Congress Considers National Law to Help Control Online Sexual Abuse Materials

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Imagine you are working with the police to track down someone who has distributed your child’s image online only to be told that the social media company storing the image had deleted it. How would you feel if a 90 day policy window closed preventing you from getting justice against your child’s abuser? A new federal bill seeks to stop that from happening by giving police and prosecutors more time to build their cases.

END Child Exploitation Act Buys Time for Busy Investigators

On December 10, 2019, Representative Anthony Gonzalez, a Republican from Ohio, submitted a 2-page bill with 7 co-sponsors showing bi-partisan support. HR 5376, the Eliminate Network Distribution of Children Exploitation Act (END Child Exploitation Act), proposes one simply thing: to extend the amount of time communications companies like Google, Dropbox, and Facebook are required to retain child sexual abuse materials they find on their platforms.

Right now, federal law requires these providers to report any child pornography or other sexually abusive content to a federal CyberTipline and preserve the contents of those reports for 90 days while investigators follow up on the tips. But for many state and local police departments, 90 days is simply not enough time to complete their investigation. The END Child Exploitation Act would expand that period to 180 days. It would also allow providers to voluntarily retain the images and videos longer if doing so is part of an effort to “reduc[e] the proliferation of online child sexual exploitation or prevent[] the online sexual exploitation of children.”

45 Million Child Sexual Abuse Materials Found in 2018 Alone

In late 2019, the New York Times reported that cloud storage and social media companies were facing an overwhelming number of digital child pornography images. In 2018, a record 45 million photos and videos were flagged as Child Sexual Abuse Material (CSAM). That number has been growing uncontrollably for more than a decade. In 2008, the number was less than 1 million images, but Washington already felt it was facing a crisis. Tech companies, law enforcement agencies, and federal legislators came together to create the PROTECT Our Children Act, which became law on October 13, 2008.

But as the problem continued to grow, the law, and the law enforcement agencies who enforce it can’t keep up. The Justice Department, which the PROTECT Our Children Act empowered to fight the problem, never even wrote mandatory monitoring reports or assigned a senior-executive level employee to handle the matter. At the same time, law enforcement agencies have difficulty recruiting and retaining skilled IT professionals with the technological knowledge and ability to perform the investigations. Some have taken to prioritizing cases based on the age of the victim. The New York Times reports:

 “‘We go home and think, “Good grief, the fact that we have to prioritize by age is just really disturbing,”’ said Detective Paula Meares, who has investigated child sex crimes for more than 10 years at the Los Angeles Police Department.”

Tech Companies Drag Their Feet in Responding to Investigators

According to the Times, one significant bottleneck in investigating child sexual abuse materials online is the tech companies themselves. Microsoft has developed tools to automatically screen for child pornography and other illegal or illicit content, but it and other tech companies refuse to use it consistently across all their platforms. Federal law requires them to report any CSAM they find, but they aren’t required to look. When investigators send requests for information, they can take weeks or months to respond, if at all. By then, the 90-day retention window has often passed, and their response is simply that the company has no records.

Funding continues to be a problem as well. Congress has allocated $60 million to the issue, but diverted about half of that money to state and local law enforcement rather than the Department of Justice, which oversees investigations that cross state lines. The Department of Homeland Security has also diverted nearly $6 million from cybercrimes to immigration enforcement — a 40% budget cut.

The problem isn’t just with the government either. The National Center for Missing and Exploited Children faces ever-evolving technological encryption using 20-year-old technology. With their limited resources, it is hard to keep engineers on the job.

The END Child Exploitation Act hopes to help investigators catch more of these cyber-criminals by forcing tech companies to hold on to the reported images long enough for investigators to complete their investigations. The bill was immediately referred to the House Judiciary Committee, but there has been no activity since that time. However, simply extending the timeline won’t solve all the problems facing law enforcement agencies and child sex abuse survivors’ advocates. Sex abuse victims’ advocates, legislators, and law enforcement will need to work together to find new solutions to protect children and their families from this ever-growing threat to their privacy and personal dignity.

