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Justice Kavanaugh Faces Calls for Impeachment Following New Sexual Misconduct Claims

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When new sexual misconduct claims went public in September 2019, Justice Kavanaugh, a recent addition to the United States Supreme Court faced calls for impeachment. What would it take to remove a seated justice? Will this new evidence of sexual harassment change anything?

In this blog post, I will discuss the most recent allegations of sexual misconduct against Supreme Court Justice Brett Kavanaugh. I will review the history of Kavanaugh’s appointment and discuss what options advocates have for impeachment now that he has been confirmed onto the Justice on the Supreme Court.

Sexual Misconduct Allegations Against Justice Kavanaugh Date Back to College at Yale

One year ago, on October 6, 2018, Brett Kavanaugh was sworn into the United States Supreme Court. His confirmation hearings in the U.S. Senate had been rife with allegations of sexual misconduct, sexual harassment, and sexual assault. Dr. Christine Blasey Ford provided extensive testimony about how Kavanaugh sexually assaulted her during their time at Yale University, including acting as her own expert on the effect of traumatic experiences on the brain and memory. Ultimately, the Senate was not convinced. Kavanaugh was confirmed by a narrow margin (50 to 48), and allowed to take the bench as a U.S. Supreme Court Justice.

Even then, Dr. Ford wasn’t the only woman claiming Kavanaugh’s days at Yale had been filled with drunken frat parties and sexual misbehavior. Two other women, Deborah Ramirez and Julie Swetnick, also came forward alleging Kavanaugh had engaged in sexual misconduct as a teenager. However, the Senate instructions to the FBI to investigate the allegations were extremely limited, and ultimately Ramirez and Swetnick were not even permitted to testify about their experiences.

New York Times Publishes Sexual Assault Details FBI Couldn’t Investigate

The Senate may have been able to control the scope of the FBI investigation into Justice Kavanaugh, but it could not keep the news media from digging further into the issue. Reporters Robin Pogrebin and Kate Kelly spent 10 months investigating Deborah Ramirez’s claims before publishing articles and a forthcoming book, “The Education of Brett Kavanaugh: An Investigation.”

In their investigation, they learned that Deborah Ramirez was one of the first women of color to attend Yale University as part of its diversity program in the 1980s. Coming from a conservative Catholic middle-class household, she was not prepared for the drinking and sexual play that happened in the dormitories and frat houses. In her freshman year, she attended a drunken dormitory party with Kavanaugh, who was also a freshman at the time. She says Kavanaugh “pulled down his pants and thrust his penis at her, prompting her to swat it away and inadvertently touch it.”

The response to Dr. Ford’s testimony about Justice Kavanaugh’s sexual misconduct, which was objectively more serious and violent, said that if something so outrageous had happened, it would have been “the talk of the campus”. While many senators and FBI investigators found Dr. Ford credible in her own right, Ms. Ramirez’s story has that corroboration investigators were looking for. At least 7 people, including Ms. Ramirez’s mother remember hearing about the Yale incident before Justice Kavanaugh became a public figure. That includes two classmates who heard about it days after the party. However, because of its narrow instructions, the FBI could not interview these people, even when they reached out directly to testify on Ms. Ramirez’s behalf.

The Times investigation also revealed another similar story told by a classmate Max Stier. He saw Kavanaugh pull down his pants and watched as friends pushed his penis into the hands of a female student. That student has chosen not to come forward.

Democratic Legislators Call for Justice Kavanaugh’s Impeachment

In the wake of the Times report, several Democratic legislators including Senators Elizabeth Warren, Kamala Harris, and Bernie Sanders, have called for Justice Kavanaugh’s impeachment. U.S. Supreme Court justices serve life-time appointments once they are confirmed by the Senate. So unlike other politicians who can be voted out for misconduct, justices must be impeached.

