories, minimizing female protagonists and moving men to the lead roles in their games.

#MeToo Publicity Leads to Shakeup in Ubisoft Leadership

By going public with their #MeToo stories, Ubisoft employees seem to have accomplished what internal sexual misconduct complaints could not. Chief Executive Officer Yves Guillemot has announced extensive changes — even removing “golden child” Serge Hascoët — in response to the negative publicity. Guillemot issued a statement announcing several changes in Ubisoft leadership saying:

“Ubisoft has fallen short in its obligation to guarantee a safe and inclusive workplace environment for its employees. . . . This is unacceptable, as toxic behaviors are in direct contrast to values on which I have never compromised—and never will. I am committed to implementing profound changes across the company to improve and strengthen our workplace culture.”

In addition to the chief creative officer, Ubisoft is removing the heads of HR and the Canadian studios. These departures could signal a change in the way the company responds to sexual misconduct in their workplace, and sexism within their products. In the past, employees were simply told to find a way to work with their harassers or look elsewhere. Now Ubisoft is demanding that its leaders “manage their teams with the utmost respect” and “drive the change we need” for the company.

Whether the new Ubisoft leadership — notably still all men — can drive systemic change in the workplace remains to be seen, but for the employees whose complaints had been ignored, the departure of Hascoët and others shows that the company may be open to listening to them after all.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know what it feels like when sexual misconduct claims get swept under the rug in favor of executives’ family and friends. If you have been sexually harassed by a manager or supervisor who seems untouchable, we can help. We will meet with you and review your options when your employer chooses to believe their friends over your complaints. Contact us today to schedule a free consultation.

Sex Abuse Lawsuits Send Boy Scouts to Bankruptcy Court

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Thousands of former boy scouts nationwide have come forward to say they were sexually abused as children by their scout leaders, counselors, and others within the organization. There have been so many complaints and sex abuse lawsuits that they forced the Boy Scouts to file for Chapter 11 bankruptcy protection. Depending on where you live, that could be good news for victims or a ticking clock on when you can file your claims.

Boy Scouts of America’s “Red Flag List” Show Decades Long History of Child Sex Abuse

The Boy Scouts of America (BSA or Boy Scouts) have been around for more than 100 years. Founded in 1916, they have stood for patriotism, courage, and self-reliance for generations of boys, young men, and starting in 2017, girls too. However, for nearly as long as there have been boy scouts, there have been pedophiles looking to take advantage of the organization to get access to those boys.

In 1935, the New York Times published an article revealing that the organization had a “red flag list” of scout leaders who had been removed from the organization for moral reasons. The physical cards in the Boy Scouts’ two catalogs of volunteers (one alphabetical and one geographical), were marked with red labels when problems were brought to their attention, so that the organization could look carefully at the volunteers’ records if they ever resurfaced in another location.

However, as the organization grew, the Boy Scouts consolidated those red cards into a “red flag list” of 2,919 men who had been dismissed from their positions as scout leaders.  Scout troops were supposed to consult that Red Flag List as part of volunteers’ background checks. However, even in 1935, the BSA were aware that, “Sometimes, in spite of these rigid requirements, a moral degenerate may slip through.” That is due in part to the fact that the list itself is strictly confidential. It was not released until 2012, when the Oregon Supreme Court ordered that the records be made public.

Nearly 2000 Former Scouts File Sex Abuse Lawsuits

Last year, a group called Abused in Scouting gathered up nearly 2,000 people with complaints of child sex abuse against Boy Scouts of America — including at least one from every state. Their ages range from 8 to 93.

And then New York passed the Child Victims Act. Effective August 14, 2019, this law lengthened the state’s statute of limitations for child sex abuse and pornography cases. It also created a one-year window for victims of abuse to file no matter how old their claim was. The Abused in Scouting group and other sex abuse attorneys have used this law and others like it in New Jersey, California, and Arizona to file their claims all at once and put pressure in the Boy Scouts to settle quickly without expensive lawsuits.

