Secrecy Clouds Catholic Cardinal’s Sex Abuse Acquittal

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The victims of sex abuse often fight personal battles between the need for privacy and the desire to make their abusers’ actions known. But when secrecy is the rule of law, it can create questions about what really happened in court. The gag orders and confidentiality surrounding a Melbourne Catholic cardinal’s sex abuse acquittal are leaving even the victims wondering what happened.

A Note About International Law

This blog post discusses an Australian criminal conviction and later acquittal on appeal. While both Australia and U.S. law are derived from the British common law, there are centuries of court opinions and statutes that drive them apart. That means that sex abuse victims here in the U.S. will not necessarily face the same procedural issues, or be entitled to the same confidentiality, as those described here. Nor do the decisions of Australia’s top court make it more or less likely that U.S. cases will have similar outcomes.

Catholic Sex Abuse Victims Found Justice in a Guilty Verdict

For years, the Catholic Church has been accused of covering up sex abuse scandals worldwide. States and national governments have identified hundreds of priests and thousands of victims, many of whom have been unable to get relief because of the Church’s internal policies. The Church protected its own, denying the problem publicly, and creating difficult procedures for those who did come forward.

Now, governments and individuals have begun to hold the Church and its officials accountable. Still, most of the sex abuse cases have been against individual priests. While bishops (the regional managers of the Catholic Church) had been charged and convicted for their roles in the cover-ups, until late 2018, none had been convicted of personally perpetuating sex abuse.

That changed on December 14, 2018, when Cardinal George Pell, the Archbishop of Melbourne, was found guilty of sexual abuse. The charges related to sexual assault of two 13-year-old altar boys. The allegations said he grabbed one boy’s genitals and forced his penis into the mouth of another. With that guilty verdict, Pell became the highest-ranking member of the Roman Catholic church to be convicted. He was also responsible for handling the Vatican’s financial response to sex abuse allegations against Australian priests. The charges against him began a wave of additional charges against cardinals and other officials in the highest levels of the Church.

Australia’s Top Court Hands Catholic Cardinal an Acquittal

But then, in April 2020, that conviction disappeared. Australia’s highest court reversed the conviction, saying that the jury ignored “compounding improbabilities” based on the conflicting testimony of the primary accuser and other witnesses. Here in the United States, juries and fact-finding judges are given the benefit of the doubt when it comes to weighing the credibility of conflicting witness testimonies. Unless a jury’s decision doesn’t match the evidence presented at trial, the appeals courts will leave it’s decision alone. (There may be other grounds for appeal based on procedural or legal issues.)

In this case, however, the Australian high court said the jurors put too much faith in the main sex abuse victim’s testimony and failed to adequately consider the “unchallenged evidence” from other witnesses. Specifically, the judges’ order seems to suggest that the prosecutor failed to prove the priest would have had time to commit the sexual assaults when he would have been too busy following a Sunday Mass. Because the judges believed the jury had made those mistakes, it reversed the guilty verdict, handing the Catholic Cardinal a Sex Abuse Acquittal.

Privacy Laws for Child Victims and a Gag Order Create Shroud of Secrecy

Commentators and sex abuse advocates have complained that they could not evaluate the Australian court’s decision because the evidence in question is not publicly available. Australia has sexual abuse laws that automatically protect the identities of child victims. The accuser here was 13 at the time of the sexual assault, though he was an adult when he came forward in 2015. Australia also has strict confidentiality rules for all criminal cases, which are intended to protect juries from receiving prejudicial information while they deliberate.

These confidentiality laws layered with a strict “gag order” prohibiting journalists from publishing information about the court proceeding. This suppression order was so comprehensive, even reporting about the order itself. A previously published book, Cardinal: The Rise and Fall of George Pell, by journalist Louise Milligan, was pulled from bookstores rather than running the risk of contempt charges. The New York Times reported:

“A problem in this case is that the public mostly couldn’t watch,” said Jeremy Gans, a professor at Melbourne Law School who closely followed the trial. “Most of us didn’t know any of the details, and none of us have seen the complainant’s testimony.”

Advocates called for some way to review the transcript without identifying the sex abuse victim. Jason Bosland, a law professor at Melbourne University said:

“The only way the judicial branch of government is held accountable is through principle of open justice, and that requires that the public be given as much information as possible.”

Here in America, concerns over victims’ privacy must be balanced against the First Amendment freedom of the press. While judges may often issue gag orders or protect the identities of witnesses, court records, and transcripts are generally matters of public record unless specifically sealed by the court.

For some victims, this level of transparency can make coming forward intimidating. They risk damaging their own reputations by publicly testifying about the abuse inflicted upon them and cross-examination that often blames the victim and uses other, unrelated past acts to tarnish their credibility. However, for those who do come forward, publicly exposing their abuser is often almost as important as any financial damages that may be available. Many sex abuse victims say their primary goal in coming forward is making sure their abuser cannot take advantage of anyone else

That is why sex abuse victims need zealous advocates who can help them balance privacy and publicity. They need someone who can push for sealed records and gag orders where appropriate, but who are willing to take the matter public and pull back the shroud of secrecy that their abusers hide behind. At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the churches and other organizations who protect them. We can help you balance publicity and confidentiality and receive the compensation you deserve. Contact us today to schedule a free consultation.

Could Productivity Apps Give Bosses Keys to Online Sexual Harassment?

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How much personal information do you want your bosses to have about your home life? Thousands of New York residents are working from home as a result of the Coronavirus, but could their computers be opening them up to unwanted sexual advances? As more employers turn to productivity apps to monitor remote workers, could sexual harassment take on a new virtual form?

Employers Turn to Productivity Apps to Monitor Remote Workers

The nationwide response to COVID-19 has caused as many people as possible to work from home to reduce their risk of exposure. While essential workers, medical professionals, cooks, grocery clerks, and others have been working on the front lines, many employers with office workers have suddenly discovered that they can work from home, rather than being laid off.

However, employers aren’t simply trusting that their employees are really working while they are on the clock. Demand is surging for software to monitor employees and their productivity. These apps are not new. Wall Street firms have been using them for years, often without giving their employees much say in the matter. However, the coronavirus outbreak has turned them into a hot commodity. One such program, Hubstaff, reported that its monthly users have tripled since March.