The process to impeach a Supreme Court justice is the same as it is to impeach and remove a President. First, the House of Representatives must begin an impeachment investigation, where it will hear testimony and review the evidence against the justice. If they House votes to impeach (by a simple majority), the Senate must hold a trial. For a justice to be removed from his seat, two thirds of the Senators must vote in favor of impeachment.

While the President can be impeached for “treason, bribery, or other high crimes and misdemeanors”, Supreme Court justices are held to the ambiguous standard of “hold[ing] their offices during good behavior.” What that means is up to the federal legislature. If Justice Kavanaugh’s confirmation hearing shows anything, it is that legislators have very diverse opinions about sexual misconduct and good behavior, especially when that behavior happened years ago while Kavanaugh was in college.

It is unclear whether Democrats’ calls for impeachment will gain any traction in the midst of the other political turmoil of the day. Unless it does, Ms. Ramirez, Dr. Ford, and the other women who faced sexual misconduct at the hands of the future U.S. Supreme Court Justice will likely be cut off from receiving any justice of their own.

At Eisenberg & Baum, LLP, team of sexual abuse attorneys work with the victims of sexual misconduct and assault to seek justice for them and their families. We can meet with you and your family at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation through criminal sexual assault charges and civil lawsuits. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

Can You Record Your Coworkers’ Sexual Harassment at Work

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When it comes to lawsuits for discrimination and harassment, the proof is often “he said, she said.” That is, unless what he or she said was recorded. But can you record your coworkers’ sexual harassment at work? Or will doing so violate other New York privacy laws?

In this blog post, I will discuss New York eavesdropping and wiretapping laws and how they come into play in sexual harassment cases. I will address the rules for in-person and telephone conversations, and answer the question of whether you can record your coworkers’ sexual harassment at work, along with whether you are protected if you do.

Proving Sexual Harassment Requires, Well, Proof

When sexual harassment happens at work it can be intimidating, demeaning, and hurtful. Depending on who is targeting you, standing up to your coworker or manager can even put your job on the line. When you are finally able to come forward, you may feel like you have done enough. Human Resources, the Equal Employment Opportunity Commission (EEOC) or your attorney should take it from there. But it’s not enough to simply say something happened. Whenever you are able, you need to prove your side of the story.

In a sexual harassment lawsuit, the person filing the lawsuit (the Plaintiff), is the one who initially has to prove his or her case. While some court battles are won just on the testimony of the parties, more often, you and your attorneys will have spent months gathering proof to support your side of the case. That could include witnesses, emails and printouts of office chat logs, workplace reports or assessments, security camera footage, and sometimes recordings made by the Plaintiff themselves.

Is Recording Your Coworker “Wiretapping”?

Many types of sexual harassment lend themselves to physical proof. Statements made in emails or company chat programs can be printed. Inappropriate pictures can be photographed. But what about verbal sexual harassment? The best proof of this kind of behavior is to catch them in the act, but is it legal to record your coworker’ sexual harassment at work?

New York’s wiretapping law is a “one-party consent” law. That means it is illegal to record or eavesdrop on a telephone conversation or in-person discussion unless at least one party to that conversation agrees to it. That one party can be the person doing the recording. To consider how the wiretapping law applies to workplace sexual harassment, let’s look at a sample scenario:

Maria and Clara are housekeepers at a large hotel. They both are repeatedly harassed by two of the cleaning staff, Tony and Juan. The men make rude jokes to each other about the women, grab them as they go past, and repeatedly ask both women on dates to local strip clubs. Maria and Clara are both planning to file complaints with the hotel, but they want to record the men’s behavior first. They both have a habit of using their smartphones to listen to music and drown out the men’s comments, so they decide to use a voice-recording app to document what they experience.

Can Maria Record Tony’s Unwanted Advances?

Let’s start with the most straightforward way to record your coworkers’ sexual harassment at work: when the harasser is talking directly to you. In this case, Maria is a party to the conversation — Tony has come up to her and is talking to her. Since she consents to the recording, the New York eavesdropping law does not apply and she can legally record the conversation.