Boy Scouts of America Files for Chapter 11 Bankruptcy

That pressure appears to have worked. On February 17, 2020, the Boy Scouts of America filed for Chapter 11 bankruptcy protections in the United States Bankruptcy Court, District of Delaware. The petition will allow the organization to continue operations while reorganizing to consolidate and pay off its debts. According to the BSA’s initial filings, the national organization (without the local Boy Scouts councils) had more than $1 billion in assets, and liabilities valued between $500 and $1 billion. That included money owed to former employees, and 25 law firms representing child sex abuse victims from across the country.

What the BSA’s Bankruptcy Means for Child Sex Abuse Victims

By filing for bankruptcy, the BSA has put a temporary stop (called an automatic stay) to all lawsuits against it. Instead, as part of the bankruptcy process, the Boy Scouts are asking for the court to set aside a single pool of money — a compensation trust fund — to pay off anyone with claims based on activity before the filing date. This compensation trust fund could be paid for by selling off BSA property, including campgrounds and hiking trails. To qualify for a part of the trust fund, former scouts and other victims will need to be ready to file their claims within a short window of opportunity, or their claim will be barred forever.

For child sex abuse victims in states with strict statutes of limitations, this bankruptcy settlement could provide an opportunity to get compensation when it is too late to file a claim in their state courts. However, for New York residents, this bankruptcy process threatens to cut short the legislative grace period. It will force everyone, even those whose cases just recently happened, to file their claims now, rather than waiting until they are emotionally ready to tell their stories.

At Eisenberg & Baum, LLP, team of sexual abuse attorneys know how to navigate compensation trust funds to help you protect your claims for child sexual abuse. We can speak with you and your family from our headquarters in the heart of New York City, or conference with you remotely, to help you get compensation for your scout leader’s sexual misconduct. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

“Sex-Plus” Discrimination During COVID-19 Layoffs

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The government response to the novel Coronavirus COVID-19 shut down businesses across the country. While most states are now reopening, many employees are finding that the COVID-19 layoffs weren’t as temporary as they thought. Older women in particular are finding that the overlap between continued restrictions on women-led industries and fears around Coronavirus vulnerabilities are creating fertile ground for “sex-plus” discrimination, leaving them without work even as the country reopens for business.

Older Women Face the Highest Numbers of COVID-19 Layoffs

April 2020 was undisputedly the worst month in recorded history for U.S. employment. In response to the COVID-19 pandemic, entire states shut down and approximately 20 million people lost their jobs. The unemployment rate in the United States skyrocketed from 4.4% to 14.7%, the highest level since the Great Depression. While those numbers have recovered slightly as the country reopened, nationwide unemployment was still at 11.1% in June 2020.

The force of the Coronavirus shutdown wasn’t felt with equal weight by everyone, though. According to an AARP Employment Data Digest, older women (over age 55) were hit the hardest, with an unemployment rate of 15.5% in April 2020. There were a variety of factors that converged to make older women most vulnerable to COVID-19 layoffs.

COVID-19 Shutdowns Hit Women-Led Industries Hardest

First, unlike in earlier recessions, this year’s shutdowns hit the service industry first. High-contact workplaces like retail stores, beauty salons, and restaurants — where women make up the majority of employees — were shut down first and have the strictest regulations when reopening. While factories hurried to retrofit and reopen and offices pushed staff into remote work, these industries simply closed. That left women more likely to face temporary layoffs, and made it more likely that those terminations would become permanent as small service industry businesses made difficult decisions about when and whether they would reopen.

Older Adults Face Layoffs Because of COVID-19 Vulnerabilities and Assumptions

Second, early studies revealed that older adults were at higher risk of complications if infected with COVID-19. This combined with existing assumptions that older workers cost more in health benefits and would be less able to adapt to the technology needed to work remotely than their younger counterparts. When companies sought to trim their workforce and stay open, older workers were more likely to be the ones laid off.

When these two factors overlapped, older women found themselves in the crosshairs. It is just one example of what happens when intersectional discrimination weighs most heavily on workers who fall into more than one minority category.