As one New York Times reporter soon learned, these productivity apps often pick up more than even employers intended. In one month of using Hubstaff’s productivity app, reporter Adam Satariano and his editor, Pui-Wing Tam quickly found the app got a little too close for comfort:

“After three weeks of digital monitoring, the future of work surveillance seemed to both of us to be overly intrusive. As she put it, ‘Ick.’”

Employees clock in to the app on their work devices. Every few minutes, the app:

  • Takes screenshots of websites visited
  • Notes which documents have been opened
  • Tracks social media sites visited
  • Maps where the employee goes through GPS on a mobile device
  • Screenshots conference calls with other employees

Satariano says:

“The technology raises thorny privacy questions about where employers draw the line between maintaining productivity from a homebound work force and creepy surveillance.”

Shared Use Devices Give Employees Glimpses of Employees’ Personal Lives

However, not everything the productivity app captured was work related. Satariano related one occasion when he had not logged out of the app and it captured him participating in an internet exercise class. This raised concerns for him about what would happen if he had used his work computer to view medical documents or financial information.

“I trust Pui-Wing, but the monitoring systems have few safeguards to prevent abuse, and they rely on managers exercising judgment and restraint.”

That lack of safeguards makes the productivity app a tool for managers and bosses looking for ways to manipulate their employees. A stray email or even an advertisement could give a boss key information about an employee’s personal life and expose that employee to discrimination or online sexual harassment. Here’s a hypothetical example.

How Productivity Tracking Apps Could Turn Into Sexual Harassment

Let’s assume that Alice is a newly home-based worker for a company that has just begun using Hubstaff. She doesn’t have a company-assigned laptop, so she has been using her personal computer for work. Her boss, Bradley, requires her to install Hubstaff on that computer and to log in and out each day.

In the course of the day, Alice opens her personal email during lunch. She receives an email from a clothing company about a lingerie sale. Curious, she clicks. Now, the search engines and ad targeting algorithms know she’s looking for bras. When Alice logs back in to work, the targeted ads keep showing her women’s underwear. In an office setting this might be slightly embarrassing, but the chance a manager would see the misplaced ads would be minor. However, because Alice’s company is using a productivity app, everything Alice does on her computer is captured and presented to her manager for review.

When Bradley goes over Alice’s Hubstaff report, he can see the ads even though Alice was logged out while she was shopping online. Bradley threatens to report Alice for looking at indecent pictures on company time. He says that unless she agrees to an intimate video conference call he will send the pictures of bras to his boss and recommend disciplinary action.

Responding to Sexual Harassment of Remote Workers

This kind of quid pro quo sexual arrangement — where Bradley demanded sexual favors from Alice to avoid negative employment actions — falls clearly in the category of sexual harassment. Other productivity apps that use a computer’s webcam could also result in sexual harassment claims based on stalking or unwanted surveillance. However, many employers won’t have taken the time to develop strong anti-harassment policies for their newly remote workers. If an employer fails to respond to claims that a manager is using the company’s productivity app for sexual purposes, it could open the company up to a complaint with the Equal Employment Opportunity Commission (EEOC), the New York State Human Rights Commission, or even in federal or state court.

However, sometimes it doesn’t have to go that far. The current working climate means that many employers are making adjustments on the fly. They may be more receptive to constructive criticism about their new work-from-home policies than if an employee was trying to challenge an established way of doing things in the office. This can work in favor of the employee who doesn’t want to lose their job just for filing a complaint.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment discrimination cases, including those involving remote workers. We know when to file a claim with the EEOC and how to make the New York State Human Rights Law work for work-from-home employees. We also know that sometimes a well-placed letter or phone call can get employees the relief they need. Contact us to schedule a consultation at our office in New York City, or over the phone.

Southern Baptist Convention Ejects Church Over Sex Offender Pastor

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Earlier this year, the Southern Baptist Convention, the largest Protestant denomination in the country, expelled a small church in Texas because its pastor was a known sex offender. This was the first action taken under the denomination’s new sex abuse protocols. But advocates say it isn’t enough to respond to the wave of complaints against evangelical pastors and churches in Texas and across the country.

Evangelical Families Speak Out About Sex Abuse by Pastors

Last year, in the midst of a host of complaints about sex abuse in the Catholic Church, one Evangelical family was saying “Us Too.” Christi Bragg and her family went to the New York Times seeking help after her daughter (now an adult) reported that a church associate children’s minister had sexually assaulted her at a church camp.

The Braggs attended one of the most popular Southern Baptist churches in the country, Village Church. While they were members, in 2012, the Braggs’ daughter, age 11 at the time, attended a summer camp hosted by the Village Church. She said she woke in her cabin to find her undergarments pulled down and youth minister Matthew Tonne sitting on her bed touching her. A light turned on in the bathroom nearby and the man left.

As a result of the abuse, the Braggs’ daughter suffered emotional trauma, nightmares, and depression. She had gone through hours of counseling and medical treatments. At one point she even considered suicide, but decided not to kill herself so her sisters would not find her dead.

The Braggs’ daughter first reported the incident to her mother in February 2018. She immediately filed a police report and alerted the church. However, neither the church nor the Southern Baptist denomination had clear rules for how to deal with sex abuse allegations. While the criminal investigation continued, Ms. Bragg fought to get the church to recognize what had happened to her daughter and their family, or even talk to her.

Membership Covenant Stands Between Victims and the Courts

The Village Church and others within the Southern Baptist denomination, require their members to sign a Membership Covenant — a contract promising to follow the rules of the church. The Membership Covenant the Braggs signed promised that they would “practice complete chastity” except within a heterosexual marriage, and “diligently strive for unity and peace within the church.” It also included a binding arbitration clause.

That clause said that members could not sue the church. Instead, they had to go through mediation and arbitration to resolve any disputes. But when the Braggs attempted to mediate their concerns, no pastors participated, and no resolution was reached. The Bragg daughter (now an adult) has filed a lawsuit despite the arbitration clause, but its outcome is uncertain.