Can Clara Record Tony and Juan’s Jokes?

Now let’s say that Clara comes upon Tony and Juan joking about the girls among themselves. In this case, she is not a party to the conversation, just an observer. Under the “one-party rule”, unless either Tony or Juan has agreed to the recording, it is illegal for Clara to use her app to document their jokes. However, if she joins the conversation, possibly by objecting to their jokes, she can become a party to it and consent to the recording of anything once she has joined in.

Can Maria Video Record Juan Sexually Harassing Clara?

Maria and Clara want to try to document the physical sexual harassment they experience, as well. They agree to record each other any time Tony or Juan are around to try to catch them in the act.

Under New York law, employers and individuals have an implied right to use video recordings in public places, including the workplace. The only exception is in areas where a person would reasonably expect privacy (like bathrooms or locker rooms). However, this law allowing video surveillance doesn’t overrule the eavesdropping statute, so generally employer-placed cameras will be video-only. In Maria and Clara’s case, they agreed to record each other ahead of time, so when Juan approaches Clara and tries to reach under her skirt, Maria is well within her rights to hit record on her phone.

A Sexual Harassment Attorney Can Help You Collect Proof for Your Case

Knowing what you can and cannot do to record your coworkers’ sexual harassment at work can be difficult. And getting the state eavesdropping law wrong can have serious, even criminal consequences. That’s why it is a good idea to talk to a sexual harassment attorney early. At Eisenberg & Baum, LLP, our sexual harassment attorneys can help you create a plan to collect evidence of your harassment and prepare to 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.

Sexual Harassment: Do You Have a Right to Publicly Name Your Harasser?

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For some survivors of sexual harassment and sexual abuse, going public with what happened to them is part of the healing process. But if your employer or the organization involved refuses to disclose the name of the person who abused you, do you have the right to publicly name your harasser yourself?

In this blog post, I will discuss a New York Times article about confidentiality in the context of the Catholic Church sexual abuse scandal. I will discuss whether you have a right to publicly name your harasser, and whether a reasonable employer response can include publicity about your situation. I will also discuss how non-disclosure agreements and settlement agreements can affect your right to go public about what happened to you.

Catholic Diocese Release Names of Abusive Priests, But Not All of Them

In the year since Pennsylvania released a grand jury report naming over 300 predator priests within the state’s Catholic Churches, the pressure has been on local diocese to come forward. Victims advocate groups including the Survivors Network of those Abused by Priests (SNAP) have been pressuring local bishops to release the names of clergy credibly accused of sexual abuse and sexual harassment. They have had mixed success.

In January, 2019, Texas bishops named nearly 300 priests credibly accused of abuse. A month later, Catholic leaders in New Jersey released an additional 200 names. The archbishop of Hartford, Connecticut added another 48 names to the list around the same time. In April, in the midst of a New York State attorney general’s investigation, the Archdiocese of New York published a list of 120 accused clergy members.

But there have been other subdivisions within the Catholic Church that have refused. The Rockville Center diocese in Long Island, New York, is among them. One of the largest dioceses in the country with 1.5 million Catholics, the organization has refused to join the movement toward transparency in responding to the sex abuse and sexual harassment crisis within the church. It claims doing so would be “premature” while the investigation is ongoing, and that doing so could do additional harm to the victims of sexual harassment and abuse within the church.

As a Sexual Harassment Victim, Can You Publicly Name Your Harasser?

But in many cases, it is those victims themselves who are demanding that the church publicly name their harassers. The New York Times quotes Donald H. Nohs, a religious expert and a survivor of sexual assault by a priest at the age of 13, who says:

“You’ve got to recognize the root cause and weed it out. . . . You’re not going to stop it if there’s not full disclosure.”

