Join Live Q&A at the Documentary Screening of “A Dance with Destiny” featuring Panelist Juyoun Han – A community discussion about Kidney disease and medical algorithms that impact racial minorities

/

Film Poster A Dance With Destiny

Register to the Panel Discussion

“Shining A Light On Kidney Disease In The Black Community”
Saturday, March 20th at 4pm EDT / 1pm PDT
Live Q&A discussing the documentary film A Dance with Destiny 

Join panelists including Juyoun Han to discuss A Dance with Destiny, a documentary about a life-saving discovery in the fight against kidney disease produced by Shining Light Productions and distributed 1in9 Charities, Inc., an Arizona nonprofit with a mission of changing the trajectory of kidney disease and save millions of lives by raising awareness about this silent killer, promoting preventive and corrective practices, inspiring hope in those afflicted, and expediting research and development of regenerative treatments and solutions. 

Hear key insights from panelists about the film plus a discussion of the disparities and impact of kidney disease in the Black community and information about the movement to remove the eGFR algorithm. Attendees will be able to ask questions of the panelists and share the ways in which the film impacted them the most, as well as an opportunity to share any pertinent examples of how kidney disease has impacted them, their family, or community.

Watch the virtual film screening here (available through the end of March, 2021):

“View the Documentary”

Did You Know

Transgender Warehouse Worker Seeking FedEx Lawsuit

/

Being yourself at work shouldn’t mean dealing with daily insults, threats, and mistreatment. But in a FedEx lawsuit, a warehouse worker coming out as transgender at work meant that former mates and coworkers turned on her, forcing her out of a job she used to love.

UK FedEx Lawsuit Calls Out Transgender Discrimination in Warehouse

Toy Prendergast had worked at FedEx’s UK headquarters in Newcastle-Under-Lyme for years. Her career as a depot operative at the company spanned 12 happy years. Throughout that time, Prendergast was presenting as male, using the name Paul.

(Mrs. Prendergast has chosen to continue to refer to her pre-transition name in explaining her experiences with the company. That name is included in this post to give context to her statements. Eisenberg and Baum does not believe in deadnaming Trans* individuals and believes that every transgender person should be granted the dignity of choosing a name that fits with their gender identity and expression.)

Before coming out, Prendergast had a good relationship with her coworkers, counting many of them as friends. But then, in 2017, Mrs. Prendergast made the difficult decision to come out at work. She began living openly as a woman and presenting as female on the job under the name Toy. Her former “mates” turned on her immediately. She told the Daily Mail:

“I used to be one of the gang as Paul – but when I came out as Toy they turned on me straight away. My life was made hell. I was scared to go to work – I was scared for my safety.

“Virtually every day I was being abused. I would wake up every night crying and drenched in sweat.

“I just couldn’t go on – I was having too many suicidal thoughts. I was panicking at the very thought of going into work. Every day was like a recurring nightmare.”

Mrs. Prendergast says she that she was subjected to nearly daily sexual harassment and gender discrimination. Her coworkers would call her names including “f****** queer”, make sexually suggestive movements and gestures, and force her to complete heavy tasks that were very difficult for her after her transition.

She reported the “toxic and intimidating environment” to FedEx after her coworkers’ behavior began to trigger panic attacks, depression, and suicidal thoughts. However, her complaints were never taken seriously. Finally, in May 2020, Mrs. Prendergast was forced to leave the company to protect herself. She is now suing the company under English anti-discrimination laws.

US Title VII, New York State Human Rights Act Protect Transgender Workers

Here in the U.S. there are state and federal laws that protect against gender discrimination and sexual harassment like what Mrs. Predergast experienced when she came out as Trans*. Title VII of the federal Civil Rights Act prevents discrimination and harassment based on a person’s sex or gender. That includes sexual orientation and transgender discrimination.

In 2020, the U.S. Supreme Court considered a case very similar to Mrs. Prendergast’s. In RG & GR Harris Funeral Homes, Inc v EEOC, funeral director Aimee Stephens was told not to come back after she told her employer she would be presenting as female at work. The Supreme Court said that this action, as well as two other cases involving sexual orientation discrimination, were necessarily based on the sex of the workers involved.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The New York State Human Rights Act goes even further. It expressly prohibits discrimination based on “gender identity or expression.” According to the act:

“The term ‘gender identity or expression’ means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

Had Mrs. Prendergast filed her FedEx lawsuit in New York, she and her workplace discrimination attorney could have chosen between state and federal court.