At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the social media companies. We know how to work with law enforcement and tech companies to get the evidence you need to protect your loved ones. Contact us today to schedule a free consultation.

Britt McHenry Says Sexual Harassment Continues at Fox News

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Online Fox Nation host Britt McHenry sued Fox News, saying that her co-host Tyrus sexually harassed her and that the network did nothing to respond to her complaints. Hers is the latest in a string of sexual harassment claims against the company, showing that the company’s new “zero tolerance” policy isn’t playing out in the workplace.

Online News Host Says Cohost Sent Sexual Texts, Network Remained Silent

Britt McHenry co-hosts Fox News’s online streaming program “Un-PC” with George Murdoch, a former professional wrestler with the stage name Tyrus. But their working relationship seems to be on the ropes. According to a recent lawsuit McHenry filed in the United States District Court in Manhattan, Tyrus repeatedly sent her inappropriate and sexual text messages, some of which were threatening. When she and her agent reported the incidents to Fox News, the company investigated, and then did nothing. It even went so far as to offer Murdoch his own streaming show, “Nuff Said.”

According to the lawsuit, on October 31, 2018, Murdoch sent her text messages saying:

“I love ponytails and braids you look amazing and it’s a real turn on not that you care but I love it”

Two days later, he sent another:

“Is it creepy how I look at you ??? . . . FYI you’ll need those legs to escape from me in Montana.”

Later, he told her that a picture of her “looks so good I would knock the picture up” saying “Crazy sexy love your legs.”

McHenry reported the texts to Fox News, and to the New York State Division of Human Rights. But the sexual harassment issues continued even as the company investigated the allegations. According to the lawsuit, the Fox News investigator told her she was “really pretty” and “leading him on.”

New Sexual Harassment Claims Show Ongoing Problems at Fox News

This is hardly the first time Fox News has had to respond to public allegations of sexual harassment and misconduct. In June 2016, reporter Gretchen Carlson and host Andrea Tantaros filed suit based on sexual harassment and misconduct by company chairman Roger Ailes. Over the next year, women employees of the news company raised their own claims of sexual harassment and retaliation. Many pointed toward misconduct by news personalities Bill O’Reilly and Sean Hannity.

After paying over $100 million in settlements and verdicts, Fox News publicly stated it has a “zero tolerance” policy toward sexual harassment. Yet when McHenry filed a lawsuit with her allegations the network said:

“The lawsuit recycles the same allegations [as the earlier administrative complaint]. . . . As we have previously stated, Ms. McHenry’s allegations have been fully investigated and we are confident our actions will be deemed entirely appropriate in litigation. We expect all of her claims to be dismissed.”

McHenry alleges that she has also been shut out of advancement opportunities at the company, including spots on broadcast shows with higher viewership. At the same time, her harasser has been given his own show. Her complaint says:

“In practice, Fox News remains a sanctuary for sexual harassers, coddling and enabling men who abuse female employees.”

In response to the company’s statement that she is repeating claims, McHenry wrote on Twitter:

“I have maintained the same allegations because the truth doesn’t change. I feel for any sexual harassment victim who has their story and evidence dismissed, doubted and not believed.”

Getting Relief from Sexual Harassment Often Means Repeating Your Story, and Your Complaints

Ms. McHenry’s situation, and Fox News’s response to the complaint, highlight one thing about how sexual harassment claims are handled: the repetition. Ms. McHenry made complaints internally. Her agent advocated for her. Then she filed a claim with the New York State Division of Human Rights before finally filing a lawsuit in federal court. If Fox News is complaining that these are the same allegations, they’re right.