In the meantime, the church had removed Mr. Tonne, not for sex abuse, but a claimed alcohol problem. According to the church, the problem had been resolved because Tonne was no longer an employee. He had been indicted and criminal charges were pending against him, but the church leaders did not even tell the congregation why.

Southern Baptist Convention Adopts Sex Abuse Policy

The Braggs are far from alone in their struggle. In early 2019, the Houston Chronicle published an investigation naming 400 Southern Baptist leaders who had been accused of sexual misconduct or crimes against more than 700 victims since 1998.  Still, sex abuse was seen as a Catholic problem. It was not until June 2019, at the Southern Baptist Convention annual meeting, that the denomination finally addressed the problem in a concerted way.

With protestors and advocates picketing outside the venue, the denomination leaders passed two policy changes. They voted to create a centralized committee to evaluate allegations and amend their constitution to allow churches to be expelled if sex abuse allegations were substantiated (proven). The denomination’s president, J.D. Greear, called for the new committee to investigate 10 churches for how they had handled sex abuse allegations against them. Seven of those 10 churches were cleared within days.

Church Ejected Over Sex Offender Pastor Isn’t Enough, Advocates Say

But the policy was not entirely fruitless. In February 2020, one year after the Houston Chronicle report was published, church leaders voted to eject Ranchland Heights Baptist Church from the Souther Baptist Convention.

The church was removed after hiring pastor Phillip Rutledge. In 2003, before working for the church, Rutledge was convicted of sexually assaulting two girls, ages 11 and 12. As a result of that conviction, Rutledge is a lifelong registered sex offender. His status is publicly accessible on the Texas Department of Public Safety’s website. Local church officials had previously admitted that they knew of Rutledge’s conviction when they hired him. A church deacon said the leaders believed that God had forgiven him.

The church’s ejection was the first step in enforcing the Southern Baptist Convention’s new sex abuse policy. But victims’ advocates say it is not enough.

“I’m grateful to see this step being taken,” Rachael Denhollander, who advises the denomination in its sex abuse study group, said of Tuesday’s decision. “At the same time, this is only the smallest of first steps and the beginning of what is needed to make our churches places of safety and refuge.”

In fact, the denomination has taken the position it cannot even enforce employment standards against sex offenders. It says that because each member church is its own legal entity, the denomination does not hire or fire pastors. The denomination also refuses to disclose how many complaints the review committee has received, perpetuating the same culture of secrecy the Braggs fought against at the Village Church.

It is not enough for a single church to be removed because of a bad hiring decision. Church members turn to their pastors and their denominations for support during their darkest times. When those pastors are the ones committing the sex abuse against their church’s children, they and the denominations that support thm must be held accountable for their actions.

At Eisenberg & Baum, LLP, we have a team of attorneys who know how to fight back against sex abuse and sexual harassment. Led by Attorney Adriana Alcalde, our sexual abuse attorneys will stand beside you, even against your church or denomination. We will work hard to help you navigate the courts, and any Membership Agreements, to make sure your family receives the justice you deserve. Contact us today to schedule a free consultation.

Victoria’s Secret “Angels” Face Misogyny, Bullying, and Sexual Harassment

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Working as a lingerie model naturally exposes a woman to certain amounts of sexual energy. However, no employee should be forced to submit to sexual harassment just because of the nature of their job. Find out how the Victoria’s Secret “Angels” have lived through misogyny, bullying, and other forms of sexual harassment within the company and what its board of directors is doing about it.

Culture of Sexuality and Misogyny Guides Hiring

Across the country, women and men have been pushing for a broader definition of beauty on the covers of magazines, in catalogs, and on the runway. Companies have been adopting plus-sized models and those with athletic body types from a diverse range of ethic backgrounds in an effort to break out of certain stereotypes about modeling.

But those changes haven’t made it Victoria’s Secret. The lingerie giant is a subsidiary of L Brands, founded by billionaire Leslie Wexner. He and his long-time chief marketing officer Ed Razek, have resisted the urge to feminize the brand. While its competitors began including a wide range of women in their advertising, Victoria’s Secret filmed ads based on the stereotypical male fantasy, with scantily clad models, helicopters, motorcycles, and even fiery explosions.

And that same misogyny affected the company’s hiring choices as well. A New York Times report describes 6 current and former executives of the company sought to change its “porny” image. Instead, in 2018, Razek rebuffed their efforts, driving some out of the company. When interviewed about that year’s fashion show, he told Vogue:

“So it’s like, why don’t you do [size] 50? Why don’t you do 60? Why don’t you do 24? It’s like, why doesn’t your show do this? Shouldn’t you have transsexuals in the show? No. No, I don’t think we should. Well, why not? Because the show is a fantasy.”

False Recruitment by a Famous Sexual Criminal

That sexual fantasy mindset made its way beyond the runway as well. Models and prospective models told the New York Times that they had been misled to believe they were being recruited for a model, when really it was a setup for sexual harassment and abuse.

Wexner was close friends with Jeffrey Epstein, who was charged with sex trafficking in 2019 and sexual assault of children as young as 14 by New York state prosecutors. Epstein had served as Wexner’s personal financial manager. According to the New York Times, he had used that position to pose as a recruiter for Victoria Secret and lure young women into posing for him between 1995 and 2006. He is said to have invited them into auditions, at least two of which ended in sexual assault. The New York indictment against Epstein contained this statement by an unnamed prospective Victoria’s Secret “angel”:

“I had spent all of my savings getting Victoria’s Secret lingerie to prepare for what I thought would be my audition. . . . But instead it seemed like a casting call for prostitution. I felt like I was in hell.”

Unpaid Pornography Shoots as a Condition of Employment

Epstein wasn’t the only one taking advantage of the tough competition for models hoping to land a contract as a Victoria’s Secret angel. Razek himself is said to have exuded “toxic masculinity.” Models reported him approaching women in their underwear and asking for their numbers, urging them to sit on his lap, and even touching them over their underwear during fittings. Several witnesses report him saying (in regard to whether network television would allow the broadcast of a particular set of lingerie):

“‘Forget the panties,’ he declared, according to three people who were there and a fourth who was told about it. The bigger question, he said, was whether the TV network would let Ms. Hadid walk ‘down the runway with those perfect titties.’ (One witness remembered Mr. Razek using the word ‘breasts,’ not ‘titties.’)”