With some parts of the religious organization trying to dodge the bullet, the question becomes whether sexual assault and sexual harassment survivors have the right to publicly name their harassers. Public disclosure of a sexual harasser in the workplace can be part of an employer’s reasonable response to claims of abuse. However, often companies and organizations resist victims’ request to release the names, worried about the effect that may have on their reputation and public image. Do victims need to wait for the employer to make a public response, or can they go to the press directly?

This conversation has come up before in the context of private, secular employers like The Weinstein Co., Fox News, and even then-presidential-candidate Donald Trump. Generally speaking, the victims of sexual harassment have a right to publicly speak about what happened to them, and to publicly name their harasser. They do not have to wait for the employing organization to step forward.

However, when they do so, survivors should be prepared to back up their claims. Ideally, public statements about a person’s sexual harassment or abuse should come along with or after the filing of a complaint with the Equal Employment Opportunity Commission or in federal court. Otherwise, the person speaking out could end up facing a lawsuit of their own, claiming libel or slander and saying that she or he made everything up. By pairing the public statement with a formal complaint, sexual harassment survivors can be sure they have a process to prove what they are saying is true outside of the “court of public opinion.”

Don’t Accidentally Give Up Your Right to Go Public

But sometimes, contracts with private employers can accidentally give up an employee’s right to go public with harassment or abuse. Broadly worded non-disparagement agreements, mandatory arbitration agreements, confidential settlements of claims, and especially non-disclosure agreements can cut off a person’s right to speak freely about what happened to them, and who did it.

That’s why it is so important for the victims of sexual harassment and abuse to receive the help and advise of experienced employment discrimination attorneys before they go public. Public disclosure of sexual harassment and abuse can be key to raising awareness and finding others who share your story. But if you aren’t careful, you could accidentally violate a contract you may not even realize you signed. Before you publicly name your harasser, be sure to have a sexual harassment attorney review all your paperwork, to make sure there’s nothing stopping you from speaking out and telling your story.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know when and how to help you publicly name your harasser after an incident of sexual harassment or assault. We know what to look for and can help you develop a plan to go public while protecting your right to compensation for the harm done to you. We will meet with you to review your situation and your options, so you can complete the healing process. Contact us today to schedule a free consultation.

What to Do When Sexual Harassment Targets Teenage Workers

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Whether as summer jobs or shifts after school, teenagers are increasingly part of the workforce. In fast food restaurants, grocery stores, and offices across the country, teens interact with older supervisors and managers that teach them what it means to be an employee. But when the lessons turn sour, young employees can learn the wrong message. They may never hear what to do when sexual harassment targets teenage workers.

In this blog post, I will review a lawsuit by the Time’s Up Legal Defense Fund against McDonald’s for sexual harassment targeting teenage workers. I will discuss how minors can pursue Title VII civil rights claims, and what their parents need to know to protect their rights.

Young Employees Work in Industries with High Sexual Harassment

Teenagers’ early working environments are more than just jobs, they are classrooms. They teach teens how to be employees and what is expected of them at work. So when sexual harassment targets teenage workers the lesson comes out all wrong, teaching young employees that sexual harassment and violence is normal, when really it is illegal.

Teenage employees often find their first jobs in hospitality or retail. Unfortunately, these industries have the highest number of sexual harassment complaints of any public sector. Between 2005 and 2015, 14.23% of all sexual harassment charges filed with the Equal Employment Opportunity Commission (EEOC) can from the hospitality and food services industry. 13.44% were from retail trade companies. One study of adolescent employees showed that 63% of girls and 37% of boys who work part-time have experienced sexual harassment by supervisors, coworkers, and others at work.

Teenage Workers Have Protection Under Title VII

When sexual harassment targets teenage workers, it triggers all the same protections as if the victim had been an adult. Teens (and their parents) expect their employers to take it seriously when they report sexual harassment by superiors or coworkers. If they don’t, underage employees can file complaints with the EEOC or in federal court through their parents for sexual harassment, gender discrimination, and any retaliation that happened after they reported the conduct to their employers.

