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Settlement Reached in U.S. Figure Skating Sex Abuse Lawsuit

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Figure skating is one of the most popular sports in the Winter Olympics. Its athletes pair strength and power with beauty and grace. It can be hard to remember that many of the sport’s top competitors are young — often teenagers. Over the last several years the United States Figure Skating (USFS) faced accusations, media attention, and lawsuits because of sexual abuse of its skaters. Now one of those lawsuits has reached a settlement, but the fight to end the coverup continues.

National Figure Skating Organization Covered Up Richard Callaghan’s Sex Abuse

Richard Callaghan used to be one of the biggest names in U.S. figure skating. Now he is one of the most controversial. Callaghan was the coach of Olympic superstar Tara Lipinski when she won her gold medal in 1998. The next year, he faced allegations that he had been sexually grooming his former student, Craig Maurizi, since he was 15 years old.

But those allegations were quickly dismissed — the skating bylaws required all misconduct claims to be reported within 60 days of the incident. Maurizi, a minor at the time, had missed his window. And so, Callaghan kept coaching and, according to the lawsuits against him, kept sexually assaulting the skaters in his charge.

U.S. Men’s Figure Skater Adam Schmidt Settles Sex Abuse Lawsuit

In 2019, skater Adam Schmidt, formerly Baadani, filed a lawsuit in San Diego Superior Court against U.S. Figure Skating, Onyx Ice Arena, and Callaghan himself for “numerous sexual assaults” he suffered while training with the U.S. figure skating team beginning in 1999. That was the same year Maurizi’s complaints against the figure skating coach were dismissed. Schmidt’s complaint said that decision allowed Callaghan’s abuse to “continue unabated,” causing him and other skaters to suffer anxiety, depression, fear, grief, and stress as the victims of sexual assault.

Then, in late 2020, Schmidt and the organization reached an agreement. U.S. Figure Skating agreed to pay the former competitive skater $1.45 million in exchange for dismissing his lawsuit. The settlement, which was accepted by the district court in early 2021, didn’t require U.S. Figure Skating to admit any fault or wrongdoing at all, but Schmidt says:

“I think the settlement speaks for itself. . . . People don’t settle things for millions of dollars for nothing.”

This payment was on top of an earlier settlement with defendant Onyx Ice Arena, located in Michigan, where the alleged sex abuse took place. Onyx also agreed to pay $1.75 million, bringing the total Schmidt will receive to $3.2 million. ABC News called that total “a landmark figure with potentially far-reaching implications.”

Other U.S. Figure Skating Sex Abuse Lawsuits Continue

However, whether those implications will reach far enough to affect Callaghan remains to be seen. After Maurizi’s story went public in 2018, the U.S. Center for SafeSport permanently barred Callaghan from coaching based on complaints filed by Adam Schmidt and three other skaters. However, Callaghan appealed the suspension to an independent arbitrator, and it was eventually reduced to a three-year suspension. As it stands, in 2022, Callaghan will once again be eligible to coach young boys and girls hoping to become U.S. figure skaters.

Still, the fight continues. Maurizi himself has filed a lawsuit under the New York Child Victims Act, against Callaghan, U.S. Figure Skating, the Professional Skaters Association, and the Buffalo Skating Club. He, like Schmidt, says that the skating associations had known of Callaghan’s behavior decades — after all, he had told them about it in 1999 — but they willfully ignored his conduct because he was a successful figure skating coach.

Schmidt’s attorney told the New York Times that U.S. Figure Skating’s failure to apologize was indicative of “institutional arrogance combined with a view of skaters as a disposable commodity.” He continued:

“That’s a toxic brew for an organization that’s supposed to protect children under its care. . . . [I am] very concerned about children in the sport today — that they aren’t safe — and [I] want[] a cultural change in the organization.”

Schmidt’s settlement may have been the right choice for him. It allowed him to put figure skating behind him and find a way forward. But for others, including Maurizi, the fight to hold the industry responsible continues.

At Eisenberg & Baum, LLP, we understand what it takes to confront systems that cover up sex abuse and allow it to continue unchecked. We have a team of attorneys who know how to address sex abuse against professional athletes, and in other coaching arrangements. If you have been abused because of your participation in a sport, we will help you get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Gov. Andrew Cuomo Faces Sexual Harassment Allegations

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New York Governor Andrew Cuomo has come under fire and is facing a call to resign in the wake of several sexual harassment allegations. The claims cut short Cuomo’s previous popularity from his response to the Coronavirus, and show how quickly public perception can change.

Aide Says Governor Cuomo Made His Workplace Unsafe for Young Women

On February 24, 2021, Lindsey Boylan, a former deputy secretary of economic development and special advisor to the New York Governor’s office, published an article on Medium, “My story of working with Governor Cuomo.” The article alleged that the governor had invited her to play “strip poker” and gave her an unwanted kiss on the lips as she was leaving his office. She described her working environment with Cuomo saying:

“Governor Andrew Cuomo has created a culture within his administration where sexual harassment and bullying is so pervasive that it is not only condoned but expected. His inappropriate behavior toward women was an affirmation that he liked you, that you must be doing something right. He used intimidation to silence his critics. And if you dared to speak up, you would face consequences.”