However, perhaps most disconcerting were allegations that Victoria’s Secret models were compelled to participate in nude photo shoots, often without pay, for fear that they would be cut from the runway. Some of these pornographic images were then published in a coffee-table book selling for $1800 to $3600. This made even some L Brands executives uncomfortable and concerned that the women were pressured to take their clothes off.

Changes at L Brands Follow Years of Sexual Harassment Claims

Many of these incidents and others resulted in complaints to HR. Some even resulted in sexual harassment settlements. However, until recently, the “Angels” seemed to feel that the company did not take their concerns seriously. Casey Crowe Taylor, a former public relations employee, told the New York Times:

“What was most alarming to me, as someone who was always raised as an independent woman, was just how ingrained this behavior was. . . . This abuse was just laughed off and accepted as normal. It was almost like brainwashing. And anyone who tried to do anything about it wasn’t just ignored. They were punished.”

In response to Jeff Epstein’s criminal indictment, the L Brands board of directors hired a law firm, Davis Polk & Wardell to conduct “a thorough review” of his involvement with the company. However, Davis Polk wasn’t an independent investigator of the company’s actions. Wexner’s wife Abigail had previously worked at the firm and one longtime partner was a former L Brands board member. Epstein’s subsequent suicide while in jail awaiting trial, that investigation seemed not to come to much of a conclusion.

Then Mr. Razek stepped down in August 2019. Wexner has announced he is exploring plans to retire and sell Victoria’s Secrets. Since L Brands is a publicly traded company, that has shifted more power to the company’s board of directors. Spokeswoman Tammy Roberts Myers said that the company “is intensely focused” on corporate governance and workplace and compliance practices. She said the board’s independent directors  were “fully committed to continuous improvement and complete accountability.” However, what that will mean to the models and employees who had been the targets of bullying, misogyny and sexual harassment at the company remains to be seen.

At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys believe that every employee has the right to be free from sexual harassment at work, even models. We know how to use federal and state anti-discrimination laws to get you the protection and compensation you need from misogyny, bullying, and sexual harassment in the workplace. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help you plan a strategy to put an end to sexual harassment at work. Contact Eisenberg & Baum, LLP, today to talk to an attorney.

Are Misgendered Pronouns Gender Discrimination at Work?

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For transgender and nonbinary workers, a supervisor using the right name and pronoun can be a sign of affirmation and respect. But what if coworkers or supervisors refuse to refer to you in your preferred way? Are misgendered pronouns gender discrimination at work?

States Offer Gender-Netural IDs, No-Questions-Asked Gender Changes

Before 2017, every U.S. resident’s driver’s license or state ID said one or two things: M or F, Male or Female. Many states required complicated procedures, and even proof of surgery before transgender individuals would be allowed to change that M to F or F to M. But ideas of gender identity are changing quickly.

In July 2017, Oregon became the first state to issue gender X IDs. Washington DC followed soon after. Three years later, 14 jurisdictions have non-binary or gender-neutral options for their residents’ driver’s licenses or state IDs:

  • Oregon
  • Washington DC
  • Arkansas
  • Minnesota
  • Maine
  • Utah
  • Colorado
  • California
  • Indiana
  • Nevada
  • Vermont
  • Maryland
  • New Hampshire
  • Hawaii

In addition, several states have begun to allow residents to change the gender markers on their IDs simply by signing an affidavit, rather than providing invasive doctors notes and proof of medical procedures.

These movements are allowing transgender and non-binary individuals more freedom in adjusting their legal identity to match their personal gender identity. Trans* activists see this as a great step forward, and a signal that society is beginning to accept alternative genders.

Universities Use Stickers, Records to Let Students Identify Gender Pronouns

Following these changes to state laws, the first wave of non-gendered students are beginning to enroll in universities across the country. Respected institutions like Harvard often refer to students as Mr. or Ms. The addition of non-gendered students have put wrinkles into the system and revealed deeply held assumptions by many professors.

When Diego Garcia Blum started graduate school at Harvard last fall, he took his school-issued name placard and added his proper pronouns with a marker. He did that out of respect for another graduate student, Raven Graf, who is nonbinary and uses the pronouns they/them. Harvard’s John F. Kennedy School of Government, where Mr. Blum and Mx. Graf were enrolled has responded by providing clear stickers for the Winter 2020 semester with four pronoun options: He/Him, She/Her, They/Them, Ze/Hir.

Other universities have taken similar steps. New York University allows students to update class rosters with their preferred pronouns. The University of Minnesota enacted a pronoun policy allowing students to specify a name and gender that do not match their legal identities.

But these transitions have not always been smooth. Many pronoun protocols are voluntary “best practices” and some professors have chosen not to follow them.

Are Misgendered Pronouns Gender Discrimination at Work?

When this same behavior makes its way to the workplace, it can make everyday life difficult for transgender and nonbinary employees trying to express their true gender identity at work. When coworkers and supervisors ignore your requests and insist on using misgendered pronouns, it can quickly make you feel exposed and even unsafe.

Title VII and Misgendered Pronouns

Misgendered pronouns may be insulting, but it is not clear that on their own they would count as gender discrimination at work under Title VII of the federal civil rights act. Title VII does not explicitly protect against discrimination based on sexual orientation or gender identity. While many courts have said the protections apply, others have said they do not. The issue is currently pending before the U.S. Supreme Court. However, in that case the transgender worker was fired when she came out as a woman. It is not clear whether simply using the wrong pronouns could be so “severe” or “pervasive” that it creates a hostile work environment under federal law.

New York City Protects Transgender Workers

Even if misgendered pronouns are not gender discrimination under federal law, New York City’s Transgender Rights Law and New York State’s Human Rights Law may offer additional protections. The Transgender Rights Law explicitly requires employers to use the name, pronouns, and title a worker self-identifies, whether that matches their legal ID or not.