What to Do if Coming Out at Work Results in Sexual Harassment

If Mrs. Prendergast’s story feels familiar, there are some important steps you should take before leaving a hostile work environment:

  1. Object to the harassing behavior when it happens
  2. File a written complaint with your supervisor, union representative, or HR department
  3. Follow up on your complaint in writing (email counts)
  4. Document each incident of discrimination or harassment in a personal calendar or journal
  5. Get allies and witnesses to write statements to your employer (and keep copies for yourself)
  6. Talk to an employment discrimination attorney (even before quitting) to see if they can negotiate with your employer to make changes and avoid a lawsuit

At Eisenberg & Baum, we understand how to pressure employers like FedEx to comply with state and federal law and stop sexual orientation and transgender discrimination at work. Our employment discrimination attorneys, help LGBTQ+ protect their rights under Title VII, and state civil rights laws. We can help you protect the job you love or recover damages if coworkers’ abusive behaviors have forced you to quit. If you have been the victim of transgender discrimination, contact us. We’ll meet with you and help create a strategy that protects you and moves you closer to equality.

Final Report: Public Comments on NYPD Surveillance Technology Submitted by Eisenberg & Baum, LLP on Feb. 25th, 2021

/

Final Report

Thanks to everyone for your participation and interest in the Forums on NYPD’s Use of Surveillance Technology, hosted by the AI Fairness and Data Privacy Practice Group at Eisenberg & Baum, LLP. 

We appreciate the contributions of the 10 forum speakers and organizers in addition to the approximately 85 concerned citizens who shared their insights, thoughts, questions, and concerns about the NYPD’s use of surveillance technology tools.

We compiled the public comments collectively gathered from both forums and the Google form, and submitted them on February 25th, the deadline mandated by the POST Act.

Our document began with an outline of the POST Act before highlighting multiple ways in which omissions and procedural deficiencies in the NYPD’s draft policies undermined the disclosures they were meant to provide.

These omissions provoke questions like the following: 

  • How do these technologies work together? Thirty-six discrete technologies are described as if they are utilized independently without disclosing if or when they are deployed in tandem. 
  • How many surveillance tech devices are in use throughout NYC and where are they located? If this information isn’t included in policy disclosures, how then can we accurately assess the tools’ impacts on individual privacy and equity?
  • Which commercial vendors does the NYPD purchase these technologies from and maintain operations with? Relatedly, detailed funding disclosures should be provided for each. 

We closed this section by pointing out other cities — including but not limited to Seattle, Oakland, and San Francisco — that provide a model for improving these procedural deficiencies.

Comments from our first forum with speakers Renée Cummings, Albert Fox Cahn, Ke Yang, Reyna Lubin, and Phillip C. Hamilton, underscored concerns related to the following: 

  • Accountability: e.g. “Following the model of Oakland Privacy Commission, there should be an independent board composed of residents, law enforcement, and community activists who have approval authority over the surveillance technology being used.” 
  • Transparency: e.g. “NYPD should regularly submit its surveillance technology to independent, third-party monitors and the result should be made public,” and, “The comprehensive audit should include technological (data sets, models, implementation), socio-economic, financial, internal training and policy implementation procedures within the NYPD, and audit of all vendors and sub-vendors who develop and update the technology.”
  • Public Education, Right-to-Know, and Training: e.g. “FOIL requests seeking access to information about the use, impact, and deployment of surveillance technology should be expedited and maximize the information given to the public, and NYPD should not issue rote-denials on baseless rationales such as revealing investigative techniques, inter- / intra- agency materials, and more.” 
  • Technology, Data Sets, and Accuracy: e.g. “NYPD with public stakeholders should focus on developing an ‘accuracy threshold’ and eradicate and/or pause the use of any technology that demonstrates biased inaccuracies in certain populations especially along racial, gender lines.” 
  • Criminal Justice: “Any use of surveillance technology involved in a criminal case should be disclosed to the criminal defendant and counsel as well as the prosecution.”

Comments from our second forum with speakers Laura Hecht-Felella and Brandon del Pozo zeroed in on the following issues: 

  • Third-Party Audits: e.g. “Audit should go beyond just the technology itself, but address the effectiveness, use, and impact of the technology.” 
  • Safeguards and Civil Society Oversight: e.g. “Granting a private right of action that allows individual civilians to take action to hold the police accountable for abuse of surveillance technology that encroaches on civil rights.” 
  • Establishing a “serious crime” threshold for surveillance tech: e.g. “If the NYPD came to lift fingerprints at the scene of every crime, it would be excessive and invasive – similarly, we should not be using technology for minor infractions which gives the government the capacity to invade into our private spheres in life.” 
  • Financial Transparency between tech companies and NYPD: e.g. “NDAs should not be used. The research and development of the technology should be revealed to the scientific community and the public for review after a certain time period, akin to how the NIH and medical science community discloses their research and data to the science community after a period of time. The protected interest in surveillance technology should be the public good, and not the financial interest of tech companies.” 
  • Data Use and Storage Oversight: e.g. “Should we shift our focus from looking at here at 36 technologies to how the technologies collect data and how that data is monetized by use of these technologies?” 
  • Comprehensive Oversight: e.g. “NYPD should explore a comprehensive approach to enhancing oversight ‘through the utilization of an accountability assessment tool that allows an organization to take stock of its surveillance operations, and through the creation of multi-disciplinary Technoethics Boards that could be worked into the process of building and applying surveillance programs.’” 
  • Need for NYPD to Gain Public Trust: e.g. “There is a general mistrust toward the NYPD that is further compounded by mistrust towards the use of technology in policing. But there are crimes that can be prevented if the police worked in better concert with the public and they have not.”
  • Legal Responsibility and Private Right of Action: e.g. “The names of vendors, software firms, and contractors, as well as their roles in developing and deploying the surveillance technology, should be disclosed.”