Boylan had previously posted several tweets about Cuomo’s harassment, but in the midst of the more pressing news in December 2020, they had not received much attention. When Andrew Cuomo’s name came up as a possible candidate for U.S. Attorney General for the Biden Administration, she knew she had to do more.

Governor Guomo’s intimidation and abuse was a well-known secret among the New York political scene. Boylan reported that Assemblymember Ron Kim had spoken out publicly about the way he was treated while Mayor Bill de Blasio said, “the bullying is nothing new.” In reporting her own harassment, Boylan said she was one of many, but that most were too afraid to speak up.

Five More Step Forward with Sexual Harassment Allegations

Ms. Boylan’s article rallied several other former-staff members to come forward with their own stories. Charlotte Bennette, had resigned her position as an executive assistant and health policy advisor in November 2020. She told the New York Times that he had questioned her sex life, including asking whether she had ever had sex with older men. Andrew Cuomo allegedly commented that he would be willing to have a relationship “with anyone above the age of 22.” Ms. Bennett is 25. She said:

“I understood that the governor wanted to sleep with me, and felt horribly uncomfortable and scared.”

Anna Ruch came forward on March 1, 2021, saying that in September 2019, she had met Governor Cuomo at a wedding reception. She said Cuomo put his hand on her bare lower back. When she removed it, Cuomo called her “aggressive,” put his hands on her cheeks, and asked if he could kiss her. A friend nearby caught a picture of the moment.

Ana Liss, another former aide, reported that the governor asked if she had a boyfriend, kissed her hand, and greeted her by saying “Hey, sweetheart,” before hugging her and giving her a kiss on both cheeks. According to the USA today:

“In an interview, Liss said she was ‘not claiming sexual harassment per se,’ but felt the administration ‘wasn’t a safe space for young women to work.’”

Karn Hinton’s story is older. She worked as a consultant with Andrew Cuomo when he was the federal housing secretary under Bill Clinton in the 1990s. She said he called her to his hotel room where the conversation turned personal, ultimately resulting in an uncomfortably long and intimate hug.

Finally, the Times Union reported an unnamed female aide experienced direct sexual assault while in Gov. Cuomo’s employment. She reported that he reached under her blouse and groped her. That woman, apparently still employed by the governor’s office has reported his behavior to her supervisor, and an investigation is ongoing.

Democrats Call for Cuomo’s Resignation Following Sexual Harassment Claims

The allegations of sexual harassment and assault against Governor Andrew Cuomo have triggered a state-level investigation, as well as a political response from Cuomo’s fellow Democrats. Governor Cuomo issued a statement apologizing for any pain he may have caused, suggesting his joking remarks about his employees’ personal lives and relationships may have been “misinterpreted” as “unwanted flirtations.”  He told reporters:

“Women have a right to come forward and be heard and I encourage that fully. . . . But I also want to be clear: There is still a question of the truth. I did not do what has been alleged. Period.”

Cuomo has authorized New York Attorney General Letitia James to appoint outside investigators, Jooh H. Kim, a former acting U.S. attorney and Anne L. Clark, a labor law attorney, to follow up on the allegations.

But several New York politicians aren’t satisfied. The State Assembly has launched an impeachment investigation through its Judiciary Committee. Thirteen of the state’s congressional representatives, including the influential Alexandria Ocasio-Cortez and state Senate Majority Leader Andrew Stewart-Cousins, have called for him to resign. However, Cuomo refuses, saying those calling for his resignation are being “reckless” and “bowing to cancel culture.”

Responding to Sexual Harassment by Elected Officials

Government employees, including aides and policy advisors, are entitled to the same protections against workplace sexual harassment as other workers. This includes having their employer (the State) investigate their claims and take reasonable steps to prevent future abuse. However, when the harasser is an elected official, the internal response is limited. In those cases it may take an impeachment or a recall to remove the offending government employee.

That can be difficult when the politician in question is as popular as Andrew Cuomo. The Governor enjoyed a popularity bump due to his public statements in response to the Coronavirus in the first half of 2020. Now, in response to Ms. Boylan and her fellow aides’ allegations, it appears public opinion has begun to turn, improving the aides chances of receiving real relief for the sexual harassment and abuse they experienced while working for him.

At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment within government offices. If you are a staffer facing discrimination, contact us today to schedule a free consultation.

State Bar of Washington Mishandles Employee’s Harassment Claim

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The State Bar of Washington — the organization that oversees and regulates all lawyers in the state — received a scathing report, criticizing how it mishandled the investigation of an employee’s sexual harassment claim. Find out what happened, and what employees can do when board members take advantage of their position.