That’s exactly what the Time’s Up Legal Defense Fund (housed at the National Women’s Law Center), the labor group Fight for $15, and the American Civil Liberties Union have done. Earlier this year, the organizations filed 23 new complaints against McDonald’s on behalf of employees facing sexual harassment: 20 with the EEOC and 3 federal lawsuits. The legal action included four teenage workers, including Brittany Hoyos.

Parents May Not Hear About Sexual Harassment Until It Is Too Late

Brittany didn’t tell her parents about what was happening at work at first. When she started working at McDonald’s at age 16 in 2016, she said her manager began harassing her almost right away. He touched her hair, brushed up against her, texted her about her appearance, and even tried to kiss her after offering her a ride home. But she hid the behavior. Her complaint says:

“I was embarrassed. . . . I felt like I was at fault or that I had done something wrong.”

It was her first job. She told the New York Times interviewer:

“I just thought that was something you would have to put up with.”

But when she came home from work crying, her parents learned that she had been suffering months of verbal harassment. They contacted the franchise, demanding that the manager be held accountable. Instead, Brittany became the subject of retaliation, according to the complaint. She was eventually fired. Her mother, who also worked at the restaurant, also came under fire for standing up for her daughter’s rights. She lost her management training as was demoted to a minimum-wage crew member with fewer hours. Eventually, she quit too.

It is not uncommon for teenage workers to stay quiet when they become the targets of sexual harassment. As Dr. Heather Hlavka, a professor of criminology and sociology at Marquette University, explained to Slate:

“But among teenagers, reporting is very, very low. Because developmentally, you start to be aware of all these cultural things and barriers that stand in your way. But you know, no matter what your age, you always want to be included. You don’t want to feel isolated or like you don’t belong, whether it’s high school parties, fraternity parties, college campuses, or your workplace. And if you report people who are close to you, you could lose all of that, not to mention get someone close to you in trouble.”

What to Do When Sexual Harassment Targets Teenage Workers

That is why it is so important for parents to act when they do learn of sexual harassment targeting teenage workers. Support your daughter or son, making sure they know this kind of behavior is not okay. Encourage them to object to the behavior at work and to talk to their supervisor. You should also help them by sending a written complaint to the manager or owner of the business, requesting action against the offending employee. If and when your teen starts to experience retaliation, you need to be there for them through that too. Make sure they know you don’t think it is their fault.

You should also talk to an experienced employment discrimination attorney as soon as you believe the employer isn’t going to respond to your complaints. At Eisenberg & Baum, LLP, our sexual harassment attorneys can help you and your teenager review what happened, and understand your legal options. We will help you file a complaint with the EEOC or federal court against the corporation or franchise owner, and we will be there to help you get the relief you deserve. If you or your child are facing sexual harassment at work, contact us today to schedule a free consultation.

Common Examples of Workplace Harassment

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You may have the feeling you’re being harassed at work, but you’re not sure whether you have an actual legal claim. There can be a difference between what one individual employee feels is harassment and what constitutes illegal harassment under federal, state and local laws. Merely being bothered by a supervisor or co-worker, while unfortunate for an employee, does not necessarily mean you have a legal claim for harassment. Workplace harassment has a very specific definition under the law. We’ll discuss that definition and give some common examples of harassment in the workplace.

If you have experienced what you believe to be harassment at your job, these examples can help you understand some of the types of harassment that lead to a legal claim. If you’d like more guidance on your rights, contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help and advocate on your behalf.

What Is Workplace Harassment Under the Law?

Harassment can be a form of employment discrimination under various federal, state and local laws. In order to be considered discrimination, the harassment must be based on some protected trait — some aspect of who the employee is, rather than his or her behavior or performance on the job. Under federal law, those traits include:

  • Race or Color,
  • National origin,
  • Sex or Gender,
  • Pregnancy,
  • Age,
  • Religion,
  • Disability, and
  • Genetic information.