“Sex-Plus” Discrimination and Intersectionality in the Workplace

There are a variety of state and federal laws that protect against discriminatory employment practices. The most famous of these is Title VII of the 1964 Civil Rights Act. This federal law prohibits discrimination based on an employee’s inherent traits:

  • Race or color
  • Sex or gender (including pregnancy, gender identity, and sexual orientation)
  • National origin
  • Religion

Any time an employee is targeted because of one or more of those traits, she or he can file a complaint with the Equal Employment Opportunity Commission (EEOC). Intersectional employment actions give an employee a “sex-plus” discrimination claim based on the overlap of discriminatory conduct. For example, someone fired because she was a black woman would have an EEOC claim even if she wouldn’t have faced the same discrimination as either a white woman or a black man. Intersectional discrimination has been protected since at 1980, at least when both traits fall under Title VII’s umbrella of protection.

But Title VII doesn’t shield against age discrimination. At the federal level, ageism is the target of a separate law, the Age Discrimination in Employment Act (ADEA). Even though this law has been in effect nearly as long as Title VII, it has different rules about when and how older workers can bring claims against their employers. In some parts of the country, those differences can create problems for older employees claiming sex-plus discrimination based on a combination of sex and age.

New York Human Rights Act Brings Intersectional Discrimination Claims Under One Umbrella

There is good news for those older women facing COVID-19 layoffs closer to home. The New York State Human Rights Law doesn’t draw the same distinctions between inherent traits as the federal law. At the state level age, sex, race, and many other traits are all protected under the same statute, with the same procedures. This makes it easier to pursue sex-plus discrimination claims and raise issues of intersectionality under the state law.

The law also protects against a wider variety of ageism. While the ADEA only applies to employees over age 40, and then only for discrimination based on assumptions that they are “too old” to do the job, the New York law protects against anyone age 18 or older from any employment decision made because of the individual’s age. That means that New York employees facing sex-plus discrimination in the wake of the Coronavirus have access to broader protections than their counterparts in other parts of the country.

At Eisenberg & Baum, LLP, our gender discrimination attorneys look beyond sexism to consider a wide variety of intersectional discrimination. We want to help our clients be compensated for the harm they suffered from sex-plus discrimination and layoffs based on false assumptions about their vulnerability to COVID-19, gender roles, or technical abilities related to age. From our office in the heart of New York City, we will review all aspects of your employment history to identify discrimination, and help you consider all your options under state and federal law. Contact us today to schedule a consultation with one of our attorneys.

Is Dating Violence on Campus Gender Discrimination?

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Every year, high school and college students across the country become the victims of sexual abuse and misconduct through dating violence. When domestic violence happens between intimate partners it can cause real emotional abuse, physical harm, and all too often ends in death. But does that make dating violence on campus gender discrimination? A new federal policy says it is.

Campus Title IX Enforcement Leaves Fatal Gaps in Dating Violence Case

Student track star Lauren McCluskey had reported her boyfriend Melvin Rowland to the University of Utah campus police several times for dating violence, according to her parents’ lawsuit. She had reported that he was harassing her, threatening to release revenge porn after she ended their relationship on October 9, 2018. However, according to the lawsuit, the investigators assigned to the case did not take those threats seriously, even though Rowland was more than 15 years older than her and a registered sex offender on parole.

According to one local news article, two of Lauren’s friends had also gone to the university’s dorm staff saying they were afraid he was controlling her, talked about guns, and often stayed in her dorm room. In spite of the reports, no work happened on her case, allegedly because the detective assigned to the case was off on vacation. By the time he came back, McCluskey was dead. She had been shot by Rowland outside her dorm on October 22. He later killed himself.

McCluskey’s parents sued the school saying that the campus police’s failure to respond was a violation of Title IX of the federal Civil Rights Act and state anti-discrimination laws. But the school says it wasn’t required to respond because Rowland wasn’t a student or employee of the school. There was also some question as to whether dating violence counts as gender discrimination under federal law.

Campus Investigations Under Title IX Shift with Politics

Until 2011, high schools and college campuses didn’t have much guidance on how to respond to reports of dating violence and sexual abuse happening on or around their campuses. Many assumed those behaviors were prohibited under federal law or state criminal codes, but enforcement was erratic. Then, the Obama administration sent out a “Dear Colleague” memo providing instructions on preventing gender discrimination and sexual harassment on campus and involving students. That standard included several protections for the victims of sexual assault and dating violence, including a lower standard of proof and prohibiting the use of face-to-face mediation that often perpetuates power dynamics in abusive relationships.