WSBA Staff Member Accuses Board Member of Sexual Harassment

The Washington State Bar Association (WSBA) has a public mission to “serve the public and the members of the Bar, to ensure the integrity of the legal profession, and to champion justice.” The WSBA is a mandatory bar association, overseeing more than 40,000 attorneys and legal professionals across the state. But when in 2018, a staff member came forward alleging sexual harassment against a member of the Board of Governors, a recently released report says that the Bar’s response was anything but just.

Kara Ralph only been employed by the WSBA for a month. She had come on as the association’s events and sponsorship specialist, and was helping to put on a bar event and retreat at a hotel in Walla Walla, Washington in July 2016. After dinner one evening, Ms. Ralph was sitting alone at the hotel bar when newly elected board member Dan’L W. Bridges sat down with her and struck up a conversation. Ms. Ralph reports that early in the conversation, Mr. Bridges told her that while he was married, he didn’t believe in being monogamous.

Ms. Ralph said when she eventually left the bar, Mr. Bridges followed. He got into the elevator with her and rode past his floor saying he wanted to go to Ms. Ralph’s room. When the elevator reached her floor, Ms. Ralph stepped out first. She remembered telling Bridges that if he got out of the elevator “we’re going to have a problem.”

WSBA Mishandles Claim of Sexual Harassment in the Workplace

Ms. Ralph’s story came forward two years later, in 2018, when she told then-board member Athan Papailiou what had happened at a legal conference. Papailious in turn reported the incident to WSBA leadership. The board hired Jillian Barron, an employment lawyer, to investigate the incident. Barron found Ms. Ralph’s story credible, reporting that Mr. Bridge’s account of the incident “evolved” over her two meetings with him. However, she also reported that there had been no other reports of sexual harassment since that time. Ms. Barron did not say whether Mr. Bridges had violated any laws or WSBA policy, or recommend any disciplinary actions.

It was what the WSBA did with that report that raised eyebrows within the legal community. The board went into a private-session meeting to discuss the report. Mr. Bridges was included in that meeting and allowed to defend himself both verbally and in writing, including many misstatements of Ms. Barron’s findings. Immediately after the private session, the board moved to public session where they elected Mr. Bridges as the board treasurer for 2018-2019 in a contested election.

State Supreme Court Orders Review of Botched Investigation

On January 18, 2019, 34 out of 150 staff members signed onto a letter calling on the Board to review its policies and create better systems for future sexual harassment reports. A few days later, a similar letter was set to the State Supreme Court.

As an employer, the Washington State Bar Association had the same obligation to take reasonable steps to investigate and respond to allegations of sexual harassment. Those steps likely include giving the accused and the accuser the same access to the decision-making body, and having clear criteria for when removal of a board member, staff member or volunteer was appropriate. The employees argued that making its decision in a closed-door meeting and letting Mr. Bridges participate, the WSBA created a hostile work environment and discouraged other staff members from coming forward with future incidents.

“From our perspective, a colleague disclosed an allegation of harassment by a board member and the board’s response to that disclosure resulted in a process that lacked proper oversight, transparency, and consideration of our colleague’s safety and well-being,” the letter said.

Chief Justice Mary Fairhurst of the Washington Supreme Court responded by appointing an independent investigator, Beth Van Moppes, to review the allegations that the Bar had created a hostile work environment. Ms. Van Moppes interviewed board members, staff, and others, and reviewed other information about the incident. In the resulting report, she criticized the board for not taking action against Mr. Bridges even after Ms. Ralph’s complaints were found credible.

“To a reasonable person outside the board, it appeared that the [board] had voted to promote an individual they knew had committed inappropriate conduct and was deemed less than credible.”

She also found Bridge’s participation in the meeting “egregious”, finding it more likely than not “that the working environment for the WSBA employees was hostile, intimidating, and insulting, as a result of the board’s failures.”

Board Arrangement Complicates Sexual Harassment Claims

One issue addressed in Van Moppes’s report was whether the board was responsible for the investigation, or just the Executive Director. Boards of directors can play different roles in companies and organizations. Some have more control over workplace operations while others are simply advisory. Because board members are not employees of the company, when they sexually harass employees this lack of formal employment complicates an already difficult sexual harassment claim.

During Ms. Van Moppes’s investigation, several board members raised this as a defense. Van Moppes rejected their efforts to narrow the scope of her investigation. The EEOC Guidance on Employer Liability for Harassment says that a hostile work environment can be created by non-employee conduct. That, together with the frequent communication between board members and staff at WSBA, showed that the Board of Governors’ actions could and likely did create a hostile work environment for its employees, including Ms. Ralph.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have dealt with harassment by boad members before. We know how to fight claims that employers cannot hold board members responsible for their actions, and when to file a claim with the EEOC or state human rights offices to protect the employees of organizations like state bar associations. Contact us to schedule a consultation at our office in New York City, or over the phone.