The final three pages addressed our concerns about what additional information should be disclosed about the use and impact of some of the individual surveillance technologies, like how many cell-site simulators are deployed in each zip code, whether or not images extracted from police body cameras are used in the facial recognition database, and the fact that “DAS comprises more than 20,000 CCTV cameras, police-worn body cameras, license plate readers, radiation scanners, drones, 911 calls, and unknown commercial and interagency intelligence databases, and has real-time tracking capabilities – what oversight is in place for such a mass surveillance system?”

Download our final report and check back for updates and developments on the NYPD’s policies on the use and impact of surveillance technology tools, due to be finalized and released by April 11, 2021.

Final Report: NYPD Surveillance Technology Public Comments [PDF]

Kansas City Black Firefighters’ Decades-Long Battle Against Racial Discrimination

/

For black firefighters in many of Kansas City’s most desireable stations, racial slurs and even physical violence are part of the job. But after decades of lodging racial discrimination complaints, and even many settled lawsuits, the “old white boys club” resists letting the neighborhoods’ firefighters reflect their community.

Kansas City Firefighters Case Highlights Racism in the Firehouse

The racism against Kansas City firefighter Eric Sanders started on day one. The newly assigned staff member brought doughnuts to break the ice, but they were thrown away uneaten. The next year was miserable for Sanders. The white firefighters he was assigned to work with kept him from sitting with them during meals, ridiculed him in front of his coworkers, and used the n-word as part of their casual conversation. One white firefighter testified during a deposition:

“[They] didn’t want n****ers working there, and they thought that n****ers were lazy.”

The racial discrimination continued even after an internal investigation supported his complaint about racial slurs. Sanders had intended to retire with the Fire Department, but after just under a year he had had enough. Describing his working environment as “pure hell”, Sanders was forced to quit. He hired an employment discrimination attorney and sued the department for racial discrimination, harassment, and retaliation.

Black Firefighters Have Been Battling Racial Discrimination for Decades

Sanders is far from alone in his story. Over the years, a number of black firefighters have sued the Kansas City Fire Department for discriminatory practices. Sanders’ case resulted in a $300,000 jury verdict in 2014. Tarshish “T.J.” Jones sued the department for being passed over for promotion six times because of his race. In 2018, Clinton Ragan sued for wage discrimination against himself and other Black firefighters. That same year, Deputy Chief James Garrett settled his own lawsuit for $111,000 after being denied a promotion to fire chief.

In 2019, Sean Tiller filed a complaint after a white colleague, Joshua Alt punched him in the face and bit him. In the internal investigation that followed, Alt was represented by the firefighters’ union. Tiller was not. In April 2020, the City Council approved another $400,000 settlement for firefighter Kevin Hunt, who was denied a promotion to deputy chief.

Report Finds Systemic Firefighter Discrimination in Shifts, Station Assignments

The firefighter discrimination cases give a glimpse into something the Kansas City Star newspaper says is a systemic pattern across the city. A report they published in December 2020 shows that some of the city’s most desirable station assignments are located in racially diverse communities. Station 35, which has a 90% percent Black neighborhood has only 1 black firefighter on the staff. Next door, at the less desirable Station 29, seven of the 13 firefighters are black. Station 23, in a historic and ethnically diverse part of town also has only 1 non-white firefighter. Of the 193 workers over the last ten years, only 3 were black. Because of the dense population around these stations, there are more fires, which leads to more experience, and faster promotions for the firefighters assigned there. These positions were given overwhelmingly to white men.

What to Do When Racial Discrimination is a Way of Doing Business

Kansas City now has a new fire chief, Donna Lake, the first woman in the position. She says the department takes its responsibility to treat all employees fairly seriously. However, it will take time, money, training, and strict enforcement to change a workplace culture where the n-word was part of everyday speech and black firefighters were routinely passed over for high-quality station assignments and promotions.

When racial discrimination is par for the course, it often takes a coordinated effort by several employees to enforce the kind of systemic change needed to shift company culture. While an employer or government agency may be willing to pay settlements to individual employees, the price tag that comes with a coordinated or class action can get more attention, and put pressure on those in charge to make real changes.

At Eisenberg & Baum, we know how hard it can be to overcome decades of racial discrimination. Our employment discrimination attorneys, can help employees file their claims under Title VII and state civil rights laws individually, or as part of a larger class. We will push for system-wide changes, even in workplaces with decades-long histories of harassment. 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 coworkers against ongoing racial bias and poor treatment.

NYPD Use of Surveillance Technology Tools: Submitting Public Comments

/

Thank you for participating in our forums on NYPD use of Surveillance Technology!

