Firm’s Statement Regarding Inequality

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Our firm is committed to standing up for racial justice. We see racism all around us and recent events show us that we, as a nation have so much work to do to reach a place where everyone is treated equally regardless of the color of their skin. Racism and racial discrimination are very real issues that our firm deals with every day on behalf of our clients. We will continue to represent, fight, and advocate for individuals who are discriminated against or harassed based upon their race or ethnicity or any other protected class. We will also continue to listen to our clients, friends and neighbors of color to understand their experience so that we can support the black community even more effectively moving forward. To commemorate our commitment and to stand in solidarity with the fight against racism, our firm will observe Juneteenth as a firm holiday and close on June 19. Our firm is planning ways to further support the fight against racism in our community.

Sex Abuse Victims’ Testimonies Lead to Harvey Weinstein’s Guilty Verdict

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On February 24, 2020, former Hollywood producer Harvey Weinstein was found guilty of two felony sex crimes by a New York State Supreme Court jury. This guilty verdict is a milestone in the #MeToo movement, and comes thanks to the hard work and testimony by his sex abuse victims. (Trigger Warning: This blog post contains descriptions of sexual assault.)

Sex Assault Case Puts #MeToo Movement on Trial

In 2017, several actresses came together to talk to reporters. They told stories about how, as aspiring actors, they had been taken advantage of by one man, Harvey Weinstein. They said the big-name Hollywood producer had used his power and privilege to convince, coerce, and sometimes force these young hopefuls into sexual encounters they didn’t want.

After more than 2 years, and dozens more women coming forward to add their stories, the #MeToo movement finally resulted in the New York state prosecutors filing criminal charges against Weinstein. But they weren’t as inclusive as many had hoped. Despite police interviewing more than 70 witnesses and investigating at least 14 sexual assault allegations, the case ultimately came down to two sex abuse victims’ sexual abuse claims, and one charge of predatory sexual assault representing Weinstein’s pattern of sexually offensive behavior. In the words of activist Tarana Burke:

“Most of us will never see the inside of the courtroom, but these women got to take the stand, look him in the eye and say, ‘You did this to me.’”

The small scope of the trial is the result of the decades of time and thousands of miles separating the #MeToo survivors and their claims. Most of the actresses who came forward spoke of incidents that happened outside of New York’s jurisdiction. Many others’ allegations were simply too old to meet the New York criminal statute of limitations. To some, that meant the #MeToo movement hung on the ability of a handful of sex assault survivors to tell their story.

Sex Abuse Victims Testify to Decades of Rape and Sexual Misconduct

The first sex abuse victim to take the stand was Annabella Sciorra, of “The Sopranos”. She was one of those survivors whose stories predated the statute of limitations, but prosecutors asked her to testify to show Weinstein’s pattern of sexual assault and abuse. She described how her relationship with Harvey Weinstein evolved since the early 1990s when she was an up-and-coming actress and he was a young producer. She said he would sometimes make “inappropriate” gestures, like giving her a box of chocolate penises. Then, in late 1993 or early 1994, Weinstein forced himself into her Manhattan apartment and raped her. When she confronted him weeks later, she testified he threatened her, saying, “This remains between you and I.” She never contacted the police, believing what had happened didn’t qualify as rape. But the attack left emotional scars, causing her to drink heavily and cut herself. She reported that Weinstein continued to stalk her for several years after that. In 1997, she testified that he showed up at her hotel room in his underwear, carrying baby oil and a videotape.

The jury also heard from sex abuse victim Mimi Haleyi, a production assistant on “Project Runway” who testified that Weinstein had forced oral sex on her in his TriBeCa apartment in 2006, and from another confidential victim, who was an aspiring actress in 2013 when Weinstein raped her in a Manhattan hotel room. Three other women also told their stories of sexual misconduct to help establish that Weinstein engaged in a pattern of sexual predation. Lucia Evans was originally included as a victim and intended to testify, but her accusations of sexual assault against Weinstein were later dropped from the case. When asked about the trial, she said:

“I am so impressed by the women who participated in the criminal case up through the verdict. Witnessing firsthand many of the obstacles that stood in their way only deepens my appreciation of their courage. I truly wish I was given the opportunity to stand next to them, to see my case through to the end.”

