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Is Zoombombing Illegal Sexual Harassment?

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

What is Zoombombing?

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

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

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

Is Zoombombing Illegal Sexual Harassment?

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

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

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

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

Can Employers Stop Unwanted Sexual Imagery on Video Conference Calls?

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

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

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

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

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

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

Victims Raise Sexual Harassment Charges Against Progressive Methodist Pastor

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

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

Inter-Faith Conference Leads to Unwelcome Sexual Advances

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

Professional Promises and False Claims of Relationships

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

Threats of Deportation After Dating Relationship Ends

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

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

Christian Morality Standards and an Ex-Wife’s Charges

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

United Methodist Church Settles Complaints in Just Resolution

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

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

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

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

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

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

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

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

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

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

Victims Need Advocates to Make Their Voices Heard

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

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

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

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

#MeToo Abusers Use Defamation Lawsuits to Silence Accusers

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

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

Defamation and Reputational Harm

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

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

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

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

Sexual Misconduct Survivors Turn Defamation Cases in Their Favor

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

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

Defamation vs Retaliation Claims in Sexual Misconduct Cases

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

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

At Eisenberg & Baum, LLP, we have a team of attorneys who know how to fight back against sex abuse and sexual harassment. Led by Attorney Adriana Alcalde, our sexual abuse attorneys will stand beside you when your abuser tries to use a defamation lawsuit to silence you. We’ll help you get the justice and compensation you deserve. Contact us today to schedule a free consultation.

EEOC Sexual Harassment Claims Drop in 2019

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

EEOC Releases 2019 Enforcement and Litigation Data

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

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

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

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

Total Claims, Sex Discrimination Charges Show Continued Drop in Enforcement

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

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

When Should You Skip Filing an EEOC Complaint?

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

You Work for a Very Small Company

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

You Want to Continue in Your Current Position

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

Your Claim is Better Protected Under State Statutes

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

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

What Sexual Harassment Looks Like When You Work From Home

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

What Counts as Sexual Harassment

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

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

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

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

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

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

What Sexual Harassment Looks Like When You Work From Home

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

Emails from Supervisors or Bosses Requesting Sexual Favors

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

Coworkers Sending Sexts or Video-Chat Exposures

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

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

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

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

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

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

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

Britt McHenry Says Sexual Harassment Continues at Fox News

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

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

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

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

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

Two days later, he sent another:

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

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

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

New Sexual Harassment Claims Show Ongoing Problems at Fox News

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hostile Work Environments Build Over Time

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

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

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

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

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

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

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

Quitting and “Constructive Termination”

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

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

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

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

When and Where Should Your Sexual Harassment or Assault Case be Filed?

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When your work takes you on the road it can sometimes create uncomfortable or even dangerous situations between coworkers. When a hotel stay or a trip overseas for work turns into a case of sexual harassment or assault, it may be hard to tell when and where the case should be filed.

Matt Lauer, the Sochi Olympics, and New York Sexual Harassment Claims

In 2017, long-time NBC news anchor Matt Lauer was fired from his position after the company received a complaint raising sexual harassment and abuse allegations against him. Brooke Nevils, a former NBC producer, said that Lauer raped her in a hotel room while they were covering the 2014 Winter Olympics in Sochi, Russia. She says that she was too drunk to give consent to his sexual advances, and that she refused his requests for the particular sexual act requested. Ms. Nevils’s attorney said that when the news team returned to New York, pressure and fear that she would lose her job at NBC kept her from reporting the sexual harassment to their mutual employer. Instead, their sexual involvement continued back in the states.

Then in 2017, Nevils and a number of other women began interviewing with various news outlets anonymously to voice their concerns against the host of the Today show and other NBC staples. When the network learned of those interviews, it began its own investigation. Then Nevils’s attorney filed a formal complaint with NBC on November 27, 2019, and two days later, Lauer was fired.

Where Would Lauer’s Sexual Assault Case Be Filed?

Now, Nevils’s story has shown up again — this time in the book Catch and Release by Ronan Farrow. In the wake of recent changes in the way New York handles sexual assault cases, some are asking whether the book is a lead in to a lawsuit. As of yet, no federal or state case has been filed.

Some of that may be because it isn’t clear whether New York would have the authority to hear the case. In general, criminal and civil cases resulting from rape, sexual abuse, or other assaults must be filed in the location where the act occurred. Since the specific rape allegations happened in Sochi, Russia, it would be the Russian authorities who would have to file charges. Even if Nevils were to make a report with the New York police, they would be required to send the information overseas for prosecutors there to deal with.

However, there is some possibility that Lauer’s coercive and non-consensual sexual activity didn’t stop at the U.S. border. If Nevils were to raise objections that her continued relationship with the news anchor resulted in additional sexual abuse here at home, that behavior could still result in a civil lawsuit under the state’s new extended window to file a case.

Can a New York Court Address Nevils’s Claims of Sexual Harassment and Abuse?

Where any potential lawsuits must be filed is only one half of the issue. The question of when that case must be filed is just as important. Every civil cause of action (right to sue) comes with an expiration date. You only have so long after an offense occurs to resolve your issues or take it to court. These limits are called statutes of limitations.