However, in November 2018, Education Secretary Betsy DeVos, a Trump appointee, rescinded that guidance. She issued new regulations narrowing the definition of sexual harassment, tightening reporting requirements, limiting investigations into off-campus behavior, and stripping many of the protections for victims. In announcing the regulations, DeVos claimed the changes were designed to balance the rights of victims and their accused perpetrators:

“Every survivor of sexual violence must be taken seriously, and every student accused of sexual misconduct must know that guilt is not predetermined. . . . We can, and must, condemn sexual violence and punish those who perpetrate it, while ensuring a fair grievance process. Those are not mutually exclusive ideas.”

However, these new rules created a gray area around the issue of dating violence. Under the 2018 regulations, Title IX only applies if the dating violence is “so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” Cari Simon, former director of the Congressional Victims’ Rights Caucus and Title IX lawyer told the New York Times that this narrower definition of sexual harassment was a deterrent to students reporting the danger:

“If we’re essentially saying to [] stalking and dating violence victims, ‘Sorry, this isn’t pervasive enough, severe enough or objectively offensive enough,’ they’re not going to come back.”

New Regulations Make Dating Violence on Campus Count as Gender Discrimination

In response to these concerns, DeVos’s Education Department has now issued another new rule, correcting some of the weaknesses created under the 2018 policy. These new rules specifically say that domestic violence, dating violence, and stalking are gender discrimination and trigger a school’s investigation obligations under Title IX. This supplements guidance specific to sexual assault.

Victims’ advocates are praising the new rule, saying it puts schools and universities on notice that they must take steps to train their staff and protect their students from harm on campus. Sage Carson, manager of Know Your IX, a victims’ rights advocacy group, told the New York Times:

“There’s still a lingering idea that dating violence is an interpersonal issue that two folks need to work on, something that just happens between men and women, rather than seeing it as a form of violence that has an impact on education.”

They would also help students like Lauren McCluskey and their parents when schools ignore their concerns. Ultimately, these tougher regulations could give victims advocates the tools they need to prevent more victims’ deaths when schools don’t take their reports of dating violence seriously.

At Eisenberg & Baum, LLP, we have a team of attorneys who know what to do when dating violence and sex abuse threaten students in high school or college. We work with students and parents to enforce their rights under Title IX as well as state and local laws, and will help you and your child and get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Union Accuses Airport Starbucks Franchise of Transgender Discrimination

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Transgender baristas in airports across the country are saying they face misgendering, the use of “dead names” and other transgender discrimination, all while wearing the logo of a popular progressive company: Starbucks. While the parent company set high standards for the treatment of LGBTQ and other minority workers, its franchisee, HMSHost, appears to be falling short of the mark. But is there anything the employees’ union can do about it?

Baristas Face Transgender Discrimination in Airport Starbucks

A number of baristas from airport Starbucks stores around the country are reporting that they are facing transgender discrimination by their managers up to the level of the franchise owners. Cora Noble-Bray, a barista at Portland International Airport said:

“I transitioned to a woman while working at Starbucks and while a lot of my coworkers picked up my new name and pronouns immediately, one lead in particular did not put any effort into changing. Being called by my old name and seeing it stay on my work schedule felt like my choice and my identity didn’t even matter to him or the company. The managers at HMSHost do not use my correct pronouns. They continually refer to me as he/him, even though I’m a trans woman… I’ve let them know what my new name is and the old name still shows up on my schedule. I can handle being misgendered by customers that I only see for two minutes. Our regular customers and airport employees have all been good about getting my new name and pronouns right. But when it’s my direct supervisor, it’s exhausting, and I genuinely dread coming in to work—so much so that I consider calling off and taking discipline. I never know when he’s going to say something. I feel like I always have to have my defenses up.”

Gigi Tolentino told a similar story of her time as a barista at the Honolulu International Airport:

“Within the first two years of working at HMSHost I was misgendered and discriminated against and it reached a point where enough is enough, it was when one of my managers ridiculed me in front of the passengers and coworkers by shouting out “sir, he’ll be right with you!” and pointing at me. She was laughing and smiling assuming that that was funny, but that moment was the most embarrassing moment of my life. At that moment I was embarrassed and insecure about me being a transgender woman. […] So I stood up for myself because I’m not going to let someone tell me I’m not valid as a human being.”