Sexual Assault Survivors Face Victim-Blaming Cross-Examination

As a powerful public figure, Harvey Weinstein had hired an equally powerful set of criminal defense attorneys. Their job was to poke holes in the victims’ stories and create doubt in the juror’s minds. For Ms. Sciorra, that cross-examination quickly turned to claims that she was lying and victim blaming. The defense attorneys pointed out:

  • She could not remember the exact date of the assault
  • Her memory of certain details was unclear
  • She opened her apartment door without first finding out who is on the other side
  • She didn’t run
  • She didn’t see a doctor or call the police after the incident

Weinstein’s attorney Damon Cheronis also claimed that the two victims in the case were actually in consensual relationships with the man to further their careers, saying “The truth is, there was nothing nonconsensual about it.”

These tactics are common in sexual abuse cases and take advantage behaviors common to many trauma survivors. Fatima Goss Graves, President of the National Women’s Law Center explained:

“What defense attorneys do is create a narrative that only one type of person could experience sexual violence, and that there is only one type of response. They discount behaviors that are actually really typical in an effort to blame victims.”

For example, traumatic memories are often stored in disjointed, non-linear ways in the victims’ brains. This means that they are often unable to remember important details, or say specifically when and where the incident occurred. They also exploit the power imbalance between victim and abuser, calling out victims for not coming forward sooner, or for not immediately cutting their abusers out of their lives when, in fact, they often feel powerless to do either.

What is Next for Harvey Weinstein

After all the witnesses had testified, the jury was asked to deliberate on three charges: two counts of criminal sexual misconduct, and one count of being a sexual predator. They found Weinstein guilty of the two individual felony sex crimes, but not guilty of the charge based on his pattern of behavior against multiple victimes. Weinstein was taken to jail (after a brief visit to a hospital because of chest pains). He will remain there until he can be sentenced. He could face up to 29 years in prison. Weinstein’s attorneys have already promised to appeal the decision.

Weinstein also still faces similar charges in Los Angeles, California. That indictment was announced on the first day of the New York trial and will likely take time to come to trial. The Weinstein legal team may also be more inclined to settle now that he has already been convicted once.

Sex assault victims need strong advocacy, not just by prosecutors, but by private sex abuse attorneys who understand the cost of seeing a sexual assault claim to its conclusion. At Eisenberg & Baum, LLP, our experienced sexual abuse attorneys know how to do just that. 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.

Victims Feel Left Out of Methodist Church’s Response to Sexual Harassment Charges

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The Catholic Church isn’t the only religious organization dealing with sexual harassment charges against their religious leaders. But when the United Methodist Church said it had reached a “Just Resolution” with one of the denomination’s most visible pastors, the victims of his sexual misconduct said they felt left out.

Victims Raise Sexual Harassment Charges Against Progressive Methodist Pastor

In November 2018, four women came forward to file sexual harassment complaints with the United Methodist Church against one man: Rev. Donald “Bud” Heckman. Heckman was a well-known progressive pastor from the West Ohio Conference. Famous for his work on inter-faith projects and diversity projects, Heckman had even served on a White House Interreligious Cooperation Task Force during the Obama administration.

But at the same time, Heckman is alleged to have been engaging in unethical and illegal treatment of women he worked with, including his ex-wife. The charges filed with the United Methodist Church alleged the following:

Inter-Faith Conference Leads to Unwelcome Sexual Advances

Megan Anderson, a former student-journalist for The Interfaith Observer met Heckman at the Parliament of World Religions in 2015 in Salt Lake City. Heckman served on the publication’s advisory board at the time. Anderson says he urged her to come to his hotel room then invited her onto his bed and groped her. She left immediately. However, she says Heckman sent her explicit text messages for months afterward expressing sexual fantasies and a desire to marry her.