When the victim of sexual harassment and abuse is an adult at the time of the incident, the New York statute of limitations for filing a civil lawsuit against the abuser is just 3 years. In Nevils’s case, NBC made a reasonable response to Nevils’s complaint of sexual harassment by a coworker. However, if it had not, she would only have had a few short months to file a claim with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act.

The Sochi incident is said to have happened during the 2014 Winter Olympics. That means under state law, Nevils would have needed to act no later than 2017 under New York law. However, if their relationship continued to meet the criteria for sexual harassment or abuse after the news team returned to the states, Ms. Nevils may still have time to make her case.

Ms. Nevils’s story shows that it can sometimes be difficult to tell when and where your sexual harassment and abuse lawsuit needs to be filed. It also shows how waiting too long to come forward can cut off your right to go to your employer, the EEOC, or the courts to get the remedies you deserve and to protect your professional career.

If you have been the victim of sexual harassment or abuse, don’t wait until it is too late. At Eisenberg & Baum, LLP, we have a team of attorneys who know how to fight back against sex abuse and sexual harassment. We will help you tell your story and get the justice and compensation you need before the time runs out. Contact us today to schedule a free consultation.

New York State Legislators Tighten Sexual Harassment Laws, Again

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Earlier this year, the New York state legislature held its first hearings on sexual harassment and gender discrimination in nearly 50 years. Now Senate Bill 6577, the product of those hearings, has been signed into law. That means tighter sexual harassment laws and better protection for domestic workers, independent contractors, and workers in small businesses.

In this blog post, I will discuss Senate Bill 6577, which tightens sexual harassment laws under the New York State Human Rights Law. I will explain how the new law, together with those that went into effect in January 2019, will expand the definition of employer and protections for non-employee workers, as well as making it easier to prove sexual harassment claims against employers and abusers.

New York Legislature Listens to Sexual Assault Victims

New York state legislators hadn’t taken the time to hold hearings on the state’s sexual harassment laws since 1992. But after a shift in state politics, the issue of sexual harassment and gender discrimination finally pushed its way to the fore. The legislators considered a set of anti-harassment bills designed to tighten sexual harassment laws and provide protections to previously under-served workers. The state senate heard from survivors, advocates, and legislative aides who had worked together to push for sexual harassment reform. At the end of the day, the vote was 109 to 19 in favor of the new law. Senate Majority Leader Stewart Cousins said:

“New York’s outdated sexual harassment laws have silenced survivors for too long. As lawmakers, it is our responsibility to protect survivors and work to improve the standards and culture in the workplace. . . . This legislation works to close loopholes, extend the statute of limitations, and ensure that sexual harassment policies are clear for all employees across the public and private sector. I applaud Senator Biaggi for her unrelenting advocacy on this issue.”

Senate Tightens Sexual Harassment Laws

The new laws, some of which are already in effect and others of which will roll out in 2020, tighten the state’s Human Rights Law against discrimination and sexual harassment. They also put in place protections for some of the state’s most disadvantaged workers.

Changing the Standard of Discriminatory Conduct

One of the biggest changes in the new law is the removal of the “severe or pervasive” standard from discrimination and retaliation cases. This means that employers won’t be able to claim that what happened “wasn’t that big a deal” as long as a reasonable person would have been offended by the behavior.

Shielding Workers from Oppressive Internal Complaint Processes

The law also removes the “Faragher-Ellerth” defense, which means skipping the internal complaint process will no longer doom a plaintiff’s claim. This is especially important in small businesses where the owner is likely close to the person committing the abuse, or may be doing it themselves.

Giving Victims More Time to Come Forward

The law also extends the period when employees can report sexual harassment at work. Complainants now have up to three years to come to grips with what has happened, gather their evidence, and make their case.

Protecting More Kinds of Workers

Workers in the smallest of small businesses and independent contractors often have trouble asserting their rights under established state and federal laws. Limits on the number of employees a company must have to qualify under the law and the definition of what an employee was cut many workers off from the protections available to everyone else. The new law expands protections to domestic workers, independent contractors, and the employees of small businesses, removing exceptions and expanding the definition of an “employer” or “employee” under state law.

Making Multilingual Training a Reality

The law will also expand requirements in the January 2019 state budget that require notice of state-mandated sexual harassment prevention policies in workers’ native languages. The January law said that, in some cases, anti-harassment training must be provided in secondary languages when enough employees of the same ethnic background work at the company. These protections are crucial to protecting immigrants and migrant workers who are often afraid to come forward and report sexual harassment and gender discrimination.

Limiting Non-Disclosure Agreements and Arbitration Agreements

The legislature also recognized that larger companies can often pressure their workers into silence through back-door deals and mandatory arbitration agreements. The new law bans the use of mandatory arbitration clauses for all discrimination claims, giving workers their day in court. It also severely limits how non-disclosure agreements may be used, giving workers time to fully read and understand what they are agreeing and removing the pressure to sign away their right to talk about what happened to them.