David Haas Hymns Banned by Catholic Churches After Sexual Harassment Accusations

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Sometimes it doesn’t take a lawsuit to get real relief as a victim of sexual harassment and sex abuse. The multiple victims of Catholic composer David Haas demonstrated that sometimes a victim’s advocate can make a big impact even when legal issues may stand between the victims and the courthouse. As a result of their advocacy, Haas’s hymns have been banned from Catholic churches in 10 archdioceses nationwide.

Almost 40 Women Raised their Voices Against Catholic Composer David Haas

In music, there is a big difference between a single voice singing a solo and a chorus of harmonious voices. While one singer can make an impact, a choir in full voice can shake the building. The same is true when advocating for social changes. One woman or man speaking about one incident may get some attention, but when dozens of women come together to tell the same story, people listen. The survivor advocacy group Into Account has assembled a chorus of 38 women, all of whom allege that they were sexually harassed or abused by religious composer David Haas. According to Susan Bruhl, one of the women represented by Into Account:

“David has this uncanny knack of finding girls who don’t have fathers at home, who may have come from an abusive background or were neglected.”

A New York Times article told the stories of six of those women (four anonymously). According to their stories, Haas approached several of these women early in their church music careers, sometimes as teenagers. They accuse Haas of:

  • Buying alcohol for an 18 year old girl and inviting her to his hotel room because “you’re a woman now.”
  • Grooming an employee at his music summer camp and treating her like a servant
  • Sending inappropriate Facebook messages to a parish music director
  • Pushing a woman against a wall
  • Forcibly grabbing, groping, and kissing several women
  • Pressuring an 18 year old workshop attendee into committing sexual acts

One of his victims, now a cantor in a Catholic parish, says she suffered a panic attack after the incident when she had to sing one of Haas’s songs during a church Mass.

Why Court Might Not be an Option for the Haas Victims

While the ladies’ stories are compelling there are a number of reasons they may have trouble raising sexual harassment claims in court. As the New York Times notes, no civil or criminal charges have been filed against Mr. Haas. That may have to do with how long ago the incidents occurred, interactions falling outside the formal employer-employee structure, and problems holding religious leaders accountable for workplace discrimination and harassment.

Compelling Stories, Told Too Late

The earliest formal sexual harassment complaint against has dates back to 1987, when the Archdiocese of St. Paul and Minneapolis received notice of “unwanted sexual advances toward a young adult woman.” Ms Bruhl’s complaints date back even earlier, to 1984.

In many states, the statute of limitations for complaints like these may only be a few short years. Here in New York, it used to be that child sex assault victims had to file their claims within 5 years of turning 18.  However, more recently, the New York Child Victims Act has allowed young women and men time to mature and heal before heading to court. These complaints can now be filed anytime before the child victim turns 55 years old.

Catholic Composer, Not Employer

Another legal challenge for some of David Haas’s victims comes in defining their relationship. Under federal law, an organization like the Catholic Church only needs to respond to sexual harassment complaints involving employees. But David Haas was not formally employed by the Church. As a composer, his working relationship with parish cantors and music directors was more like an independent vendor. That difference could block federal complaints filed under Title VII. However, the New York State Human Rights Law is broader. Since 2018, the law has protected contractors, vendors, consultants, and anyone providing services in a business, not just its employees.

Catholic Music Performer and the Ministerial Exception

Perhaps the biggest hurdle for those seeking a lawsuit against David Haas comes from his role within the religious organization of the Catholic Church. Earlier this year, the United States Supreme Court ruled that teachers were “ministers” for the purposes of applying federal employment discrimination protections. It prevented the former teachers from suing their Catholic school employers based on the “ministerial exception” to Title VII and the First Amendment. While David Hass does not appear to be an ordained minister, under the court’s decision, the ministerial exception applies to anyone who has the responsibility of teaching religion and participating in religious activities. That could apply to a writer and performer of Catholic songs like Haas.

Victim Advocacy Prompts Catholic Archdioceses to Ban Popular Hymns

The victims of David Haas’s sexual harassment and assault aren’t letting legal obstacles stop them from holding him accountable. Described as a “rock star in the Catholic liturgical realm,” Haas, has long been able to make up his own rules. For example, after his ex-wife divorced him in 1995, she faced retaliation in the liturgical music world, even though she too had been a victim of his sexual assault as a teenager.

In spite of all this, the victims are still pressuring the Catholic Church for change. They emailed a letter to church leaders, publishers, and liturgists explaining what they faced. As a result, 10 archdioceses from across the country have banned their churches from using David Haas songs. Liturgical publishers OCP and GIA Publications have cut ties with him, and his music has been pulled from a Mennonite hymnal called “Voices Together.” In addition, his local archdiocese now prohibits him from performing at Masses and other events, and it has not renewed his letter of suitability, which would allow him to perform elsewhere within the Church.

These steps show that even when a lawsuit isn’t the right option, victims of sexual harassment and abuse can get their stories heard and sometimes even be compensated for what they have suffered. At Eisenberg & Baum, LLP, we have sexual harassment and sex abuse attorneys who know how to approach these claims from all sides: legal, regulatory, negotiation, and publication. We can help you consider the strength of your legal case in New York and federal courts, and what other options you may have to make your voice heard. Contact Eisenberg & Baum, LLP, today to talk to an attorney.