Professional Promises and False Claims of Relationships

Emily Farthing’s claims against Heckman were similar. She met him at the 2014 North American Interfaith Network Conference, where she was receiving a young adult scholar award. She says Heckman sought her out offering professional advice and grant-writing assistance to help her get into divinity school. He even paid for her room. Then the sexually explicit texts started. At one point Farthing says Heckman came into her room in his underwear and sat on her bed. Eventually she says she stood up to him, refusing his desire to sleep with her. However, she says she learned later that he had been telling other women they had dated and that he helped her through a dark time.

Threats of Deportation After Dating Relationship Ends

K.R., who uses her initials out of fear of retaliation, says she also met Heckman through her interfaith work. She dated him in 2011 and early 2012, when she learned he was still married (he had told her he was divorced), and says she discovered him with another woman. A few months later, he started emailing, calling, and coming to her apartment. According to her charges, “It was a combination of ‘I love you’ and ‘If you leave me I will do XYZ to you.’” K.M. who was in the U.S. on a work visa, says Heckman even threatened to prevent her from staying in the United States.

K.R. filed a report with the New York Police Department in July 2012. Heckman was arrested and pleaded guilty to non-criminal disorderly conduct. He was required to undergo counseling and comply with a two-year protection order.

Christian Morality Standards and an Ex-Wife’s Charges

The fourth woman in the United Methodist Church’s charges was Heckman’s ex-wife, Laura Heckman. She said she and Bud had been married for 20 years when he moved out in 2011. Then she learned about his affairs with other women, including K.R. Laura Heckman’s complaints are not sexual harassment as far as secular courts are concerned. However, the complaint raised concerns about the pastor’s violation of church morality rules against adultery and sexual behavior outside of marriage.

United Methodist Church Settles Complaints in Just Resolution

The West Ohio Conference of the United Methodist Church received the women’s complaints and reviewed them. Bishop Gregory V. Palmer issued a statement:

 “The West Ohio Conference takes seriously any allegation of a chargeable offense against a pastor.”

The charges included sexual harassment, sexual misconduct, and being uncelibate when single and unfaithful while married in violation of church rules. Heckman was suspended from active ministry pending a church trial– an internal process that could have caused him to lose his position, and his credentials as a pastor — originally scheduled for early December 2019. On December 23, 2019, the West Ohio Conference issued a statement saying the church had reached a Just Resolution with Heckman and that no church trial would occur.

That Just Resolution of the women’s complaints said that Heckman would “retire under complaint.” He would lose his appointment and would no longer perform ministerial activities within the United Methodist Church. Heckman also “acknowledged his regret in not being faithful to the ministerial covenant” by performing immoral acts, harassment, and misconduct. Bishop Palmer called the complaint an “arduous process, a burden, especially for the complainants.” He said:

“I deeply regret the harm that has been caused to any person due to an act of sexual misconduct by a pastor. There is no excuse. . . . It is my fervent prayer that all who have been impacted by this matter may continue to heal.”

Sexual Harassment Victims Feel Left Out of Church’s “Just Resolution”

But this resolution to the women’s complaints didn’t feel “just” to them. Megan Anderson told the New York Times:

“I really don’t feel like we were heard. . . . He’s getting a slap on the hand. It leaves victims out of the picture.”

When Heckman’s trial was postponed and then cancelled in favor of the Just Resolution, the accusers say they were left out of the church’s investigative process. They were not required to approve the agreement, and in fact, never signed it. Laura Heckman said:

“It was an opportunity, that’s the saddest part. What I hoped was that the church would take a stand and be an advocate for women, to demonstrate that they are honored and protected. . . . We were completely isolated and left out of the conversation.”