Your feedback and comments are at the core of democratic accountability over the use of Surveillance Technology in the City. Your actions and words matter, especially in this brief window of time that we’ve been allotted to give public comments on the Draft Policies.

More than 90 participants from our communities joined to amplify our voice throughout the forums hosted by Eisenberg & Baum, moderated by Juyoun Han (Partner, A.I. Fairness & Data Privacy Department). Special thanks to our panel speakers who led our group discussions:

  • Albert Fox Cahn: Surveillance Technology Oversight Project’s ( S.T.O.P.’s) founder and executive director.
  • Renée Cummings: Data Activist in residence at the University of Virginia and founder of Urban AI.
  • Laura Hecht-Felella: Attorney and policy expert at the Brennan Center for Justice.
  • Phillip C. Hamilton: Trial attorney and litigator, complex state and federal criminal defense.
  • Reyna Lubin: Former Assistant District Attorney at the Kings County District Attorney’s Office and currently an attorney at Eisenberg & Baum LLP’s Center for Deaf and Hard of Hearing.
  • Brandon del Pozo, PhD.: Former Burlington, VT chief of police and 19-year NYPD veteran, current postdoctoral scholar.
  • Ke Yang: PhD candidate in Computer Science at the Tandon School of Engineering at New York University.

Next Steps:
Add your voice now to this invaluable public discourse that will change the trajectory of our city.

Google Form: https://forms.gle/ekjA3SRvSbbUSGsK7

Loading…

Eisenberg & Baum’s AI Fairness and Data Privacy group are compiling and will submit the collective input and comments before the deadline on Feb. 25th.

Thanks to all for participating!

COVID Vaccine May Potentially Cause Discrimination Issues for Employers

/

The COVID-19 vaccines have begun to roll out across the country. That means that some employees are able to return to the workplace, even while others never left. Can your employer require you to take the COVID vaccine or is that disability discrimination? Here are some considerations for employers and employees alike as businesses struggle to get back to work.

COVID-19 and the Americans With Disabilities Act

For the past year, food-service workers, medical professionals, and other essential workers have been negotiating an ever-changing sea of COVID-19 workplace restrictions and requirements. Social distancing, cleaning protocols, mask requirements, and other changes have sought to keep employees and customers safe while still keeping the company’s doors open and the lights on.

COVID-19 has affected more than 24 million Americans (as of this writing). While over 400,000 have died, many more have been sick, recovered, and now seek to return to the workforce. Employers may want to take preventative measures to avoid the spread of the disease. However, the ADA and other laws against disability discrimination still apply.

The Americans with Disabilities Act, the Rehabilitation Act, and other federal anti-discrimination laws limit what employers’ access to employees’ health information, and in many cases prevent hiring and firing decisions based on an employee’s illness or disability. The result is a tightrope of health, safety, and privacy that can easily tip into disability discrimination that hurts everyone — employees and employers alike.

Can My Employer Screen for COVID Symptoms or Make Me Take a Test?

The Centers for Disease Control (CDC) recommends employers screen their employees for COVID symptoms and immediately send home anyone experiencing:

  • Fever
  • Chills
  • Cough
  • Shortness of breath
  • Sore throat

Other health professionals add:

  • Loss of smell or taste
  • Gastrointestinal problems
  • Nausea
  • Diarrhea
  • Vomiting

However, the ADA restricts what medical information an employer may obtain employees. All health-related questions or medical exams must relate to the job and be “consistent with business necessity.”

The Equal Employment Opportunity Commission (EEOC) says that COVID symptom screening questions and mandatory testing are medical exams covered by the ADA. However, they are also necessary to do business in the face of the pandemic. The EEOC says that employers can ask employees if they are experiencing COVID 19 symptoms, take their temperature, or tell them to get a COVID-19 test. However, the results of these medical exams must be protected and can’t be publicly disclosed.

Will I be Forced to Take a COVID-19 Vaccine to Keep My Job?

As the Coronavirus vaccines become more readily available, many employers are considering requiring their employees to receive them as a condition of employment. However, many employees have concerns about the vaccine’s safety, effectiveness, or need. According to the EEOC, mandating a COVID vaccination for employees does not violate the Americans with Disabilities Act because it is not a medical exam or inquiry.

What if I Have a Disability or a Religious Objection?

General concerns about health and safety don’t automatically outweigh employees’ rights, though. Some people are medically unable to receive vaccinations (perhaps due to an allergy). Others may have sincerely held religious beliefs that prevent them from taking the medicine. The EEOC has said that these concerns must be addressed on a case-by-case basis. As with other forms of religious and disability accommodations, the inability to get a vaccine is not automatically grounds to terminate an employee. However, it may be a reason to prevent you from coming into the workplace. Your employer will need to determine whether “reasonable accommodations” can be made, such as:

  • Telework
  • Continued social distancing and cleaning protocols
  • Mandatory masking or face shielding

Unless these accommodations would create an “undue hardship” on the business, your employer must take reasonable steps to allow you to continue to work even without the COVID vaccine.