That’s because the process for raising Title VII sexual harassment claims involves a number of steps. Until you have exhausted your administrative remedies and received a Notice of Right to Sue, you can’t take the matter to court. For some, this delay and repetition causes inconsistencies or changes in their story and reduces their credibility. The fact that Ms. McHenry’s allegations have remained constant suggests that what she says really did happen.

Ms. McHenry’s suit is in its early stages, and Fox News still has time to settle her claims. But if it continues to insist that it did nothing wrong, she has asked that a jury hear her story and decide if the news agency has really taken appropriate steps to change its way.

At Eisenberg & Baum, LLP, our sexual harassment attorneys have the patience and endurance to see your case through all the stages of a civil rights complaint: from the first letter to your employer to the last arguments of a jury trial. If you have been the victim of sexual harassment at work, we will review your case and help you tell your story in a way that protects you and gets you the compensation and relief you need, so you can get on with your work. Contact us today to schedule a free consultation.

A Parents’ Guide to Responding to Children Who Report Sexual Abuse

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It’s one of the hardest things a parent ever has to face: their children reporting sexual abuse. What do you do if your kid comes to you and says the worst has happened? Who should you talk to, when, and what shouldn’t you say or do around your child?

Your Child Said Someone Hurt Them, What Do You Say Back?

The single most important thing for a parent to do after a child reports sexual abuse is to give that child the love and support they need to move past the harm. As emotional as that moment may be for you, your child needs to know that they will be okay, and that they are not “damaged” by what has happened.

That starts with your response to your children when they report sexual abuse. Thank them for telling you and believe what they say. Most historical studies about false claims of sexual abuse by children show less than 10% of all allegations were made up. Most of those were by adolescents seeking revenge or a change in their custodial environment. So if your child comes to you and says something inappropriate happened, you should treat that as truth, no matter how much you would rather it wasn’t.

Next, stay calm and be clear about what they are telling you. Ask questions in an open way without suggesting the answer you want to hear. For example, rather than saying, “He didn’t have sex with you, did he?” you could ask, “What did he do with you in the bedroom?” Try not let your face tell your child that you are relieved or disappointed with their answers. Children will often change their stories if they feel like they are causing pain or upsetting others — especially their parents. This doesn’t mean the sexual assault didn’t happen, but it could make it harder to prove what did occur later on.

Give Your Child Their Safety, Autonomy, and Privacy

Once that initial, painful conversation is over, work with your child and the other adults in their life to make them feel safe. Make sure your child understands that the person that assaulted him or her is the one who did something wrong, not them. Listen to what your child needs to feel protected, and let them do whatever makes them feel safe and comfortable, even if it seems unreasonable to you. This will help them understand they are in control of their own body. At the same time, pay attention to any behaviors that are regressive (bed wetting, sleeping with parents in their bed, sucking thumbs) because these may be symptoms of trauma.

You should also be working with the adults in your child’s life to ensure their safety. If the perpetrator of the abuse is a family member or family friend, take steps to make sure that person is never alone with your child. Create a safety plan with your child’s other parent, caregivers, teachers, and other mentors to shield them from their abuser while protecting their privacy.

Find Professionals to Help You

No one can or should be expected to respond to children who report sexual abuse alone. There are a number of professionals whose job it is to help you along the way:

Police

Sexual assault of a child is illegal in all 50 states. Anytime a child reports being sexually assaulted by an adult, you should contact the police right away to issue a report and start the criminal investigation. This is true even if the abuser is a member of your family or someone you care about. If this person was willing to take inappropriate actions with your child, he or she may do it again to another child unless someone intervenes. Also, as a parent of a sexually assaulted child, failing to take reasonable steps to report and respond to abuse — including filing a police report — can sometimes result in protective services action against you.

Pediatrician or Physician

Sexual intercourse can physically harm young children. If you believe that your child has engaged in sex you should have them examined by their pediatrician or family physician. In some cases, the police will want a medical examination done right away — even before the child has a chance to bathe — in the hope that physical evidence of the abuser may be preserved. Even if the incident happened days ago or longer, you should still have your child see a doctor to make sure there are no physical injuries. The doctor may also be able to recommend a therapist or counselor to help your child deal with the emotional effects of the traumatic event.