Victims Need Advocates to Make Their Voices Heard

The United Methodist Church isn’t the only organization with an internal process that removes sexual harassment victims from the investigation. Often, after a complainant comes forward with sexual misconduct charges, they are pushed to the side while investigators and Human Resources officers investigate and settle the claims on their own. The victims’ only recourse if they feel the settlement is not enough is to file sexual harassment charges with the Equal Employment Opportunity Commission (EEOC) or their state anti-discrimination agency. However, as with the women in Heckman’s case, many victims of sexual harassment don’t come forward until long after the deadline to file an EEOC complaint has passed. Others, like Laura Heckman, have sexual misconduct claims that don’t fit into the definition of discrimination on a state or federal level.

That is why it is so important for the victims of sexual harassment and abuse to talk to someone early — in the weeks or months after the misconduct, if possible — to protect their claims. At Eisenberg & Baum, LLP, we have sexual harassment and sex abuse attorneys who know how to approach these claims from all sides, from employment-based charges with the EEOC, to civil lawsuits, to criminal charges. We can help you decide whether to rely on your organization’s internal processes, or go public by filing a federal claim or lawsuit. If you are facing sexual harassment within your religious organization, we can help. Contact Eisenberg & Baum, LLP, today to talk to an attorney.

What to Do About Defamation Lawsuits Filed in Response to Sexual Misconduct Claims

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Coming forward with sexual misconduct claims requires courage and conviction. The idea that your abuser may turn the tables and take you to court may be enough to threaten your confidence. But if your story is true, even a defamation lawsuit filed in response to your sexual misconduct claims can work in your favor and help you get the recovery you need.

#MeToo Abusers Use Defamation Lawsuits to Silence Accusers

Since 2017, the victims of sexual abuse and misconduct have taken to social media to tell their stories as part of the #MeToo movement. This social media hashtag and the media reports surrounding it have cast spotlights on men and women in positions of power who used their influence to coerce, or even force their victims into sexual positions. Across the country, these accused men and women have been removed from their board positions, been fired or forced to resign, and in some cases, faced criminal charges as a result of their sexual misconduct.

The victims of this sexual misconduct have filed charges with the New York Human Rights Commission, the Equal Employment Opportunity Commission (EEOC), and in state and federal court, seeking compensation for the emotional, financial, and in some cases physical damage caused by the sexual abuse. Some of those accused as part of the #MeToo movement have gone to court themselves, filing defamation lawsuits in response to their accusers’ sexual misconduct claims, putting these survivors on the defensive and forcing them to prove that their stories are true.

Defamation and Reputational Harm

Defamation is a civil lawsuit saying that the defendant’s false statements cause the plaintiff reputational harm and make it harder for the person to work or live in their community. In New York, when a plaintiff sues for libel (written defamation) or slander (spoken defamation), he or she must show:

  • The defendant made a statement (aloud or in writing)
  • That statement was false
  • The statement was published or made to a third person without the privilege or authority to do so
  • In doing so the defendant at least negligently ignored the falsity of the statement
  • Which caused harm to the plaintiff

When the person has taken steps to become a public figure — including politicians, media personalities, and some business leaders — that person’s status makes it harder for them to prove the statements were made with “actual malice” and not just mistakenly false.

Even with their status as public figures, some of those accused have filed defamation claims against their past victims as a way to beat them to the courthouse, frame the issue in a way that hurts the survivor, and ideally intimidate them into withdrawing their claims. They will use any variation in the story or apparent gaps as a loophole to claim the statement was false, and their reputation was harmed as a result. To defend defamation lawsuits filed in response to sexual misconduct claims, you and your sexual abuse attorney should work to establish the truth of your claim and that yours was the reputation that was harmed.

Sexual Misconduct Survivors Turn Defamation Cases in Their Favor

Not every defamation claim hurts sexual misconduct survivors, though. Some victims of long-ago sexual assault have used this type of case as a last effort to bring their abusers to justice. Until New York lengthened the statute of limitations for filing sex abuse lawsuits, many victims of sexual misconduct came forward years after the alleged incidents, only to find they had missed their chance to prove their case.