Best Practices for Employers Considering Mandatory COVID Vaccines for Workers Returning to the Office

Employers are now facing a challenge, balancing disability discrimination laws and the need to protect employees from the coronavirus. Here are some considerations in finding the right balance.

Decide Between Mandatory and Voluntary COVID-19 Vaccination

One way to avoid the case-by-case evaluation of each employee’s vaccination objections is to make them voluntary. Employers who have been operating remotely could, for example, allow employees to return to the office only after receiving the vaccine, but continue to allow telework for anyone who opts out.

Work with Employee Unions to Implement Health Management Rules

If your employers are unionized, vaccination policies will likely require mandatory collective bargaining under a management rights clause. By starting these negotiations well in advance of any mandatory vaccination policy, employers can give their employee unions time to address anxiety around the vaccines and educate employees about their safety and effectiveness. This can increase employee buy-in and help ensure a safe workplace while protecting employees’ rights.

Use a Third Party Vendor for Screening, Testing, and Vaccination to Protect Employee Medical Information

If you decide that mandatory screening, COVID testing, or vaccination is a business necessity, don’t have your own employees perform the medical exams. The screening questions leading up to testing or treatment can create potential disability discrimination violations, even when the actual exam is needed for employees’ safety. By hiring an outside vendor to perform the exams, you shield your employees’ medical information and make sure they don’t face discrimination due to COVID-19.

COVID-19 has created new questions for everyone about health and safety at work. Finding the right balance of employee safety, health, and privacy requires careful attention to the ADA and other disability discrimination laws. Whether you are an employee facing mandatory testing or vaccination, or an employer looking for best practices in a changing legal environment, we can help.

At Eisenberg & Baum, our employment discrimination attorneys, help workers protect their religious rights under Title VII, as well as their health and privacy under the Americans with Disabilities Act, and state civil rights laws. We can help navigate the discrimination issues created by COVID-19 and the rush to get the vaccine into the arms of key employees. If you believe your employer has violated the ADA or are an employer yourself trying to create a policy, contact us. We’ll meet with you and help create a strategy that protects the rights and the health of your employees and coworkers.

Sexual Harassment in Public Calls For a New Campaign: #CrimeNotCompliment

/

Catcalls, following, up-skirting, a “casual” brush against your body: public sexual harassment can take many forms. While New York and other states have public harassment laws baked into their criminal codes, many women and girls don’t know what to do when they are targeted on the street. Here’s what you need to know about your rights in the face of sexual harassment in public.

British Survey Says Over Half of Girls Experience Sexual Harassment in Public

The British girls’ rights organizations Plan International UK and Our Streets Now surveyed 1010 young women ages 14 to 21 and 1000 parents in late 2020. The survey showed that 51% of all the young women experienced harassment over the summer, and 19% had experienced it even while the country was on a Coronavirus lockdown in the spring of 2020. They reported being:

  • Catcalled
  • Followed
  • Groped
  • Flashed
  • Up-skirted (nonconsensual photos are taken up a person’s skirt)

Eighty percent of the parents surveyed were worried their daughter would experience sexual harassment in public, and 10% were worried harassers would target girls younger than 11. Forty percent said they don’t let their daughters go out after dark for fear that they will be sexually harassed in a public space.

Women Speak out Against Public Harassment, Calling it a #CrimeNotCompliment

The survey is part of a new advocacy campaign, #CrimeNotCompliment, spearheaded by Our Streets Now.

“[Public sexual harassment] has become a normal part of being a girl and that is not ok. . . . We have to draw a line in the sand and say we deserve to feel safe and we deserve to be safe in public.”

Maya Tutton, co-founder of Our Streets Now, told Sky News. She and her co-founders are calling for public sexual harassment of girls to be made a specific criminal offense in England. They hope that by creating a single, clear law criminalizing all forms of sexual harassment in public will encourage women and girls to report incidents and raise awareness that the behavior is a crime.

Public Sexual Harassment is Illegal in New York

While in New York, as in England, there is no one statute that applies to all forms of public harassment, there are a variety of crimes that could apply to specific sexual acts committed by harassers. Depending on the words said and actions taken, a harasser can be charged with:

  • Disorderly conduct (for abusive or obscene language or gestures in public, or blocking a street or sidewalk)
  • Harassment, Second Degree (for alarming, annoying, or threatening you at least twice)
  • Harassment, First Degree (for following you at least twice)
  • Stalking (if the street harasser causes you fear of harm or interferes with your life)
  • Loitering (around schools, busses, or camp facilities)
  • Loitering for the purpose of prostitution (if the street harasser solicits sexual activity from you, even as “a joke”)
  • Patronizing a prostitute (for requesting another person to engage in sexual conduct)
  • Unlawful surveillance, Second Degree (for non-consensual photography or filming of your intimate parts, dressing or undressing, or under your clothing)
  • Indecent exposure (if the harasser flashes or exposes themself to you in a public place)
  • Public lewdness (if the harasser flashes or exposes themself intending that you see it)
  • Forcible Touching (if the harasser forcibly touches your sexual or intimate parts to satisfy their own sexual desire or to degrade or abuse you)
  • Aggravated harassment, Second Degree (for physical contact intended to harass, annoy, threaten or harm based on a protected trait like gender or sexual orientation)
  • Hate crime (if any of the above are committed against you because of a protected trait like gender or sexual orientation)

It is up to the police and prosecutors to decide which criminal charges are appropriate. However, if you report a specific crime, rather than a general idea of being harassed, it can improve the way the police respond to your call.