Many state and local governments have enacted similar anti-discrimination laws which overlap with the federal protections. New York State’s Human Rights Law adds protections for discrimination or harassment based on a person’s:

  • Sexual orientation,
  • Gender identity
  • Marital status,
  • Arrest and conviction record,
  • Military status or service,
  • Religious observance of Sabbath,
  • Political activities,
  • Unemployment status, and
  • Status as a victim of domestic violence.

Illegal workplace harassment under the state or federal law happens when an employee suffers unwanted conduct based on a protected trait and either:

  • The employee had to endure the conduct in order to keep their job or
  • The conduct was so severe or happened so often that it created a hostile work environment.

Typically, isolated incidents of unwanted conduct or petty slights won’t be enough to file a claim under anti-discrimination laws, though that’s not a hard and fast rule. Some conduct can be so severe that even one incident can create a legal claim of workplace harassment. The examples we provide below tend to focus on the more common situation where an employee is subjected to continued unwelcome conduct over an extended period of time.

Examples of Workplace Harassment

Harassment can come in many forms and from many sources. The harassing conduct can be verbal or physical and the harasser can be a co-worker, supervisor or even an non-employee like a customer or contractor. Under New York State’s Human Rights Act, non-employees are also protected if they are doing business at the company’s location (including contract workers or vendors). Here are some common forms of workplace harassment.

Verbal Harassment

Possibly the most common behavior that comes to mind when you think of workplace harassment is verbal harassment. Verbal harassment can include jokes, innuendos, slurs, name-calling and insults, among other things, as long as the behavior is based on a protected trait.

Verbal Harassment

One discrimination case settled between the federal Equal Employment Opportunity Commission (EEOC) and an Arizona-based aviation services company provides a good example of the type of verbal conduct that can create a workplace harassment claim. In that case, an employee of the company claimed he was harassed based on his national origin (Turkey/Palestine) and religion (Islam). The employee said that his supervisor made insulting remarks to him, including that he “dressed like [he was] gonna blow up the World Trade Center,” and made derogatory jokes about Arabs. Despite the fact that the employee reported this conduct to his employer, the employer did nothing to stop it and the employee eventually resigned. The company eventually settled the case for $50,000.

In another EEOC case against the restaurant chain Golden Corral, the verbal harassment focused on the employee’s mental disability, and then turned to sexual harassment. The company’s dishwasher had a form of high-functioning autism. His assistant manager called him a “retard” and “stupid”, swore at him, and threatened to sexually assault him, demanding oral sex. Eventually, the employee was forced to leave because of the hostile work environment after he was again assigned to report to the same abusive manager. He filed a complaint with the EEOC, which sued Golden Corral’s parent company, Jax, LLC. The case eventually settled for $85,000.

Physical Harassment

Though physical harassment is less common than verbal harassment, it can often be more severe. Physical conduct, like hitting, pushing, groping and other touching, can be present in any number of harassment claims, but is often associated with sexual harassment.

Physical Harassment

For example, in a sexual harassment case filed by the EEOC against Red Lobster, several female employees alleged their manager created a hostile work environment by, among other conduct, physically harassing them. The conduct included the manager pressing himself against the employees as well as grabbing and groping them. Again, the employees complained to their employer, but no action was taken. After the EEOC filed suit on the employees’ behalf, Red Lobster agreed to pay $160,000 in damages and make other changes at its restaurant to avoid similar incidents in the future.

Starting in 2019, New York State law now requires all employers to train new hires and existing employees about how to prevent and respond to physical sexual harassment. This training must include examples of workplace harassment and explain an employee’s rights and remedies if they find themselves the target of illegal and unwanted behavior.