However, when public disclosures of sexual misconduct resulted in personal attacks against survivors, those attacks often were grounds for their own defamation lawsuits. For example, when Ashley Judd came forward with accusations against Harvey Weinstein, her allegations were too old to file a lawsuit in California (where the acts occurred). But then, Director Peter Jackson said that he had removed her from a casting list for his now-famous “Lord of the Rings” films after Weinstein told him Judd was a “nightmare” to work with and should be avoided “at all costs.” Since this was the first Judd had learned of the false statements (slander), she was able to file a defamation lawsuit saying that Weinstein’s words had caused her reputational harm and damaged her career.

Defamation vs Retaliation Claims in Sexual Misconduct Cases

Judd’s defamation lawsuit also closely mirrors the retaliation claims many employees file against their employers after their retaliation claims result in the company firing the wrong person. Title VII and state anti-discrimination laws include protections against this kind of retaliation, giving employees a separate complaint any time a claim results in an “adverse employment action”.

But sexual misconduct isn’t limited to the workplace. When abusers use defamation lawsuits as a form of retaliation, the battle for the truth takes place in the courtroom, rather than the EEOC office. That’s when survivors and their attorneys need to be diligent and hold to their claims. By refusing to back down, these survivors can show the courts, and the public, the truth of their claims, turning the cases back against their abusers, and finally get the compensation they deserve.

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 when your abuser tries to use a defamation lawsuit to silence you. We’ll help you get the justice and compensation you deserve. Contact us today to schedule a free consultation.

EEOC Sexual Harassment Claims Drop in 2019

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Every year, thousands of women and men file claims with the U.S. Equal Employment Opportunity Commission (EEOC) for discrimination and sexual harassment at work. Surprisingly, last year the number of sexual harassment claims dropped, even though there was a nationwide push for women to come forward about sexual abuse and misconduct. Find out why that may be.

EEOC Releases 2019 Enforcement and Litigation Data

The EEOC has released its data for claims filed and enforcement actions in 2019. Here’s the breakdown:

  • Total Charges: 72,675
  • Retaliation: 39,110 (53.8%)
  • Disability: 24,238 (33.4%)
  • Race: 23,976 (33%)
  • Sex: 23,532 (32.4%)
  • Age: 15,573 (21.4%)
  • National Origin: 009 (9.6%)
  • Religion: 2,725 (3.7%)
  • Color: 3,415 (4.7%)
  • Equal Pay Act: 1,117 (1.5%)
  • Genetic Information: 209 (0.3%)

Many complaints raised more than one charge, or coupled discrimination and harassment complaints with retaliation by their employer after the discrimination was reported. These numbers do not include charges filed with state or local agencies such as the New York Human Rights Commission.

Sexual harassment and gender discrimination accounted for nearly one third of all the national discrimination complaints under Title VII of the Civil Rights Act. This reflects the ongoing struggle for women workers to be treated the same as men in the workplace.

Total Claims, Sex Discrimination Charges Show Continued Drop in Enforcement

Both the total number of charges and the sex harassment and gender discrimination claims show a trend away from filing with the EEOC. While the percentage of claims related to sex has remained steady near 30%, the total number of claims has dropped dramatically since they peaked at 30,356 in 2012. Total claim numbers show a similar trend. The 72,675 claims filed in 2019 pales in comparison to the nearly 100,000 charges in 2010, 2011, and 2012.

This reflects the EEOC’s shift in priority to reduce its caseload. Last year, EEOC Acting Chair Victoria A. Lipnic said the agency was trying to focus on “meritorious charges” and cases that “advance the public interest” rather than representing a broader range of women and minorities facing discrimination at work.

When Should You Skip Filing an EEOC Complaint?