What to Do if You are a Victim of Sexual Harassment in a Public Space

If you are being harassed in public you are entitled to call 911 and report it to the police right away. When the police respond to the scene they are more likely to be able to identify the street harasser and make an arrest.

If the moment has passed, you can still call your local police department’s non-emergency line and report sexual harassment after the fact. If you do, take the time first to remember and write down as many details about what happened as possible including:

  • Exactly where it happened
  • When it happened
  • Who else saw it happen (get their names and contact details if possible)
  • What the street harasser looked like
  • What the person was wearing
  • Where they went when the incident was over

This will help you respond to the police’s questions and improve their chances of finding the person after the fact.

You may also want to talk to a sexual abuse attorney or private victim’s advocate. If the police and prosecuting attorney decide to press charges a victim’s rights attorney will often be assigned to the case. However, a private victim’s advocate can put pressure on police to fully investigate the report and on prosecutors to build and pursue the case. You may even be entitled to restitution or civil compensation for any physical or emotional harm the sexual harassment may have caused.

At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys and sex abuse advocates understand what it feels like to be sexually harassed in public. We know how the New York criminal code and other laws protect young women and others who find themselves targeted for abuse on the streets. Contact us to schedule a consultation at our office in New York City, or over the phone.

Changes Slow in Gaming Industry Companies Despite Growing Sexual Harassment Resignations

/

Sexual harassment in the video game industry has been a problem since the beginning. Gaming industry companies were also one of the first where gender discrimination bubbled into the public view in 2014’s Gamergate. But even as problems continue to go public and sexual harassment resignations grow, experts say that the changes aren’t doing much to address the core problems of representation and diversity in the industry.

eSports Gaming Convention Shuts Down Due to Sexual Harassment Claims

Most conventions, sporting events, and other gatherings were cancelled in 2020. But unlike the many events that closed down to stop the spread of Coronavirus, TwitchCon’s Las Vegas Evolution Gaming Series (Evo) tournament was cancelled for a different reason: sexual harassment. More than 70 people, mostly women, came forward on Twitter, YouTube, the game-streaming platform Twitch, and its blogging platform TwitLonger to report sexual harassment, sexual assault, and gender-based discrimination within the esports gaming industry.

Competitive gamers, commentators, and streamers make their living playing, broadcasting, and commenting on big-name video games like Overwatch by Blizzard Entertainment, Assassins Creed by Ubisoft. Their work is managed by talent agencies including Online Performers Group which operate similar to athletes’ agents, helping esports competitors participate in competitions, find sponsorships, and make their games available online to viewers.

Often, these esports competitions happen in large in-person gatherings, like TwitchCon. Many of the women who came forward said that these conventions are full of non-consensual touching, propositions for sex, and other forms of sexual harassment. They also reported ongoing online sexual harassment and abuse by some of the industries most well-known professional gamers.

Gamer Community Warms to Sexual Harassment Reporters’ Claims

The online gaming community had one of its first public run-ins with sexual harassment in 2014, in an incident that became known as “Gamergate.” When Anita Sarkeesian, a media critic, called out gender discrimination and sexual stereotypes in video games on her YouTube series Tropes vs Women in Video Games, she and others who supported and agreed with her faced severe harassment, including death threats, hacking, and the public distribution of personal information called “doxxing” from within the gamer community.

This time, the response to those who have spoken up has been mostly positive. In the wake of the #MeToo movement and other efforts to uncover gender discrimination and sexual harassment in gaming industry companies, public opinion about diversity in gaming, and within the gaming industry appears to have changed. That has led to some high-level resignations at the top of some major gaming and esport companies.

Gaming Industry Companies Sexual Harassment Resignations Grow

Many of the current round of complaints have involved the CEO of Online Performers Group, Omeed Dariana. In June 2020, Molly Fender Ayala, a community developer for Overwatch said Dariana had sexually harassed her by acting inappropriately and propositioning her for sex in 2014.  According to the New York Times, Ayala wrote:

“‘I feel that it’s my responsibility to speak up,’ Ms. Ayala wrote, so that other women in the streaming and gaming world ‘know that this isn’t “just how the industry is.”’”

Mr. Dariana stepped down from his position at OPG the same day. His response to the allegations is starkly different from the treatment received by Anita Sarkeesian and others who exposed gender inequality just six years earlier. He responded on Twitter saying:

“I do not specifically recall the conversation referenced, but I’m not going to sit here and argue about whether or not it happened . . . . Because I promised I would believe women. Even, and probably most especially when I’m the person being called out. And I do believe her. So as far as I am concerned, this happened.”