A Sex Abuse Victim’s Advocate

Not everything that should happen after a child reports sexual assault needs to happen right away, and you may not even know everything on that list. It is a good idea to speak to a sex abuse attorney or victim’s advocate soon after the report happens. Some prosecuting attorneys’ offices will assign victims advocates to cases that result in criminal charges, but the work they do is limited to that case. A private sex abuse attorney, like our team at Eisenberg & Baum, LLP, can help you identify and connect with the right professionals, prioritize between the demands on you and your child, and help protect your son or daughter’s rights, keeping them from revictimization or becoming traumatized again because of the process.

Forensic Investigators

In many cases, the criminal investigation of a report of child sexual assault will include a forensic examination and interview by a professional trained to help children tell their stories. It is best if these interviews happen early in the investigative process, before a child has time, or a reason, to change their story.

Psychologists and Therapists

In many cases, the most important professional in your child’s life after a sexual assault is their counselor. A psychologist or therapist trained in trauma recovery can help your child better articulate what happened to them, learn coping mechanisms to deal with the emotional aspects of recovery, and give them a safe space to say whatever they are feeling, even about you. Be sure to protect that confidential relationship. Your child’s therapist may want to speak to you about things that are said or done in therapy or explain how you can help encourage your child between sessions, but you should not press your child to find out what was said in a private session.

Express Your Own Feelings in a Mature Way, Away from Your Child

As a parent of a sexually abused child, you will have feelings of your own about the situation. While there is no single “right” emotional reaction, many parents feel:

  • Anger – at the abuser, at the systems that allowed the abuse to happen, or even at your child for not telling you sooner
  • Anxiety – about how to move forward and what the right response might be
  • Fear – over what the abuser will do when the situation becomes public or about the lasting harm to your child
  • Guilt – that you allowed this to happen to your child or did not see the warning signs sooner
  • Sadness – for your child, your family, and yourself (especially when the abuser is a family member or romantic partner)
  • Shock or surprise – over the fact that it happened to you and your family

Your child does not need to see you wrestle with these emotions. They have a hard enough task ahead of them dealing with their own. Find a friend to share them with privately, discuss them with your sex abuse attorney, or seek professional support from a counselor or support group. Try not to air your feelings publicly or in a way that they may come back to your child (such as on social media).

There is no easy answer about what to do when a child reports sexual assault. The best advice is to be patient and supportive with your child, and to get the professional help you both need to heal and protect your rights. At Eisenberg & Baum, LLP, we have a team of attorneys who know what to do in the face of sex abuse for children and their parents. We will help you so you can help your child and get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Could Ability-Based Wages Close the Gender Pay Gap?

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How does your boss decide what to pay you? Is it based on your position, experience, or rain-making record? What about your core ability? An academic report suggests that income inequality and the gender pay gap could be reduced if people were paid based on their traits and abilities, rather than their job title.

Study Finds Income Inequality Thrives in Small, Professional Businesses

In July 2019, the Oxford Quarterly Journal of Economics published a new study about income inequality across the country. The study sorted through tax data for 11 million companies tracking the income of their owners and employees. It found that income inequality, which has been on the rise for over 40 years, coincides with the decline of traditional corporations and the increase in pass-through entities like S-Corporations and Limited Liability Corporations (LLCs).

S-Corporations are the favorite structure of small professional businesses focused on regional operations, like law offices, financial managers, and medical offices. In those businesses, owners and executives are far more likely to be part of the top 1 percent of earners, including lawyers, doctors, and wealth managers.

Productivity and Ability Doesn’t Justify Pay Gap

The study asked the question of whether these owners’ skills justified the difference in what they were paid. It found that the range of worker productivity is much smaller than the standard pay gap. Managers and rain-makers were approximately 50% more productive than the average worker at the company. But they were paid far higher.