Filing a claim with the EEOC may seem like a logical first step for your sexual harassment or gender discrimination claim. In fact, it is mandatory under most federal anti-discrimination laws. You usually cannot file a complaint in federal court until you have received a notice of right to sue from the EEOC. However, filing a complaint isn’t always the best choice for employees. You may want to skip or delay filing an EEOC complaint if:

You Work for a Very Small Company

The EEOC only has authority over employers with 15 or more employees (except in cases of Equal Pay Act violations). If you work for a very small company, you may not be able to use the EEOC or the federal statutes it enforces to get the relief you need.

You Want to Continue in Your Current Position

Retaliation is illegal under every state and federal anti-discrimination law. But the fact that 53% of all charges filed with the EEOC were for retaliation shows that it is still a real part of resolving sexual harassment and discrimination. From a practical perspective, if your goal is to keep your current position and change the culture in your workplace, the EEOC may not be your best choice. Instead, you and your gender discrimination attorney may be able to negotiate the changes you seek without burning bridges and making your employer more hostile to you and your cause.

Your Claim is Better Protected Under State Statutes

Title VII of the Civil Rights Act is the national go-to statute for sexual harassment and gender discrimination, but that doesn’t mean it is the gold standard. For some, state and local laws may apply more directly or provide better options for enforcement. This is especially true for independent contractors, vendors, and the victims of sexual orientation or gender identity discrimination. However, a claim at one office sometimes precludes filing the same claim somewhere else. Before you decide whether to go to the EEOC or the New York Human Rights Commission, be sure to talk to an experienced employment discrimination attorney so you understand the effects of that decision.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment discrimination cases. We know when to file a claim with the EEOC and how to make the New York State Human Rights Law work for employees who might otherwise not get the attention they deserve. Contact us to schedule a consultation at our office in New York City, or over the phone.

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

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

Weinstein’s Sexual Harassment Catches Up With Him

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

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

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

Lawsuits Pile Up Against Weinstein and His Company

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

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

Settlement of Sexual Misconduct Lawsuits Depends on New York Bankruptcy Court

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

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

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

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

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

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

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

What to Do About Sexual Assault Between Vendors

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

Employees and Vendors Call Out Famous Sommelier for Sexual Assault

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

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

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

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

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

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

Vendors Face Special Challenges Raising Sexual Harassment Claims

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

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

New York State Human Rights Law Protects Vendors Against Sexual Assault

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

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

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

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

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

Cuba Gooding Jr. Faces Secondary Sexual Assault Charges

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

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

Secondary Charges Show a Pattern of Sexual Assault

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

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

Famous Actor Blames the Victim in Sexual Assault Charges

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

Sexual Assault Victims Find Strength in Numbers

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

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

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

EEOC Considers Changes to Equal Pay Data Collections

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

EEOC Collects Demographic, Pay Data to Address Wage Discrimination

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

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

EEOC Announces Intent to Stop Collecting Equal Pay Data

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

Pay Equity Advocates Push for Continued Equal Pay Data Collection

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

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

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

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

Employers’ Consultants Say Equal Pay Reports are Too Burdensome

Three other witnesses testified on behalf of employers:

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

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

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

Usefulness of Equal Pay Data Called into Question on All Sides

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

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

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

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

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

What Sexual Harassment Looks Like When You Work From Home

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Many more New York residents are finding themselves working remotely in jobs that used to be 9-5 in an office. You might assume that this social distancing would remove the risks of a hostile work environment. However, sexual harassment can happen in any workplace. Find out what sexual harassment looks like when you work from home.

What Counts as Sexual Harassment

According to Title VII of the federal Civil Rights Act, sexual harassment is a form of illegal gender discrimination. It includes unwelcome sexual advances and jokes, requests for sexual favors, and other verbal, written, or physical sexual activities. It can include offensive comments and jokes about a person’s sex, or sexual activities.