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

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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

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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.

Betsy DeVos’s Title IX Rule Survives Students’ Rights Lawsuit

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Since shortly after taking office in 2017, U.S. Secretary of Education Betsy DeVos has made it a priority to change the way sexual harassment was handled in public K-12 schools, colleges, and universities. When DeVos’s Title IX rules became final in May 2020, students’ rights organizations weren’t happy. They filed a lawsuit within a week, but now that lawsuit has been dismissed. Find out what the Title IX rule means for students, and what’s next for student sex abuse advocates across the country.

What is Title IX of the Education Amendments Act of 1972?

Title IX of the Education Amendments Act is a federal law that was designed to protect students from discrimination at school on the basis of sex. Any K-12 school, college, or university receiving federal funding (nearly all of them) had to put in place procedures to respond to claims of sex discrimination.

In the 1990s and up through the Obama Administration, the Department of Education started issuing Title IX rules, called “Dear Colleague” letters, that said clearly that Title IX applied to sexual harassment as well. These Dear Colleague letters set out the process for responding to student survivors’ reports of sexual harassment and abuse. They also allowed a school to be held responsible if its administrators failed to appropriately respond to students’ complaints.

What Do Betsy DeVos’s Title IX Rules Mean for Student Survivors?

The federal government has stopped releasing data about sexual assault among school children. However, in the 2015-2016 school year, about 9,700 students reported sexual assault, rape, or attempted rape within their school districts. However, the DeVos Title IX rules could cause the number of reports to go down, even if the number of incidents doesn’t.

According to Betsy DeVos, the new Title IX rule “balances the scales of justice” by protecting the due process rights of those accused of sexual harassment or sexual assault. In fact, the rules make it harder and more embarrassing for student survivors to come forward by forcing them to confront their abusers in an open, in-person hearing where the abuser or his or her attorney can “confront” the victim, interrogating them. This ignores the trauma sex abuse survivors have suffered and that trauma’s psychological impact on survivors, including their memories, and how they interpret what happened to them.

The rule also redefines sexual harassment and increases the burden of proof from a mere tipping of the scales (preponderance of the evidence) to the highest level of proof required in civil court (clear and convincing evidence). Now, victims must prove that they suffered “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity. Because many instances of sexual harassment and sex abuse happen in private, this can create problems for survivors who have little more than their own stories to prove their case.

On top of all this, the rule also forgives schools who look the other way. A Title IX violation only occurs if the school is “deliberately indifferent” to this new tighter standard of sexual harassment. This will only aggravate the experiences student survivors are having already trying to get schools to take their allegations seriously. Without accountability, schools will find reasons to give abusers another chance or even disregard the reports entirely, even when there is severe mental, emotional, or physical harm to their students.

Judge Dismisses Students’ Rights Organizations’ Title IX Lawsuit

Because the new rule tips the scales in favor of abusers and schools against the victims of sexual harassment and assault, when the rules became official in May 2020, several students’ rights organizations were ready to file a Title IX lawsuit to get the new rules thrown out. The American Civil Liberties Union (ACLU), Know Your IX, the Counsel of Parent Attorneys and Advocates, Girls for Gender Equality and Stop Sexual Assault in Schools, filed a lawsuit in the federal District Court in Maryland saying that the way Betsy DeVos created the Title IX rules violated that state’s Administrative Procedures Act.

But on October 20, 2020, U.S. District Judge Richard Bennett threw the case out. He dismissed the complaint saying that the students’ rights organizations were not directly harmed by the rule, and didn’t have “standing” to sue. The advocacy groups had argued that the new regulations ran counter to their objectives and that they would have to divert resources to train activists in response to the rules. However, the judge said they could not provide evidence of an increase in training requests or additional spending.

What’s Next for Title IX Regulations?

The ACLU’s lawsuit may have been the first to challenge DeVos’s rules, but it won’t be the last time those rules show up in court. The attorneys general from 17 states and the District of Columbia have filed their own lawsuit trying to keep the policy from going into effect. The State of New York has filed a separate complaint as well. So far, judges have been hesitant to act, but these lawsuits don’t have the same standing issues as the one filed by the students’ rights organization.

That means they are likely to continue well into the next year. The incoming Biden Administration has already indicated it may be looking for ways to put a “quick end” to the policies and “return to and then build on” the Dear Colleague” letters from the Obama Administration. While the formal rule-making process for education policies is long and complicated, a settlement in the attorneys general case may provide quicker relief to student survivors and their advocates.

At Eisenberg & Baum, LLP, our sexual harassment attorneys and sex abuse advocates help students facing sexual harassment on campus. If you are facing a hostile educational environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.