Income distribution according to the study says the richest Americans earn 30% of all income, and the bottom 10% earn just 1% of the money. However, ability-based wages would narrow that spread and distribute wealth more equally across the population. When income is based on each employee’s education, IQ, age, and personality traits, the top 10% earned 19% of income and the bottom 10% earned 3%. The biggest difference came in the richest category.

Ability-Based Wages Could Help Close the Gender Pay Gap

It turns out, women in particular could benefit from the adaptation of ability-based wages. That is because women are distinctly underrepresented at the management and executive levels of business. In fact, this difference in job title makes up most of the gender pay gap. When the measurement of median income is limited by the same job and qualifications, the most recent data shows only a $0.05 difference. But an uncontrolled measurement shows that women earn only $0.79 for every $1 paid to their male counterparts. This demonstrates the systemic gender discrimination in promotion and hiring at the higher levels. For example, according to Payscale.com, by age 45, 38% of men had been promoted to a manager or supervisor level. By the same age, only 30% of women had reached the same level. The difference is even more stark at the executive level, which makes up 8% of men over age 45, but only 3% of women ever become leaders in their companies. This so-called “opportunity gap” shows that women tend to remain in lower-level positions throughout their careers (59% never move past the individual contributor level). Under the current model this equates to lower-paid positions, regardless of the women’s actual ability or productivity.

Equal Pay Act and Title VII Help Women Fight for Ability-Based Pay

All the statistics in the world won’t convince the owners of small professional businesses to change their pay model. But a well-argued complaint to the Equal Employment Opportunity Commission or in federal court might. Title VII of the federal Civil Rights Act and the Equal Pay Act both prohibit gender discrimination in wages. These laws, and their state equivalents give employees the tools they need to affect change at work and be sure they are paid what they deserve. If you believe you are paid less than your male counterparts for substantially similar work, you may be able to use an Equal Pay Act complaint to negotiate a different way to measure employee worth, and get properly compensated for your productivity and hard work.

At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to use statistics like the Oxford report to prove your wage discrimination case. If you believe that you have been discriminated against as a woman in your small business, we will review your situation and help you plan a strategy to help you close the gender gap. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Survivors of Childhood Sexual Assault Face Reliving Trauma Online

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Childhood sexual assault is a crime that carries a lifetime of consequences for its victims. The physical, mental, and emotional trauma can affect the survivors of these crimes on into adulthood. Now, as the first generation of these survivors are coming of age, they find themselves facing a new challenge: being forced to relive their trauma when images and videos find their way back online.

Child Pornography Videos Resurface Decades Later

The creation and distribution of child pornography is a serious crime that includes severe penalties for those convicted. One reason those penalties must be so steep is because once something is posted on the Internet, it is almost impossible to remove completely. Some survivors of childhood sexual assaults are finding that years, sometimes decades later, those photos and videos have re-emerged as prosecutors across the country have seized mobile phones, computers, and cloud storage of pedophiles.

A recent investigation by the New York Times into the effects of online storage and social media on the survivors of child sexual assault. The newspaper tells the story of two sisters, who choose to remain anonymous because they fear child molesters and other sexual predators seeking them out:

“Ten years ago, their father did the unthinkable: He posted explicit photos and videos on the internet of them, just 7 and 11 at the time. Many captured violent assaults in their Midwestern home, including him and another man drugging and raping the 7-year-old.

“The men are now in prison, but in a cruel consequence of the digital era, their crimes are finding new audiences. The two sisters are among the first generation of child sexual abuse victims whose anguish has been preserved on the internet, seemingly forever.”

In their interview, the sisters explain that online predators sometimes stalk people in the photos and videos they download. Even though the sisters are now 17 and 21 years old, they continue to relive their trauma whenever a man looks at them or asks, “Have I seen a picture of you when you were a kid?” They fear that their trauma will be there forever since the video of their childhood sexual assault is online for all to see.