The law doesn’t protect against every off-color comment, but it does prevent sexual harassment that happens so often or is so severe that it creates a hostile work environment or forces a person out of his or her job. It also prevents “quid pro quo” requests that condition work on agreeing to sexual favors.

Workers who experience these kinds of hostile working conditions can report the sexual harassment to their employer. Title VII and similar state laws require employers to investigate and respond to those reports by taking reasonable steps to stop the harassment. If they ignore it, or worse retaliate against you for filing the complaint, you can take the matter to the Equal Employment Opportunity Commission, or your state civil rights office (in New York that is the New York State Human Rights Division).

Sexual Harassment Can Happen in Any Workplace, Even a Virtual One

There is no industry that is entirely safe from sexual harassment. Off-color jokes and unwanted sexual advances can happen on the factory floor, in the back room at a retail store, or in the boardroom of a white collar office. They can even happen between remote workers online.

Because sexual harassment doesn’t have to be physical, the distance between coworkers doesn’t matter. If requests, jokes, or comments are made in a virtual space, you can find yourself being sexually harassed even while you work from home. However, the form virtual sexual harassment takes may be a bit different than gender discrimination in the office or workshop.

What Sexual Harassment Looks Like When You Work From Home

Complaints over sexual harassment and gender discrimination don’t have to fit into any specific buckets. Anytime comments or requests are sexual in nature or based on your sex or gender, you have the right to file a complaint with your employer. However, here are some common examples of virtual sexual harassment that can target home-based workers:

Emails from Supervisors or Bosses Requesting Sexual Favors

Many people working from home right now still live relatively close to their coworkers and bosses. When a supervisor or boss sends you an email or other direct message asking for a “hook up” or for you to come to his or her home for sexual favors, especially if it is implied that saying yes will help you at work, this is a form of sexual harassment. It doesn’t matter if neither of you were ever in the office.

Coworkers Sending Sexts or Video-Chat Exposures

When you and your coworkers work from home, a lot of business happens through text messages and video-conferencing. However, sometimes a coworker may take advantage of knowing your cell phone number or user ID to send unsolicited sexual content. They may even start a video-chat with you for the purpose of exposing themselves to you, or demanding you do the same for them. This is a more severe form of sexual harassment. Even one such event could be enough for an EEOC complaint.

Sexual Jokes or Off-Color Comments in the Company Messaging App

Many companies with remote workers rely on intranets or messaging apps like Slack to stay connected with their employees. Often, these company messaging apps include spaces for work and for “random” or informal dialog. Sexual jokes and off-color comments can flourish in these settings. Because workers are used to the anonymity of the Internet, they may make comments they wouldn’t in face-to-face conversations. Also, a single comment can create ongoing dialog on a similar theme, or can come up again and again as part of an “inside joke”. These kind of repeated casual jokes and comments can add up to sexual harassment when they become so frequent that a reasonable person would find it difficult to do their work, creating a hostile work environment.

What to Do if You are Facing Sexual Harassment as a Remote Worker

However, there is good news about the use of technology to enable employees to work from home. Unlike when you are approached at work, nearly everything that happens online leaves a data trail. That means that sexual harassment targeting remote workers is often easier to prove with a click of a button. If you find yourself the target of sexual harassment, object to it and record it. Download the email, take a screenshot, or document the offensive video. Then provide that documentation to your HR coordinator or supervisor.

If your employer don’t investigate the complaint and take reasonable steps to stop the behavior, contact a sexual harassment attorney. They can help your employer understand their obligations under the law, negotiating for meaningful changes to your digital workplace and advocating on your behalf. If that doesn’t work, you and your lawyer can use that same digital proof to file a complaint with the EEOC, state anti-discrimination agency, or in federal or state court.

The sexual harassment attorneys at Eisenberg & Baum, LLP, have decades of experience helping the victims of sexual harassment get the compensation they deserve. We know how to apply federal and state anti-discrimination laws to home-based work environments, negotiate with employers using remote workplace models, and help you build your best case. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.