Soon after, OPG closed its doors. Clients and performers were trying to terminate their working relationship with the company, and some had already quit over the incident. Dariana’s behavior had tarnished the company’s reputation in a way that one resignation was not going to fix.

Experts Say Resignations Pacify Complaints, but Don’t Solve Gender Problems

While the change in approach of and responses to sexual harassment complaints in the gaming industry is encouraging, many experts are warning that broader change is necessary. Kishonne Gray, a gender and women’s studies professor at University of Illinois, Chicago, viewed the statements as nothing more than attempts to “pacify” people and make them stop talking about the underlying gender problems in the industry. She told the New York Times:

“They just purge the evildoers and think that they’re OK, not realizing that they’re all complicit and that there’s a culture that devalues women.”

Dr. Carly Kocurek, an associate professor of digital humanities and media studies at the Illinois Institute of Technology, said it was too soon to say whether these sexual harassment resignations were signs of a broader cultural shift away from the longstanding sexist attitudes within many gaming companies.

“If you don’t actively try to change these things, they don’t change that much. . . . There’s been a few times where there’s some pushback and there seems to be a real conversation happening, and then it just kind of fizzles.”

The answer for women and others who face gender discrimination and sexual harassment within gaming industry companies is to keep the pressure on, even in the face of executive-level resignations. Who takes the places of those accused of sexual assault and harassment can sometimes be as important as removing the bad actor in the first place. When the survivors of sexual harassment and their advocates come forward, they can push the industry to adjust promotion and advancement policies, making more space for women and people of color at the top of the organizational charts. These placements can push the industry forward, and further the kind of cultural shift the industry so desperately needs.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know how to pressure slow-moving companies and industries to improve their practices and prevent ongoing gender discrimination and sexual harassment. If you work with gaming industry companies or another male-dominated industry and have been sexually harassed by an agent, manager or supervisor, we can help. We will meet with you and review your options to put pressure on employers to change their policies, and get you compensation for the harm you have suffered. Contact us today to schedule a free consultation.

What Do We Think About NYPD’s Use of Surveillance Technology?

/

 

Register Now

NYPD Surveillance Technology Explainer (r) [PDF]

As New Yorkers, we have until February 25th, 2021  to tell the NYPD what we think about the surveillance technology tools — 36 tools like facial recognition and Shotspotter — currently in use by the department and about the policies that they have proposed to govern the use of these tools.

Where Can I find the Draft Impact and Use Policies?

The draft policies have been posted here, and are now available to the public for comment until February 25th.

How Does the Public Commenting Work?

Thanks to the Public Oversight of Surveillance Technologies (POST) Act passed by the NYC City Council last June 2020 in the wake of nationwide protests for racial justice and against police brutality, the NYPD has been required to publish impact and use policies for all existing surveillance technologies that are already in use. (In the future, the NYPD will be required to publish impact and use policies 90 days in advance of implementing any additional surveillance technologies.)

Why Is This Important?

Based on public citizens’ feedback and comments, the NYPD will review, respond to, and make any revisions to the policies before a final version of the policies are published in April 2021.

Who Can Comment?

Anyone can comment. Collectively, this public commenting group will compile comments to the NYPD aggregated throughout our group forums. Individually, you can directly send comments to the NYPD through their email link (postact@nypd.org) provided in the webpage.

 

There are three ways to participate in the public commenting group:

  • Forums (Feb. 10th & 17th at 6pm EST): We’re hosting two group discussion Forums to share knowledge, inspire civic discussion, and gather public comments. We’ll have a Q&A with expert panelists representing technologists, attorneys, criminologists, artists, and civic organizations followed by breakout group discussions.
    • Forum #1: Wednesday, February 10th, 6pm EST — REGISTER HERE
      • Renée Cummings is a criminologist and AI Ethicist. She is the first Data Activist in residence at the University of Virginia, joining the School of Data Science in the fall of 2020. Cummings is a Community Scholar in AI & Criminal Justice at Columbia University, as well as the founder of Urban AI, a Certified Ethical Emerging Tech Examination Developer for CertNexus, and a Founding board member of Springer’s AI and Ethics Journal.
      • Phillip C. Hamilton is an experienced trial attorney and litigator in the areas of complex state and federal criminal defense, civil rights actions, and contractual formation and disputes. Since 2015, Phillip has primarily defended white-collar professionals charged with serious, high-profile offenses. Phillip is also an Adjunct Professor of Law at the Benjamin N. Cardozo School of Law, and regularly guest lectures trial advocacy and negotiation seminars in law schools around the New York City metropolitan area.
      • Reyna Lubin is an associate in the Eisenberg & Baum Law Center for Deaf and Hard of Hearing. Prior to joining the firm, Ms. Lubin was an Assistant District Attorney at the Kings County District Attorney’s Office. At the DAs office, Ms. Lubin dedicated herself to helping victims of domestic violence. Ms. Lubin is a regular speaker on issues relating to domestic violence, police brutality, and racial injustice.
      • Ke Yang is a PhD candidate in Computer Science at the Tandon School of Engineering at New York University and a member of the Visualization and Data Analytics Research Center whose current project examines the impact of technical bias on the model serving in data science pipelines. Yang’s research interests include ethical topics such as fairness, accountability, transparency, interpretability, and the social impact of the algorithms in data science pipelines.
    • Forum #2: Wednesday, February 17th, 6pm EST — REGISTER HERE
      • Details TBA!