Gender-neutral IDs and nonbinary pronouns are going to be increasingly common among employees in New York City, statewide, and across the country. When employers are unable to keep up with the changes, it could result in gender identity discrimination and serious harm to nonbinary workers. At Eisenberg & Baum, we understand the impact misgendered pronouns can have on transgender and nonbinary employees. From our office in New York City, our employment discrimination attorneys help gender-nonconforming workers negotiate with employers and protect their rights. 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 gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against misgendered pronouns and gender identity discrimination.

New York Human Rights Law Protects Small Business Employees

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Small businesses employ millions of American workers. Without the administrative oversight of larger companies, these businesses may not give their employees the same protections against discrimination and sexual harassment. The smallest of the small fit through gaps in federal anti-discrimination laws, leaving their employees without legal recourse. But now, the New York Human Rights Law is closing those gaps for New York companies, protecting small business employees no matter how few there are on the payrolls.

America Depends on Small Business Employees

According to the Census Bureau’s Annual Survey of Entrepreneurs, 89% of all employers have less than 20 workers on the payroll. They make up nearly 17% of all employees, and that number is growing. In 2018, the Small Business Association reported that:

“Firms employing fewer than 20 employees experienced the largest gains, adding 1.1 million net jobs.”

In spite of their numbers, small business employees often have a hard time enforcing their right to a discrimination-free and harassment-free workplace. Small businesses often don’t have non-discrimination policies or dedicated HR departments to respond to discrimination complaints. With a more intimate working environment, these employees may also find it harder to file those complaints out of fear of retaliation. This is especially true in the smallest of small businesses, where federal anti-discrimination laws may not even apply.

Federal Anti-Discrimination Laws Don’t Protect All Small-Business Employees

Title VII of the federal Civil Rights Act prevents discrimination and harassment based on sex, gender, race, and many other inherent traits. Employers may not discriminate in hiring, firing, promotions, pay, or any other employment-related decision. They also are required to respond to employee concerns about harassment in the workplace.

But not all employers are created equal under Title VII. The federal law defines “employer” as “an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. . .” Any business with less than 15 employees, or with a primarily seasonal workforce may not qualify.

The Equal Pay Act has a similar limitation. It, and the Fair Labor Standards Act it references, defines an employer as an enterprise with not less than $500,000 in gross sales or business done. Many startups and small businesses fall well below that income threshold, which means the employees of those businesses may not be eligible to file suit when they are paid less for the same work because of their gender.

New York Human Rights Law Applies to All Businesses With Even One Employee

Federal law may not cover the smallest of small businesses, but as of February 8, 2020, workers in New York may still be protected. The New York State Human Rights Law has long applied to much smaller businesses — covering employees with 4 or more employees, rather than 15. Last year, New York Governor Andrew Cuomo signed a law, effective February 8, 2020, expanding that coverage to include all New York employees, no matter how small. It also includes other workers who don’t technically qualify as “employees”, such as independent contractors, vendors, consultants, and service providers.

NYSHRL Gives Small Business Employees a Tool For Relief from Discrimination and Harassment

These changes mean that small business employees will be able to get relief, even if the company they work for isn’t set up to address sexual harassment or discrimination claims. Starting in 2019, the NYSHRL required all employers to prepare sexual harassment prevention policies and provide training that includes explaining how to report abuse when it happens. However, many small businesses may not have come into compliance. Even where a policy exists, it may be difficult for small business employees to lodge complaints when the person doing the discrimination or harassment is the owner of the company and their direct boss.

Small business employees can work with an experienced New York workplace discrimination attorney to prepare and file a complaint with the New York State Human Rights Commission, or in state court. These complaints can help facilitate changes in policy and enforcement within the small business, and can compensate workers for the discrimination they have faced.

At Eisenberg and Baum, LLP, our New York City-based sexual harassment attorneys know how hard it can be to get relief if you are a small business employee. We’ve seen how startups and inexperienced business owners sometimes treat their workers. We know how to use the New York State Human Rights Law to protect rights, and what you can do if your employer isn’t keeping up with the state’s requirements. We will help you negotiate with your employer, file the necessary administrative claims, and represent you in court. Contact us to schedule a consultation.

Federal #MeToo Complaints Push Government Agencies to Confront Sexual Harassment

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A year after the U.S. Commission on Civil Rights began its investigation of federal #MeToo complaints, the agency has finally issued recommendations for federal employers and Congress. The report calls for the federal government to act as a “model employer”. But it also shows just how far short governmental agencies fall from that mark.

U.S. Federal Government Investigates #MeToo Trends

On May 9, 2019, the United States Commission on Civil Rights hosted a public briefing named “Federal Me Too: Examining Sexual Harassment in Government Workplaces.” The briefing invited academics, legal experts, victims advocates, and federal employees with personal experience to testify about the government’s response to sexual harassment in the workplace. This briefing spurred further investigation, including a review of EEOC complaints and internal administrative procedures at the EEOC and in two representative federal agencies: the State Department and the National Aeronautics and Space Administration (NASA).

On April 1, 2019, nearly a year after hearing testimony, the U.S. Commission on Civil Rights released its report. It included an assessment of federal policies and procedures as they exist today, and recommendations for the future. The general consensus was there is a lot that can be improved. Catherine E. Lhamon, Chair of the commission, said in a press release:

“The federal government’s longstanding and persisting failure to take adequate steps necessary to address this form of serious workplace misconduct is especially concerning given its dual role as the largest employer in the United States and as the principal enforcer of federal civil rights protections. We urge all agencies and Congress to take up the Commission’s recommendations immediately to protect federal workers and serve as the model employer government should be in our nation.”

Federal #MeToo Complaints are On the Rise

The Commission reviewed workplace sexual harassment complaints within the federal government from 2016-2018. During that period, 1 in 7 federal employees experienced sexually harassing behaviors. And those numbers are on the rise. Federal employees filed 2,257 sexual harassment complaints with the Equal Employment Opportunity Commission (EEOC) during fiscal years 2015-2018. Before getting to that step, they first had to complete an internal Equal Employment Opportunity claims process (EEO Complaint). Those claims numbered:

  • 6,990 in 2016
  • 7,560 in 2017
  • 8,418 in 2018

Even those numbers likely represent only a fraction of the actual sexual harassment taking place within federal government workplaces. The EEOC estimates that three out of four sexual harassment victims never tell a supervisor or file a complaint, many due to fear of retaliation.