SCOTUS Rules Federal Employment Discrimination Laws Do Not Extend to Catholic School Teachers

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The United States Supreme Court handed down two decisions interpreting federal anti-discrimination laws this year. In Our Lady of Guadalupe School v Morrissey-Berru, the Supreme Court ruled that federal employment discrimination laws do not extend to teachers at Catholic schools under the “ministerial exception.”

Catholic School Teachers Claim Age, Disability Discrimination

Agnes Morrissey-Berru and Kristen Biel each say that their contracts as Catholic school teachers were not renewed for discriminatory reasons. Morrissey-Berru taught fifth and sixth grade at Our Lady of Guadalupe School (OLG), a primary Catholic school in Los Angeles. In 2014, OLG reduced her role from full-time to part-time. The next year, it declined to renew her contract. Morrissey-Berru filed a claim with the Equal Employment Opportunity Commission (EEOC) saying that OLG’s actions were motivated by a desire to replace her with a younger teacher in violation of the Age Discrimination in Employment Act (ADEA). OLG’s response to her complaint was similar to many ADEA cases: that an older employee was having difficulty adjusting to a new program — in this case, reading and writing.

Kristen Biel was also a Catholic school teacher in Los Angeles, teaching first and then fifth grade at St. James School. When St. James declined to renew her contract she too filed charges at the EEOC. Biel claimed that the Catholic school had violated the Americans with Disabilities Act after she requested a leave of absence to receive treatment for breast cancer. St. James’ defense said she failed to observe the school’s planned curriculum and keep an orderly classroom.

Federal Employment Discrimination Laws and the Freedom of Religion

If the two plaintiffs had been public school teachers, their claims of age and disability discrimination would have been squarely within federal anti-discrimination laws. But because Morrissey-Berru and Biel worked for private religious schools, the schools said that they were immune to the federal discrimination laws under the First Amendment’s freedom of religion.

Federal anti-discrimination laws, including the ADA and the ADEA are designed to protect employees nationwide against hiring, firing, and other employment decisions because of who or what they are. The Age Discrimination in Employment Act protects older workers from actions that favor younger employees. The Americans with Disabilities Act prevents discrimination based on a person’s current or past medical condition or treatment.

However, all federal laws must fit within the boundaries set by the United States Constitution. That includes the First Amendment, which says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Supreme Court has said that means federal law can’t interfere with religious institutions’ ability to decide matters “of faith and doctrine.” As Justice Alito explained in the Court’s recent decision:

This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.

In the context of employment discrimination laws, this is called the “ministerial exception.” It means that secular courts can’t get involved in employment disputes involving “ministerial” positions within religious institutions.

SCOTUS Opinion Expands Ministerial Exception Beyond Ministers

Until now, the ministerial exception has been defined narrowly. An earlier SCOTUS decision, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, laid out four factors in deciding that the exception applied to a “Minister of Religion, Commissioned” in a Lutheran private school:

  • Title
  • Extent of religious training
  • The employee’s holding herself out as a minister within the church community
  • Responsibility to teach religion and participate in religious activities

In reviewing Morrissey-Berru and Biel’s cases, the Ninth Circuit Court of Appeals had applied these four factors, and found that teachers at Catholic schools didn’t qualify as ministers. However, on July 8, 2020, the United States Supreme Court decision in Our Lady of Guadalupe School v Morrissee-Berru overturned the Ninth Circuit and expanded the ministerial exception by changing the way a person’s role was evaluated.

In a 7-2 opinion (with only Justices Sotomayor and Ginsberg dissenting), the Supreme Court said:

“What matters, at bottom, is what an employee does.”

The fact that Morrissey-Berru and Biel were titled teachers, not ministers, didn’t matter. Nor did the fact that neither of them had gone to seminary or received much formal religious education. The Court didn’t even mention whether the ladies held themselves out as ministers (presumably because they did not), though it did say it was not the court’s job to decide if the plaintiffs were “co-religious” with the school’s teachings. Instead, the Court focused almost exclusively on the religious aspects of the plaintiffs’ work as teachers in Catholic schools:

  • That they taught all subjects, including religion
  • That they took religious education courses at the schools’ request
  • That they were expected to attend prayer
  • That they prayed with their students
  • That they worshipped with their students
  • That they prepared their students for Mass, Confession, and Communion rites
  • That they took their students to Mass
  • That the employment agreements they signed defined the school’s mission as “to develop and promote a Catholic School Faith Community”
  • That their employment was evaluated based on Catholic faith and morals

Based on all these factors related to the plaintiffs’ job descriptions, the Court found:

“As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.”

Therefore, the ministerial exception applied to the plaintiffs’ cases, and the federal discrimination laws did not.

The ministerial exception can feel like a wall standing between employees of religious institutions and their rights. However, the federal processes it applies to are not the only option to get relief. At Eisenberg & Baum, LLP, our employment discrimination attorneys know how to work with the law, and employers, to get employees the relief they need. We can  negotiate with religious institutions and, when necessary, fight back against ministerial exception defenses to make sure your rights are protected, and your needs met.  Contact Eisenberg & Baum, LLP, today to talk to an attorney.