Tech Companies Refuse to Fight Back Against Pedephilia on Their Platforms

Perhaps the worst part of this story is the fact that the tech industry has the tools to remove child pornography and other illegal and illicit content from its servers, but it refuses to use it. In 2009, Microsoft and Professor Hany Farid, now at the University of California, Berkeley invented a software known as PhotoDNA. It allows computers to compare photos against databases of known illegal images and flag illicit content for removal. You can see how PhotoDNA works in the New York Times article on their investigation.

But even though tech companies use this software for facial recognition, malware detection, and copyright enforcement, many refuse to apply the same software to stop the storage and distribution of child pornography:

  • Amazon does not even look for the imagery on its cloud storage
  • Apple does not scan its cloud storage and encrypts its messaging app, making detection nearly impossible
  • Dropbox, Google, and Microsoft scan for illegal images when they are shared, but not when they are uploaded
  • Snapchat and Yahoo look for photos but not videos
  • Facebook does scan its platforms, but does not use all available databases to detect material

“‘Each company is coming up with their own balance of privacy versus safety, and they don’t want to do so in public,’ said Alex Stamos, who served as chief of information security at both Facebook and Yahoo. ‘These decisions actually have a humongous impact on children’s safety.’”

New York Laws Allows Courts to Order Removal of Pornographic Images

But there is some good news for those survivors of childhood sexual assault living in New York State. New laws passed in 2019 give them the tools to take on the tech industry and get their images removed, even years after the fact. Taken together, the state’s revenge porn law and the Child Victims Act create an opportunity to enforce their privacy even against tech companies who value their consumers’ privacy over the victims of sexual assault.

The state’s law against the “dissemination or publication of an intimate image” went into effect on February 25, 2019. The law includes a private right to go to court and ask a judge for a court order requiring any website within its jurisdiction to permanently remove images or video from its sites and servers.

The New York State Child Victims Act, passed into law on January 24, 2019, gives those survivors more time to file their claims and get the relief they need. Civil lawsuits related to child sexual assault can be filed anytime until the victim turns 55 years old. There is even a one-year grace period for those whose cases are too old to fall within the statute. Taken together, these laws give survivors of child sexual assault the ability to fight back against the pedophiles that stalk them and the tech companies who shield those bad actors from justice.

At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the social media companies. We know how to use all the tools the law provides to get those images removed and protect their identity. We can help you file a claim and receive the compensation you deserve and the injunctive action you need to stop reliving your trauma online. Contact us today to schedule a free consultation.

U.S. Supreme Court Takes On Racial Discrimination in the Media

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There have been laws against racial discrimination since just after the Civil War. But when it comes to enforcing those laws, the battle rages on. That fight has made its way to the United States Supreme Court in Comcast Corp. v. National Association of African American-Owned Media. The way the Court rules could change the future of discrimination cases nationwide.

The Nation’s Oldest Civil Rights Law

Title VII of the Civil Rights Act became law in 1965, but it wasn’t the first time the legislature passed a law to protect the nation’s disadvantaged residents. 42 U.S.C. § 1981 — referred to by the courts as Section 1981 — was passed in the fallout of the Civil War in 1877. It says:

“All persons . . . shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .”

It was designed to protect African American residents and business owners from racial discrimination as they began to exercise their rights as citizens. When their commercial efforts are burdened by racial bias and bigotry, they can use the federal courts to get equal access under the law.