Sexual Harassment is About Power, Not Sex

One of the key points made by the Commission is that federal agencies and the general public continue to misunderstand the reason sexual harassment occurs.

“[S]exual harassment is not about sex or sexual attraction: instead, sexual harassment is ultimately about power. . . . ‘[T]he bottom line is that harassment is more about upholding gendered status and identity than it is about expressing sexual desire or sexuality. Harassment provides a way for some men to monopolize prized work roles and to maintain a superior masculine position and sense of self.’ . . . ‘[W]here unwanted sexual misconduct occurs, it is typically a telltale sign of broader patterns of discrimination and inequality at work such as sex segregation and gender stereotyping.’”

This was supported by the commission’s findings of characteristics that made sexual harassment more likely to occur:

  • Differentiated roles and duties based on sex stereotypes
  • Gender imbalances in leadership and managerial positions
  • Isolated, remote, or decentralized workplaces

Federal EEO Processes Make Reporting Sexual Harassment Difficult

The Commission noted that federal employees have a particularly difficult time preserving their sexual harassment claims and getting compensated for the physical and psychological harm done to them. It noted that the internal EEO processes across different agencies were “unduly complex” and vulnerable to conflicts of interests as departments acted as both fact finder and defendant. This was especially true in the State Department, where claims by foreign nationals or locally employed staff working abroad were handled locally and “often not addressed adequately.” The Commission also noted that the short, 45-day reporting window and “confusing time restrictions” caused many employees to “unwittingly forfeit their right to bring formal claims at all.” Together, these policies put federal workers at a distinct disadvantage, compared to their private-sector counterparts.

The Commission’s Recommendations

The United States Commission on Civil Rights made several direct recommendations for the specific agencies evaluated, the EEOC acting in oversight, and to Congress for legal changes needed to protect federal employees:

  • The Office of Personnel Management send out model employer sexual harassment policies and practices that protect the rights of all workers
  • Federal agencies should use department-wide uniform penalties for all disciplinary actions
  • Perpetrators should be banned from receiving promotions or performance awards
  • Perpetrators should not be reassigned to other divisions
  • Employees should complete bystander intervention training
  • Agencies should implement mandatory anti-harassment trainings
  • Non-disclosure clauses in discrimination settlements should be closely scrutinized
  • Congress should enact laws to protect federal government contractors and interns from sexual harassment (many do not qualify as employees under the current law)
  • A federal ombudsperson should be empowered to investigate sexual harassment claims in cases where the existing structure creates conflicts of interest
  • Additional funds should be assigned to the EEOC for proactive and preventative measures
  • The EEOC should collect and report intersectional data on sexual harassment and racial and other forms of discrimination
  • Existing anti-harassment laws should be strictly enforced to address “the culture of sexual harassment and misogyny in grant-receiving research institutions.”
  • State Department workplaces globally should have zero tolerance for sexual harassment and retaliation, and workers should have access to fair access to the claims process

Many of these recommendations would take legislative change. Others might be implemented at the agency level. However, there is little motivation for the federal government to move quickly in response to the report. Federal employees facing sexual harassment in the meantime will still need to navigate the complex and often intimidating EEO procedures to protect their rights and preserve their claims.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment discrimination cases, in the private sector and the federal government. We know how to meet the EEO procedural requirements and file a claim with the EEOC. We are ready and able to work for federal employees whose claims might otherwise be lost. Contact us to schedule a consultation at our office in New York City, or over the phone.

Start-Up Tech Company Uses Facial Recognition to Find Victims of Child Sex Abuse

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What if a software start-up company said it could identify the victim pictured in child pornography and warn them about criminal charges? Would it be the new best tool for law enforcement or an invasion of victims’ privacy? It turns out, the technology to use facial recognition to find victims of child sex abuse is already out there and being used across the country. Now, state legislators and law enforcement officers debating the ethics and legality of such a program.

What is Clearview AI’s Facial Recognition Software, and How is It Used?

Clearview AI is a start-up tech company that developed an app that allows law enforcement officers to use a database of over 3 billion images as part of their investigations into child exploitative materials. Users — who are exclusively law enforcement officers and private security firms at this time — can upload a cropped image of a person’s face and receive back identifying information including where they live or frequently visit based on where else that face is found in the background of other people’s photos. In its marketing materials, Clearview AI says it builds its database by scraping images from publicly available sources, including news sites, mugshots, and social media sites like Facebook, Twitter, Venmo, and YouTube.

However, the start-up tech company is also strangely secretive. A New York Times investigator found that its publicly posted business address doesn’t exist, and no one answers the company’s phone or email. The company also actively interfered with the New York Times investigation, calling law enforcement officers who searched her picture and telling them not to talk to her.

Despite the secrecy, the FBI, state, and local law enforcement offices across the country are currently using this software to close old and cold cases. They said the app was far better at identifying a sex abuse offender than other existing databases because they can use partial facial images (such as when the person was wearing a hat or glasses) rather than full-face images. The app then provides identifying information about the alleged perpetrator, such as information about where else the person’s image pops up online.

Facial Recognition Turns to Identifying Victims, Not Perpetrators

Originally, Clearview AI and other facial recognition technologies were used to identify perpetrators of sexual misconduct and other crimes. However, more recently, the tool has been turned toward identifying the victims pictured in known perpetrators’ imagery. For example, in one Indiana case, detectives uploaded the cropped facial images of 21 victims of the same sexual offender into the app. Of the 21 victims, they received 14 IDs for victims as young as 13. Charles Cohen, the retired chief of the Indiana State Police told the New York TImes:

“These were kids or young women, and we wanted to be able to find them to tell them we had arrested this guy and see if they wanted to make victim statements.”

Making those victim impact statements can have a substantial effect on the length of a convicted criminal’s sentence. It can also sometimes lead to the victims receiving restitution for the harm caused by the perpetrator’s actions including to their mental and physical health. However, repeated sharing of the same child exploitive imagery means that many times the same individual may face reliving the trauma of their experiences every time their face comes up in another search.