The Invest in Child Safety and EARN IT Acts Aim to Fight Online Child Sexual Exploitation

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The number of child pornography images online is growing exponentially. Addressing online child sexual exploitation has become a congressional priority. With several bills competing for representatives’ and senators’ votes, including the Invest in Child Safety Act and EARN IT Act, the question seems to be less whether a federal law will be passed, than which one.

45 Million Images of Child Pornography Prompt Action

According to a New York Times investigation, in 2018, there were 45 million photos and videos of child sexual abuse material online. That number was nearly double the images found in 2017. Every one of those images is a crime, and every one has a victim.

The victims of child pornography face ongoing trauma as their images circle the internet. The children used in exploitive imagery grow up never knowing who around them has seen them at their most vulnerable. Strangers stalk them. Prosecutors and police contact them years, even decades later, after their images are found in another pedophile’s hard drive.

The Fight Against Online Child Sexual Abuse

Child pornography has long been illegal across the country under both state and federal laws. By 2008, the federal government knew it needed to do more. With less than 1 million online child pornography images, Washington passed the PROTECT Our Children Act. The law empowered the Attorney General and the Department of Justice to coordinate with state, local, and nonprofit entities to coordinate child exploitation prevention efforts and implement national monitoring and assessment. The law came with a $30 million appropriation to cover the cost of personnel and equipment.

However, as the numbers of child exploitative images increased, the personnel and funding did not. Law enforcement agencies now find themselves underfunded and ill equipped to keep up with the demand for investigations. In addition, the national coordinator position at the Department of Justice was never given the full authority described in the law, limiting its effectiveness.

At the same time, technology companies such as Microsoft and Google, resist cooperating with police during these investigations, often based on privacy concerns. In their place, private companies like Clearview AI have created software for police to use in investigating child exploitative materials. But when these programs turned to identifying victims, rather than perpetrators, sex abuse victims’ advocates raised privacy concerns of their own.

Congress Raises Competing Bills to Stop Online Child Exploitation

With the release of the 2018 statistics, Congress seems ready to make another attempt in creating federal regulation to fight online child sexual abuse. But representatives and senators don’t seem to agree on how to get that done. The result is several bills that take different approaches to prevention.

The END Child Exploitation Act Pushes Companies to Cooperate with Law Enforcement

The first bill proposed in response to the New York Times investigation was the END Child Exploitation Act. This bill was very small in scope. It doubles the time communications companies must retain child sexual abuse materials they find on their platforms. The hope is that this would give local law enforcement more time to investigate child pornography charges. This bill was introduced on December 10, 2019, by Ohio Representative Anthony Gonzalez, but has not yet moved out of committee.

The EARN IT Act Opens the Door for Decryption During Child Sexual Abuse Investigations

On March 5, 2020, Senator Lindsey Graham of South Carolina presented the “Eliminating Abusive and Rampant Neglect of Interactive Technologies Act” or EARN IT Act. The bill put the burden of stopping online child sexual abuse on technology companies. It would create a 19-member commission to create a set of standards and give tech companies a strong incentive to follow them.

Generally speaking, social media companies and search engines are not legally responsible for the content their users add to their sites. However, companies that don’t follow the EARN IT Act standard could lose that protection. This would allow sex abuse victims to sue the technology companies for failing to take reasonable steps to screen for and remove child exploitative imagery.

The bill was approved by the Senate Judiciary Committee on July 2, 2020, and is now up for consideration by the Senate as a whole. However, privacy advocates and the tech industry are lobbying against it. They are concerned that the commission may endorse compelled decryption of user data or a government encryption backdoor for use in law enforcement investigations. Attorney General William Barr has called for these kinds of “lawful access” to encrypted information, but advocates are concerned that this could lead to unconstitutional invasions of privacy in the name of criminal investigations.

Invest in Child Safety Act

On May 6, 2020, Senator Ron Wyden of Oregon proposed his own bill, the Invest in Child Safety Act. Unlike the EARN IT Act, Wyden’s bill would focus on law enforcement rather than tech companies. The bill would increase federal funding by $15 million and create a Senate-confirmed director for the program. The bill would allow federal, state, and nonprofit agencies to increase staffing and update equipment, while also increasing accountability to make sure prevention efforts were effective.

“You put somebody working in the same building as the president and that means you got somebody to actually hold accountable for success and failure,” said Mr. Wyden.

The Invest in Child Safety Act is still being considered by the Judiciary Committee. However, without the tech companies opposing it, this bill may have the best chance of becoming law in the future.

At Eisenberg & Baum, our sexual abuse attorneys to stand beside child victims and their families against their abusers and the social media companies. We make it a priority to follow changes in federal and state laws so we can best protect your loved ones. Contact us today to schedule a free consultation.

Me Too Movement Shared as Part of Political Campaign

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The survivors of sexual assault often feel that their voices and their stories go unheard, prompting the recent Me Too Movement. This year one Virginia woman made her #MeToo experience the focal point of her political campaign, telling potential constituents that she knows what it’s like to feel voiceless, and now she’s speaking out.