Racial Discrimination in Cable Broadcast Contracts

Section 1981 is the law Byron Allen fell back on when he was shut out of commercial contracts in his entertainment businesses. Allen owned and operated the Entertainment Studios, a television and motion picture company operating 7 channels including JusticeCentral.TV, Pets.TV, Comedy.TV and Cars.TV. His shows have been distributed through Verizon, AT&T, and DirecTV, but never with Comcast. Allen filed a federal Section 1981 lawsuit claiming that Comcast’s refusal to enter a contract with Entertainment Studios was due to racial discrimination. In support of that claim, his complaint alleged Comcast’s:

  • Expressions of interest followed by repeated refusals to contract
  • Suggestions of how to secure support followed by reversals of positions after Entertainment Studios had undertaken the time and expense of those steps
  • Exclusion of Entertainment Studios even when taking on all 500 networks by its main competitors
  • Carriage of “lesser-known, white-owned” networks while claiming it had no bandwidth to carry Entertainment Studios.

Comcast didn’t just respond to the complaint, it filed an immediate Motion to Dismiss the lawsuit. It said that it had legitimate business reasons for refusing the contracts with Entertainment Studios. It also said under federal court rules there was no way Allen could make a case for racial discrimination because nothing he claimed showed a “but for” connection between racial bias and the loss of the contract.

The Two Standards for Proving Racial Discrimination

Comcast’s motion, and its appeal, depended on two previous Supreme Court cases analyzing different civil rights laws: the Age Discrimination in Employment Act (ADEA) and retaliation claims brought under Title VII. These cases said that by default, these laws require that the offending behavior would not have occurred “but for” racial bias or bigotry.

The Ninth Circuit Court, which heard the case, said Section 1981 worked differently. It said that both the other laws contained language that the conduct was “because of” discrimination. There is no “because” in Section 1981. The appellate court said that meant instead of alleging “but for causation”, all Allen had to do was allege facts that show race was a motivating factor in Entertainment Studios’ disparate treatment. The appeals court said it wasn’t the plaintiff’s job to tell what was inside the mind of Comcast’s vice president of programming. As long as the facts alleged appeared to support that race was part of the equation, that was enough for the case to go through to the discovery phase.

The Supreme Court Hears the Arguments on Racial Bias in Negotiations

Comcast wasn’t satisfied with that answer. It appealed the decision to the U.S. Supreme Court, which granted certiorari to review the case. On November 13, 2019, the matter was heard by the U.S. Supreme Court. The oral argument came down to technical legal details and that same central theme: whether racial bias needed to be the direct cause of the lost business, or just one factor among many.

Unlike the Ninth Circuit Court, the Supreme Court Justices’ questions centered on the difference between pleadings and proof. The Ninth Circuit’s opinion seemed to suggest the motivating factor standard would apply all the way through the case. But by the end of the oral arguments, it seemed that everyone — even Mr. Allen’s attorney — agreed that when the time came for trial he would have to show that same “but for” connection between discrimination and action. But Comcast said that same standard should apply to the initial pleadings. Mr. Allen’s attorney said that level of proof should come later, after the attorneys had their chance to develop their case through discovery.

As with any Supreme Court decision, it is hard to know what the Justices will do even by reading the oral arguments. The Court has until June 2020 to deliberate and write its opinion. If the court determines that a plaintiff can file a complaint based on a motivating factor, it will make it easier for the victims of racial discrimination to make their cases and take them to court. If it rules in favor of a “but for causation” standard, plaintiffs will often have a hard time putting together the evidence they need without access to the defendant’s records, or their thoughts.

At Eisenberg & Baum, we know how important it is to develop a strong case for our clients. Our employment discrimination attorneys, help employees and business owners file their claims under Title VII, state civil rights laws, and Section 1981. We stay on top of changes in the law, so that you know we are using the best strategies against the discrimination you face at work and in your contracts. If you have been the victim racial discrimination, contact us. We’ll meet with you and help create a strategy that protects you and your business.

Will You Lose Your Rights If You Quit Your Job to Escape Sexual Harassment?

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Every day, many victims of sexual harassment walk into work wondering if this is the day they will quit. They may struggle to endure the hostile working environment rather than run the risks of unemployment. Others stick it out, only to be fired rather than have their complaints heard. Are you trapped in a sexually abusive workplace? What happens to your right to sue when you quit your job to escape sexual harassment?