 

  • Slack Group: JOIN HERE
    • Share your ideas, resources, literature, and engage in interactive discussion.

 

 

We will also be posting explainers on some of the surveillance tools in use by the NYPD, so check back over the coming days.

 

Thank you for joining us!

Jet Propulsion Laboratory in California Charged for Age Discrimination

/

For years, employees in technology-related industries have told stories about older workers facing age discrimination at work. Now NASA’s Jet Propulsion Laboratory is set to pay $10 million in fines and damages, and make changes in the way hiring and promotions are handled in an effort to combat ageism in technology.

Ageism in the Tech Industry

It’s no secret that the tech industry has a problem with ageism. Facebook CEO Mark Zuckerberg once famously told a room full of Stanford graduates:

“I want to stress the importance of being young and technical. Young people are just smarter.”

Tech industry workers report experiencing the effects of ageism as early as 29, compared to 41 in non-technology related fields. In 2020, a survey by Visier of 330,000 employees from 43 US enterprise-level companies showed that, despite older employees rating among the industry’s top performers, systemic ageism was a problem among technology and development companies. The survey showed that the average tech worker is 5 years younger than the average non-tech worker (38 as compared to 43). Technology industry managers are an average of 42 years old, compared to 47 year old non-tech managers.

The difference is in the hiring. Visier found that tech companies hire a higher proportion of younger workers and a smaller proportion of older workers, compared to non-tech. However, when employers consider an employee or applicant’s age in deciding whether to hire or promote them, they may be committing illegal age discrimination.

Age Discrimination in the Workplace: What’s Protected

Older workers are protected under federal law. The Age Discrimination in Employment Act (ADEA) says that employers may not discriminate against people age 40 or older for being “too old” for a job. Unlike other federal anti-discrimination laws, this protection only goes one way. It is not illegal under federal law to discriminate against workers under age 40, or to discriminate against a person because they aren’t “old enough”.

The ADEA makes it illegal for an employer to consider a person’s old age for any aspect of employment, including hiring, promotions, job assignments, or pay. It also prevents workplace harassment based on age. While the occasional “Okay, Boomer” won’t necessarily result in a successful age discrimination complaint, harassment is illegal if it becomes so frequent or severe that it creates a hostile or offensive work environment. Firing or demoting a worker because of their age is also illegal.

JPL to Pay $10 Million in EEOC Age Discrimination Settlement

That’s what the U.S. Equal Employment Opportunity Commission (EEOC) says happened at NASA’s Jet Propulsion Laboratory (JPL) in Pasadena, California. JPL is a federally funded research and development laboratory and NASA field center, managed by the California Institute of Technology. After receiving more than a dozen complaints from older employees from the research and development company, the EEOC filed a complaint in the U.S. District Court for the Central District of California (EEOC v Jet Propulsion Laboratory, 2:20-cv-03131-CBM-JC). The complaint said that JPL systemically laid off employees over the age of 40 in favor of retaining younger workers, and passed over older employees to rehire less qualified, younger employees in their place.

Then, on June 11, 2020, the EEOC and JPL announced they had come to a settlement in the case. JPL agreed to pay $10 million in fines and monetary relief to the older employees.  It also agreed to a consent decree including three years of EEO supervision, and a variety of proactive efforts to prevent further age discrmination in the labs, including:

  • Hiring an EEO monitor, a diversity director, and a layoff coordinator to monitor compliance with the ADEA
  • Reviewing and revising anti-age-discrimination policies and procedures
  • Training all employees on age discrmination
  • Reporting recruitment, hiring, layoffs, terminations, and age discrimination complaints to the EEOC

Anna Park, regional attorney for the EEOC’s Los Angeles District said in a statement:

“We commend JPL for its willingness to commit to compliance with the ADEA, for already making proactive efforts to implement much of the injunctive relief, and for taking measures that will have a positive impact on older employees,” said  “We encourage other employers to follow JPL’s lead and review their hiring and recruitment policies and practices to make sure they are in compliance with federal law.”

Getting the kind of systemic changes that JPL has promised to make isn’t always easy. Older employees facing age discrimination often must make their case using statistics, hiring trends, and other abstract forms of proof. If you have been laid off, passed over, or not hired because of your age, the employment discrimination attorneys at Eisenberg & Baum, LLP, can help. We will meet with you to review your company’s policy and your options, so you can be compensated for the loss of your career. Contact Eisenberg & Baum, LLP, today for a free consultation.