Facial Recognition Raises Privacy Concerns Among Advocates

The use of the Clearview AI facial recognition software to identify victims has raised significant concerns about those victims’ privacy. While the app is currently only sold to U.S. law enforcement and private security firms, there is no regulation in place to stop a company like Clearview AI from making similar software for public use. When asked about privacy, New York Times reporter Kashmir Hill said:

“We’ve been building the technology to make this possible for years now. Facebook building this huge database of our photos with our names attached to it, advances in image recognition and search technologies, it all led us here. But there’s been no accompanying regulation or rules around how the technology should be used. There’s no real law or regulation that makes this illegal. The scraping seems to be O.K. We don’t have a big ban on facial recognition. We don’t need to give consent for people to process our faces. And so in terms of holding this tool back, we’re just relying on the moral compasses of the companies that are making this technology and on the thoughtfulness of people like Hoan Tan-That [the owner of Clearview AI].”

Privacy advocates are concerned that the app itself has not been submitted to a technical audit by an independent company. The Clearview AI database stores sensitive data about child victims of sexual abuse and exploitation, never deleting them unless an administrator adjusts a user’s settings to purge the data.

State Legislators and Lawsuits Try to Ban Facial Recognition by Law Enforcement

The social media companies have their own concerns about the software. Many have issued cease and desist letters to Clearview AI directing them to stop scraping images from their websites and to dispose of databases already collected. There is also a class-action lawsuit underway in Illinois based on that state’s strong biometric privacy laws that prohibit the use of a person’s faceprint without their consent.

The New Jersey attorney general banned state officers from using the app and asked the state’s Division of Criminal Justice to investigate its use in that state. In support of his decision, Mr. Grewal said:

“I’m not categorically opposed to using any of these types of tools or technologies that make it easier for us to solve crimes, and to catch child predators or other dangerous criminals. . . . But we need to have a full understanding of what is happening here and ensure there are appropriate safeguards.”

Here in New York, the issue has gone to the legislature. On January 27, 2020, State Senator Brad Hoylman (D/WF-Manhattan), the chair of the New York State Senate Judiciary Committee announced he was introducing a bill to prohibit law enforcement from using facial recognition and other biometric surveillance technology based on concerns over privacy and residents’ civil liberties. He said in a statement:

“Facial recognition technology threatens to end every New Yorker’s ability to walk down the street anonymously. In the wrong hands, this technology presents a chilling threat to our privacy and civil liberties – especially when evidence shows this technology is less accurate when used on people of color, and transgender, non-binary and non-conforming people. New York must take action to regulate this increasingly pervasive and dangerously powerful technology, before it’s too late.”

There is a delicate balance to be had between safety and privacy. The line between effective law enforcement and an invasion of privacy can sometimes be extraordinarily thin. What side of that line facial recognition software like Clearview AI falls onto remains to be seen. However these new technologies are used, the victims identified through them need to know they have advocates standing up for their best interests, against the perpetrators who commit the crimes, and the companies that incorrectly use their images.

At Eisenberg & Baum, our sexual abuse attorneys stand beside child victims and their families against their abusers and companies that would improperly use or store their images. We know how to use all the tools the law provides to protect their rights and their identity. Contact us today to schedule a free consultation.

Is Zoombombing Illegal Sexual Harassment?

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Millions of American workers have found themselves suddenly working from home in the wake of COVID-19. Zoom and other video conferencing applications are a crucial part of that unexpected transition. However, vulnerabilities in the app’s security have exposed students, employees and others to pornography, hate speech, and other offensive imagery. This raises the question: is Zoombombing illegal sexual harassment?

What is Zoombombing?

Imagine you are 15 minutes into a meeting with your team at work. You are all working from home to avoid spreading Coronavirus, so you are all participating through Zoom or another web-based video conferencing application. It’s a big meeting, with lots of people on the call. Suddenly, an anonymous user shares their screen, exposing all the other participants to graphic pornography and hurtful racial slurs.

This is “zoombombing.” A term coined in the early days of America’s pandemic response, zoombombing is a new form of harassment where uninvited users hijack video calls and spread hurtful words, music, and imagery. Zoombombers have hit everywhere, from an Alcoholics Anonymous meeting in New York, to a city commission’s meeting in a small city in Michigan. It has affected schools and companies across the country, and quickly became so severe that the FBI issued warnings against it.

Zoombombing takes advantage of security vulnerabilities within the app, including a lack of encryption, privacy controls, or even passwords. Often, the Zoombombers obtained links to private conference calls online, through social media. Zoom has hurried to close these gaps in its security and educate users on options available within the app. However, many of the same built in “features” that allow teams to collaborate and work efficiently also create opportunities for racial and sexual harassment within the virtual workplace.

Is Zoombombing Illegal Sexual Harassment?

The FBI’s warning said that teleconference hijacking was a cyber-crime and seemed to suggest that racially motivated statements and images might be hate speech. But what about when the imagery is sexual? Could Zoombombing rise to the level of illegal sexual harassment?

Remember, under Title VII of the federal Civil Rights Act, unwanted sexual comments, jokes, and imagery can amount to sexual harassment if they are so serious or happen so often that they create a hostile work environment where a reasonable person would feel uncomfortable working.

State and local laws, including the New York Human Rights Act also protect against unwanted sexual jokes, imagery, verbal harassment, or requests for sexual favors. When employees, contractors, or even customers cross the line, employers are required to take reasonable steps to respond to employee complaints and stop the sexual harassment.

This means it is appropriate for employees who are offended by the conduct to complain to their supervisors or HR departments. Federal law requires employers to respond to such requests. Where the Zoombomber is another employee that could include disciplinary action or even termination of the offending employee. But what about when the Zoombombing comes from outside the organization?

Can Employers Stop Unwanted Sexual Imagery on Video Conference Calls?