Giving Discrimination Lawsuits Teeth Through Attorney Fees and Punitive Damages

In addition to making it easier for sexual harassment victims to come forward, the new laws also made the cost of violating them more serious. By requiring judges to award attorney fees to prevailing plaintiffs and allowing them to impose punitive damages, the law keeps larger companies from simply chalking up discrimination claims as a cost of doing business.

Making the Most of New York’s New Anti-Harassment Laws

This set of laws are clearly designed to make it easier for the victims of sexual harassment and gender discrimination to come forward. They make it more costly for employers who ignore their responsibilities to investigate and respond to discrimination at work, and make sure no one falls through the cracks because of the size of the company they work for.

But even with all these protections, proving discrimination and harassment isn’t easy. The sexual harassment attorneys at Eisenberg & Baum, LLP, have decades of experience helping the victims of workplace harassment get the compensation they deserve. We know how to make the most of state and federal laws and can help you build your best case. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

EEOC Settlement Requires Sexual Harassment Training in Spanish

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When you operate a multi-ethnic company, you can’t always assume that your employees will speak enough English to understand their rights when it comes to reporting gender discrimination and sexual harassment. A recent settlement by the EEOC requiring a grocery store to perform sexual harassment training in Spanish and the requirements of the 2019 New York State Budget both show that civil rights protections don’t depend on English literacy.

In this blog post, I will describe a settlement between the Equal Employment Opportunity Commission (EEOC) and Foodtown Supermarket responding to complaints of verbal and sexual harassment. I will explain how the settlement agreement included a promise to provide sexual harassment training in Spanish. And I will discuss how this mirrors a New York State law that sometimes requires training in the native language of minority workers.

Misconduct at Grocery Store Leads to Sexual Harassment Training in Spanish

Workers at Foodtown Supermarket, in Elmhurst, New York, faced a difficult decision: endure their department manager’s sexual advances, or take a risk that they would be fired for resisting them. They also faced language barriers and concerns that coming forward could put their status as immigrants at risk. However, two female workers overcame those concerns, filing complaints with the EEOC. They said they had suffered repeated, severe sexual harassment, including:

  • Comments on their looks
  • Sexual propositions
  • Forced kissing
  • Unwanted sexual touching

When they resisted the manager’s advances, they were fired. The EEOC investigated the employees’ complaints, and tried to settle the claim with Food Corp., the legal entity behind Foodtown. But eventually the EEOC was forced to file suit on September 30, 2018.

Negotiations didn’t stop there, though. On August 13, 2019, the EEOC announced that they had finally reached a settlement with the grocery store. They entered into a three-year consent decree, meaning the court will supervise the company’s conduct over the next several years, to be sure they live up to their promises. Those promises include:

  • Paying $285,000 to the workers
  • Adopting new sexual harassment policies and proceedures
  • Training managers and staff on how to identify and prevent sexual harassment and retaliation
  • Offering sexual harassment training in Spanish

Immigrants Have the Right to Be Free from Sexual Harassment at Work

The last aspect of this settlement is possibly the most noteworthy. It reflects the difficulty immigrants often face in understanding and exercising their rights when they don’t fully speak the language. Trainings offered solely in English can only go so far in empowering workers to stand up for their civil rights and report sexual harassment at work. EEOC New York Regional Attorney Jeffrey Burstein said in a statement about the settlement:

“Many employees, especially low-wage and immigrant workers, fear reporting sexual harassment. It took great courage for these women to come forward and participate in this case.”

Many immigrants are also concerned about coming forward in the current political climate. Even those who are lawfully present fear that by reporting sexual harassment their legal immigration status may come under scrutiny and they may be improperly detained or deported. Undocumented immigrants’ fears are even greater. Even though they have the same right to be free from harassment at work, many undocumented workers feel they cannot come forward or report the abuse they suffer to federal agencies for fear of being separated from their families and deported.

New York State Law Requires Sexual Harassment Training in Spanish, or Other Languages, Based on Employees’ Needs

In those cases, it can be comforting for New York workers to know that their state’s Human Rights Law and other civil rights statutes give them even more protection than Title VII of the federal Civil Rights Act. In particular, the 2019 State Budget requires every New York employer to provide annual sexual harassment training to all of its employees. This training should include information on how to report abuse, employees’ rights if they have been harassed, and what they can do to help prevent future discrimination. When a company’s staff is made up of at least 10% of the same non-English-speaking minority group, the state law requires that training to be offered in a language their employees understand.

Perhaps it was the New York training requirements that made the EEOC push for sexual harassment training in Spanish as part of its settlement with Foodtown Supermarket. Or maybe it was simply a desire to protect immigrant workers from such severe forms of sexual harassment. Whatever the reason, by including bi-lingual sexual harassment training as part of their settlement, the EEOC has sent a message that immigrant workers deserve to be treated fairly at work, no matter what language they speak.

At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how to protect your employment rights, without putting your immigration status at risk. If you are an immigrant worker facing sexual harassment or gender discrimination we will help you file the necessary claims at the state or federal level, and, if necessary, represent you in court. Contact us to schedule a consultation.