One manager is even reported to have said, “as long as she has a p***y I will call her a she” about a transgender male employee.

The complaints were part of a 20-page report by UNITE HERE, a labor union that represents 45,000 workers in the airport industry and 4,000 workers at licensed Starbucks stores nationwide. The report analyzed approximately 2,000 workers at 142 airport Starbucks stores and included surveys of over 300 workers. In addition to allegations of transgender discrimination, it called out findings that the surveyed employees:

  • Faced race-based pay discrimination with Black baristas earning $1.85 less than white baristas
  • Worked through Starbucks’ 2018 racial bias training shutdown
  • Face poverty and homelessness
  • Were not provided tuition assistance on a level that allowed them to attend college
  • Faced national origin discrimination in the form of being told to stop speaking their preferred language at work

Franchise Operator at Odds with Starbucks’ Policies for LGBTQ Workers

If seeing the words “transgender discrimination” and Starbucks in the same headline surprises you, you’re not alone. The Seattle-based coffee company is known for taking pro-employee positions on everything from equal pay to college enrollment. As it relates to the UNITE HERE report, Starbucks’ public statements promise:

  • 100% racial pay equity
  • Nationwide racial bias training that closed more than 8,000 stores in 2018
  • Policies that allow LGBTQ employees to use their preferred names on store documentation
  • Housing subsidies
  • 100% tuition coverage (with certain conditions)
  • Global commitments to hire 10,000 refugees by 2022

However, these public statements only apply to Starbucks’ corporate stores. The airport coffee shops like the one where Ms. Noble-Bray and Ms. Tolentino worked, are operated by a franchise owner, HMSHost. According to the UNITE HERE report, the franchisee is falling far short of Starbucks’ lofty goals. Gabriel Ocasio Mejias, a former HMSHost Starbucks barista at the Orlando International Airport, said:

“Starbucks corporate is very well known to be supportive of the LGBT communities… In this company, it’s the complete opposite. They suppress your uniqueness… It makes me kind of feel in a way that I’m going back into the closet, which is very unnerving to me.”

UNITE HERE has been trying to get HMSHost to address the transgender discrimination and other harmful practices happening in its franchise stores. However, HMSHost denies any discrimination is happening, and claims that the report is a “well-known tactic” to gain leverage and recruit new union members.

National Labor Relations Board Weakens Employees’ Power to Fight Discrimination in Franchise Companies

So far, UNITE HERE hasn’t been able to get Starbucks to weigh in on the dispute. That may have to do in part with changes to federal regulations regarding union workers in franchise businesses. Earlier this year, the National Labor Relations Board issued a new regulation that took effect on April 27, 2020. This regulation rolled back Obama-era protections for franchise workers and loosened the connection between a franchisor (like Starbucks) and the actions of its franchisee companies (like HMSHost).

Since 2015, franchising companies like McDonalds or Starbucks have been considered “joint employers” for workers at franchisee companies or contractors as long as they indirectly controlled employees’ work (such as directing franchisees to use a particular scheduling software). Under the new regulations, the parent company will not be liable for labor actions taken against employees of franchisees or contractors unless they have substantial, direct and immediate control over the employees. This includes control over employees:

  • Pay
  • Benefits
  • Hours
  • Hiring
  • Firing
  • Supervision
  • Scheduling practices
  • Working conditions

This frees parent companies like Starbucks from legal risk when their franchisees fail to live up to corporate employment standards. In the case of HMSHost, some of the very policies UNITE HERE are challenging show that Starbucks does not exercise the level of control to be considered a joint employer under the NLRB’s new regulations. In fact, should Starbucks put pressure on HMSHost to change its policies, it could expose the parent company to more litigation, making doing the right thing a costly proposition.

At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys work with employees in unions in New York and across the country. We know how to make the most of union grievance processes, to protect LGBTQ and transgender workers and what your options are to get relief from your employer, even if you work for a franchise. Contact us to schedule a consultation at our office in New York City, or over the phone.