Democrat, Mother, Survivor, and Marine Tells Her Story

Claire Russo is a 40 year old combat veteran. She served in Iraq and Afghanistan before returning home and eventually running for Congress in southern Virginia. She is also a rape survivor. That was the story she told to her potential constituents in a campaign video released in May 2020.

In 2004, while serving in the military, Russo attended the Marine Corps Ball where she was drugged and raped by a superior officer. The Marine Corps refused to charge her abuser, or allow her to transfer to another military base. She spent years trying to bring her abuser to justice. She took her case to civilian court with the San Diego district attorney’s office. Eventually, her attacker pleaded guilty to sodomy and was sentenced to three years in prison.

Even that conviction wasn’t enough to get the military to treat Russo’s sexual assault seriously. About halfway through his prison sentence her abuser received an honorable discharge from the Marines, even while she continued to serve her country.

Virginia Democratic Candidate Makes Sex Abuse a Focus of Her Campaign

When Ms. Russo decided to run in a southern Virginia congressional race, she could have focused on her military service record, her role as a mother, or any other part of her history. Instead, she chose to make the story of her rape the center of her campaign. She created a video that told her story, starting with a black screen and the year, 2004, and very quickly telling viewers, “I was raped.”

See the campaign video.

She sees this story as a crucial part of what she would bring to the office. Ms. Russo used a significant portion of her advertising budget to distribute the video, hoping to connect with voters who felt excluded and unheard.

“I have been someone whose voice has been silenced. I have been someone who was denied justice,” Ms. Russo [told the New York Times]. “It is important to show the voters in this district that we can win and that we can take power back.”

Ms. Russo’s video was the first time a political candidate featured her personal recollection of rape. Ms. Russo lost her 2020 election primary on June 23, 2020, pulling just over 18% of the vote. However, her campaign shows the influence the Me Too movement has on politics, and casts a light on sexual harassment among and against the nation’s elected officials.

The History of the Me Too Movement in Politics

Ms. Russo’s campaign ad is part of a long line of sex assault stories within politics. When the Me Too movement went viral in 2017, there were several politicians accused of sexual harassment:

  • Senator Al Franken (Democrat, Minnesota) resigned due to allegations from 6 women
  • Representative John Conyers (Democrat, Michigan) resigned due to allegations from a former staffer
  • Representative Blake Farenthold (Republican, Texas) settled a sexual harassment lawsuit filed by a former aide
  • Representative Ruben Kihuen (Democrat, Nevada), apologized for allegations of sexual touching during his 2016 campaign
  • Representative Trent Franks (Republican, Arizona), resigned under allegations by staffers

Sexual harassment also played a significant role in the 2016 presidential campaign. After video was released showing now-president Donald Trump openly talking about sexual assaulting women, his opponent, Hilary Clinton made it a campaign issue, saying:

“What we all saw and heard on Friday was Donald talking about women — what he thinks about women, what he does to women.”

Following that debate, a number of women came forward, saying “me too”, raising their own allegations of sexual assault and inappropriate behavior against the current present.

By the 2018 midterm elections, the Me Too Movement was in full swing, and the Democratic Party had made its messages part of the party platform. Democrats running for office set themselves apart, contrasting themselves with the allegations of sexual assault against the President, and his Supreme Court nominee, Brent Kavanaugh.

The Nation Wrestles with Sexual Harassment in Politics

Even though Ms. Russo is no longer in the race, sexual assault and harassment promises to remain a hot topic in the 2020 election cycle. Earlier this year, before Ms. Russo’s ads aired, Tara Reade accused Democratic presidential front-runner Joe Biden of inappropriate sexual touching. Ms. Reade worked as a staff assistant in Biden’s Senate office. She said that Mr. Biden had sexually assaulted her in 1993, pinning her against a wall and reaching under her clothing to touch her. Others have also come forward saying that Mr. Biden had kissed, hugged, or touched them in ways that made them feel uncomfortable. The New York Times investigation into the issue “found no pattern of sexual misconduct by Mr. Biden.”

However, the way the Democratic Party has addressed Ms. Reade’s allegations have caused some to claim hypocrisy. In the three years since the Me Too movement Biden and other Democrats have expressed a zero-tolerance position against sexual misconduct, positioning the party as “for women, by women.” That position paved the way for Ms. Russo and other political candidates to come forward and tell their stories of sexual abuse and harassment. Now that there are allegations of the same nature against the presumptive head of the party, gender issues, sexual abuse, and the Me Too Movement promises to play an important part of the campaign leading up to November 3.

Political staffers and federal government employees face sexual harassment and abuse just like in any other part of society. At Eisenberg & Baum, our sex abuse attorneys take every story seriously. If you have been the victim of sex abuse by a superior, colleague, or anyone, we will listen to your story and help you get justice against your abuser. 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.