Supervisor Harassment

Harassment can be most intimidating when it comes from a boss, manager, or supervisor. Supervisors can use their position of authority to subject employees to discriminatory conduct, leaving the employee feeling trapped and vulnerable. Federal courts have found that when it is the employee’s supervisor doing the unwanted conduct, it creates a claim for workplace harassment that much sooner.

Supervisor Harassment

In another sexual harassment case, brought by a female employee of UBS Financial Services, a manager and UBS Vice President allegedly harassed the employee over a period of several years with repeated inappropriate sexual comments, remarks about her body, explicit emails and phone calls to the employee’s home. The employee complained to her employer, but instead of getting relief from the harassment, she was ultimately fired. The employee filed a lawsuit against UBS and received an award of $8.4 million.

Supervisor harassment can even come from the owner of the company itself. When you work for a small business, sometimes it can be hard to get relief under Title VII or other federal anti-discrimination laws. However, the New York State Human Rights Act applies no matter how small the company is. When a popular New York restaurant owner created a “culture of fear” among his employees, they went to the press to make their stories heard. The New York Human Rights Division reviews these kinds of cases. If no resolution can be reached, state residents can sue their bosses in state court.

Co-Worker Harassment

While coworkers may not have the same level of authority over an employee, they can also create an intimidating work environment for employees that is just as unlawful as harassing conduct of a supervisor.

Coworker Harassment

A case brought by the EEOC against a North Carolina trucking company in 2011 exemplified the type of hostile work environment case that can be created by the discriminatory actions of coworkers. The EEOC brought the case on behalf of two African-American employees, alleging their employer had allowed a racially hostile work environment to exist. According to the EEOC, that environment was created, in large part, by coworkers who made derogatory and threatening comments to the employees, used racial slurs and even displayed a noose in the workplace. The jury in that case agreed that the employees had been harassed based on their race and awarded them a total of $200,000 in damages.

In another EEOC complaint, several partners of a top law firm sued the firm for coworker harassment and gender discrimination they said created a “fraternity culture” at work. Among their claims, the female lawyers said that male partners would demand that they sing and dance, force the women to climb over them or push them into pools at company parties, and make sexualized comments about the female employees’ clothes, high heels, or smiles. When these male partners would make inappropriate jokes they would often say “add it to the file” acknowledging that their conduct was illegal. The case requested over $2 million in damages.

Are You Being Harassed at Work?

The examples of unlawful workplace harassment don’t end with what we’ve listed above. In some cases, there is a mixture of unwelcome conduct (both verbal and physical) and harassers (supervisors, coworkers and others) that ultimately creates a discriminatory environment for an employee. In other cases, the initial workplace harassment is made worse by retaliation when employees speak out. Each case of workplace harassment is unique. Whether it rises to a level of illegal discrimination depends on the specific facts of the case.

At Eisenberg & Baum, LLP, our employment discrimination lawyers have seen countless examples of workplace harassment. We know what it takes to make, and win, a case for sexual harassment and gender discrimination in state or federal court. If you’d like to discuss the facts of your own employment harassment claim with an experienced attorney, please contact us. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

Is Pornography at Work Sexual Harassment?

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When nude pictures make their way onto the factory floor, or start to spread through the office chat system, it can easily turn a happy work day into an uncomfortable event. But is pornography at work sexual harassment? Can you report it without having to worry about retaliation?

In this blog post I will review a complaint filed by the EEOC against Protocol Restaurant based in part on claims that the owner distributed pornography at work. I will review the definitions of sexual harassment and a hostile work environment. I will also discuss employees options when inappropriate pictures make the rounds at work.

Pornography in the Workplace: Sexual Harassment Waiting to Happen

Pornography can pop up anywhere. Whether you work in an auto-body shop or an executive office, you may have coworkers who view or share pornography on the job. They may hang inappropriately sexualized images around the shop floor, or send nude photos over email or the office chat system. Maybe they keep it as a background image or screen saver on their own computers, or play videos with disturbing sexual audio in their cubicles.