Zoom and its competitors are hurrying to put security measures in place to make it harder for outsiders to crash your company’s video conference. However, many of these efforts will only help if your employer implements them for your virtual workspace. Employers who receive complaints of sexual imagery or comments in their video conferences should:

  • Make video conferences private by invitation only
  • Set passwords for entry that are distributed separately from the video conference links
  • Enable waiting rooms and empower meeting facilitators to control who enters the meeting
  • Disable screen share, virtual backgrounds and annotation features for attendees
  • Mute participants except during open discussions
  • Establish and enforce company policies about customers’ language and imagery during discovery calls
  • Offer training to meeting hosts about how to quickly mute, remove, and ban disruptive users from video calls

Zoombombing has gotten significant media attention since Coronavirus has caused employees to work from home. But that doesn’t mean your employer is even aware of the problem. In cases like this where technology is changing faster than policies, often a well-placed complaint can result in change and resolve what would otherwise become a hostile work environment. If your employer refuses to take reasonable steps to prevent Zoombombing, it could mean you are facing illegal sexual harassment, and you may have the right to take the matter to the federal Equal Employment Opportunity Commission, the New York Human Rights Commission, or file a lawsuit in court.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all different forms of sexual harassment — even online. We know when to file a claim and how to work with employers trying to navigate uncharted territory of virtual workspaces. We can help you advocate for anti-harassment policies, or file a claim when your complaints go unheard. Contact us to schedule a consultation at our office in New York City, or over the phone.

Asian American Essential Workers Face COVID-19 Racial Discrimination

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In New York and across America, Asian American workers are facing racial discrimination because of fear related to the novel Coronavirus COVID-19. As the response to the pandemic goes on, employers will need to step up their responses to xenophobia to protect their employees from harassment and discrimination at work.

Asian Americans Face Epidemic of Racial Discrimination Due to COVID-19 Responses

Dr. Edward Chew is the head of a large Manhattan hospital’s emergency department. Understandably, he has been busy fighting the coronavirus. However, as he works hard daily to help people survive the outbreak, he has been noticing their reactions to him have changed. They try to cover their nose and mouth with their shirts as he gets close. One time, when he went to Home Depot to buy masks, face shields, and Tyvek suits for his hospital staff, he was harassed by three men in their 20s who followed him into the parking lot. He is not alone.

Across the country, Asian American workers, citizens, and permanent residents have faced harassment and even physical assaults because of their national origin. A writer for the New Yorker was cursed out while taking out her trash. A 16-year-old student was bullied and attacked by schoolmates. Another New Yorker was kicked and punched at a subway station.

Dr. Russell Jeung, Ph.D., of San Francisco State University reports that between February 9 and March 7, 2020, 471 cases of racial discrimination made their way into the America’s News database. He called these figures “just the tip of the iceberg” because only the most serious cases would be reported by the media. Dr. Jeung helped set up a website in six Asian languages to gather first-hand accounts. It had 150 reports of harassment in just a week. Benny Lou, founder of NextShark, an Asian-American news website told the New York Times:

“We’ve never received this many news tips about racism against Asians. . . . It’s crazy. My staff is pulling double duty just to keep up.”

Calling the Coronavirus the “Chinese Virus” Creates Xenophobia and Puts Asian Americans at Risk

This intense racial discrimination is likely the result of early descriptions of COVID-19 as the “Chinese Virus”. Most notably, President Donald Trump repeatedly referred to the disease as “the China virus” or “the Chinese virus” until approximately March 24, 2020. He justified doing so to combat conspiracy theories saying the US military had brought the virus to China. While President Trump has since announced he was pulling back from associating the coronavirus with China, he also denied that his words were racist:

“It’s not racist at all, no, not at all. It comes from China, that’s why. I want to be accurate.”

However, the World Health Organization (WHO) has recommended against naming conventions that convey blame for years. In 2015, the WHO issued best practices for naming new human infectious diseases that warned against “unintended negative impacts by stigmatizing certain communities or economic sectors.” Dr. Keiji Fukuda, Assistant Director-General for Health Security said:

“This may seem like a trivial issue to some, but disease names really do matter to the people who are directly affected. We’ve seen certain disease names provoke a backlash against members of particular religious or ethnic communities, create unjustified barriers to travel, commerce and trade, and trigger needless slaughtering of food animals. This can have serious consequences for peoples’ lives and livelihoods.”

Dr. Chew and the over 2 million Asian Americans working in healthcare, transportation, service industries, and other essential workers are feeling that backlash now.

Employers Must Cut Short Racial Discrimination Due to COVID-19

The Asian Pacific American Labor Alliance, AFL-CIO, is turning to employers to cut these xenophobic reactions short. Teresa Ellis, a national executive board member for the organization, compared the racial discrimination Asian Americans are facing today to the accounts of discrimination and xenophobia targetting Muslim, Arab, and Middle Eastern Americans in the wake of the September 11, 2001 terrorist attacks. Lori Ecker, a member of the American Bar Association Section of Labor and Employment Law Council told the ABA Journal:

“I think what is going on now closely parallels that. . . . In our figuring out how we are going to emerge from this crisis, employers need to be sensitive to the issues that their Asian American employees are facing or could face and take some proactive steps to prevent that from happening like it did 19 years ago.”

To help cut short the COVID-19 racial discrimination against Asian Americans, the APALA has issued guidance, recommending that employers:

  • Let employees and customers know that people of Asian descent are not more likely to get or spread COVID-19
  • Be prepared to respond to clients and patients refusing service by Asian American employees in a way that does not cut their hours or discriminate against them in their work
  • Perform employee trainings that reaffirm the dignity of Asian American workers
  • Provide bystander intervention trainings that teach employees what to do when they witness racial discrimination
  • Take firm stances against outbreak-related jokes or harassment based on race or national origin
  • Post signs supporting Asian American workers in the workplace or business

Help for the Victims of COVID-19 Racial Discrimination

For those whose employers don’t take APALA’s advice, the Equal Employment Opportunity Commission and private employment lawyers can help. The EEOC has promised it is “rising to the challenges before us” to advance equal employment in the workplace and enforce anti-discrimination laws. At Eisenberg & Baum, LLP, our workplace discrimination attorneys are ready to hold them to that promise. If you have been the victim of COVID-19 based racial discrimination at work, we can help you negotiate with your employer to make changes in your workplace, or prepare and file an EEOC complaint on your behalf. Contact us to schedule a consultation over the phone and get our New York based employment attorneys working for you.