This blog post will discuss EEOC v. Green Lantern Inn, Inc., Civil Action No. 6:19-cv-06704 in U.S. District Court for the Western District of New York, Rochester Division. It will discuss “constructive termination” and what happens if you quit your job to escape sexual harassment. It will also cover whether leaving a hostile work environment means giving up your right to protection under state and federal civil rights laws.

Hostile Work Environments Build Over Time

Sexual harassment and gender discrimination are rarely a one-time events. Most women and men facing sexual misconduct at work are subjected to a pattern of abuse that spans weeks, months, or even years. This behavior creates a “hostile work environment”. When an employer is put on notice that this kind of behavior is going on and doesn’t do anything to correct the problem, it can give the employee the right to sue her or his employer for sexual harassment at work.

How much harassment must you tolerate before you have a claim? The law says that a hostile work environment is created when a supervisor, coworker, or even customer of the business acts in a way that is “severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” In most cases, that means more than just an off-color joke or a little flirting. But when you face sexual comments, jokes, or physical conduct day after day, it can quickly add up to more than a reasonable person can tolerate.

EEOC Sues for Hostile Work Environment at Rochester, New York Restaurant

That’s what happened to Rachel Clifford and her fellow coworker at Mr. Dominic’s on Main, a restaurant in Rochester, New York. The Equal Employment Opportunity Commission (EEOC) recently sued Green Lantern Inn, Inc. (the legal entity behind Mr. Dominic’s) for violating Title VII of the federal Civil Rights Act. The complaint in EEOC v. Green Lantern Inn, Inc., Civil Action No. 6:19-cv-06704 said that Rachel Clifford and her unnamed coworker suffered a pattern of sexual harassment by the restaurant’s head chef and kitchen manager, Paul Dowlatt. According to the complaint, his sexual misconduct included inappropriate physical contact, inappropriate, hostile and offensive comments, and explicit reqeusts for sex.

It was all too much for Ms. Clifford. She filed complaints about Dowlatt’s abusive conduct to the restaurant’s owner, John Tachin, and general manager, Anthony Barbone, but the company failed to act to protect her and her coworkers from the ongoing hostile behavior. When Mr. Dominic’s took no action to stop Dowlatt’s harassment, Clifford quit. Her coworker was fired shortly after lodging her own complaint about Dowlatt.

Both employees then filed complaints with the EEOC. When attempts at negotiation failed, the agency sued the restaurant on their behalf. Jeffrey Burstein, regional attorney for the EEOC’s New York District Office said in a statement:

“Employers who are on notice of sexual harassment in the workplace have a clear duty to quickly put an end to the harassment. . . . The EEOC will continue to hold employers accountable for failing to protect their employees from unlawful harassment.”

Quitting and “Constructive Termination”

The good news is that Ms. Clifford and others who are forced out of hostile work environments don’t automatically give up their rights to file claims with the EEOC or federal court just because they leave. According to the U.S. Supreme Court:

“Under the constructive discharge doctrine, an employee’s reasonable decision to resign because of unendurable working conditions is [equated with] a formal discharge for remedial purposes. . . .  The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee’s position would have felt compelled to resign?” Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004).

That means you aren’t forced to keep enduring toxic working conditions just to protect your rights. If any reasonable person would have resigned when you did, then the judge will treat your case just the same as if you were fired. You can see that in the complaint filed with the EEOC. Ms. Clifford quit, so her claim is for constructive termination, but it is treated the same as her coworker who was fired.

When an ongoing hostile work environment forces you out of a job, you need the help of employment discrimination attorneys who will work hard to protect your rights. At Eisenberg & Baum, LLP, our sexual harassment attorneys can help you demonstrate the conditions at your workplace, and prove your case to your employer, the EEOC, or the court. If you are facing sexual harassment at work, we can help. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.