No matter the form it takes, pornography at work is a sexual harassment problem waiting to happen. Unless you work in a very particular industry, there is no reason for any employee to be viewing pornography at work. Most companies explicitly ban the practice in their employee handbooks. But that doesn’t mean employees aren’t sneaking it in and using it in ways that make their coworkers uncomfortable.

Sexual harassment under Title VII of the federal Civil Rights Act can happen any time comments or behavior based on a person’s sex or gender make it hard for them to work, or create a hostile work environment that would make a reasonable person uncomfortable on the job. The presence of pornography at work can very easily create a hostile work environment by raising issues of sex, sexuality, and lewd behavior where they have no purpose. When an employee’s objections about the presence of sexual images go unanswered, the employer’s silence can create the basis for a sexual harassment lawsuit.

EEOC vs. Protocol Restaurant Takes on Pornography at Work

That’s what happened when the Equal Employment Opportunity Commission (EEOC) sued Protocol Restaurant in Buffalo, New York for sexual harassment. The lawsuit accuses Paul Pelczynski, the restaurant’s owner, of a variety of sexually offensive conduct targeting the women who worked for him, including:

  • Unwelcome sexual advances
  • Repeated invitations for drinks
  • Offers to share hotel rooms
  • Comments about their bodies
  • Grabbing their bodies
  • Kissing them
  • Brushing up against them
  • Displaying pornography at work
  • Sending pornographic group texts

When the restaurant’s female employees complained or told Pelczynski no, they were fired. Others quit because they could no longer put up with the sexualized and hostile work environment.

Finally, some of Protocol’s employees turned to the EEOC for help. After attempts at pre-litigation settlement failed, the agency filed suit in EEOC v. Protocol of Amherst, Inc., Civil Action No. 1:19-cv-00598 in U.S. District Court for the Western District of New York, Buffalo Division. The lawsuit seeks damages on behalf of the employees including:

  • Back pay
  • Compensation for harm caused by the sexual harassment
  • Punitive damages based on the severity of the conduct
  • Changes to company policy to prevent future sexual harassment at work

Jeffrey Burstein, regional attorney for the EEOC’s New York District Office said in a statement:

“Owning a business is not a license to sexually harass employees. . . . Business owners have a duty to protect employees from sexual harassment, and the EEOC is prepared to take strong action where an owner abuses his authority.”

Retaliation for Reporting Porn at Work

Even though pornography has no place at work and is against most company policies, employees are still often hesitant to report it. That is especially true when the person sending out the images is a manager, supervisor, or owner (like Pelczynski). Just like in the Protocol case, employees worry that if they call out their bosses for sexually inappropriate imagery they are going to face retaliation, suffer even more sexual harassment, or even lose their jobs.

The good news is that the same state and federal laws that protect against sexual harassment, including pornography at work, also prevent employers from retaliating when an employee complains. Even if you weren’t the one negatively affected by the images, the law says that your employer may not discipline you for speaking out. When it does, you have the right to file a claim with the EEOC or in state or federal court.

Extra Protections for New York Employees Against “Revenge Porn”

Having to endure any naked bodies when you are trying to work is hard enough. But when you are the subject of the photos it can be humiliating. Many victims of so-called “revenge porn” at work find themselves resigning rather than facing coworkers who have seen them exposed.

That’s why New York City and New York State have each passed laws making it a crime to distribute nude pictures of another person without his or her consent. Section 10-177*3 of the NYC Administrative Code makes distributing, or even threatening to distribute revenge pornography at work a criminal misdemeanor with a penalty of up to one year in jail.

On the state level, using intimate pictures or video to humiliate someone or cause them emotional, physical, or financial harm is a Class A misdemeanor, punishable by up to 1 year in prison and a $1,000 fine. The state law also gives the victims of revenge porn the power to sue their harassers, and in some cases their employers, for the harm caused. They can also get a court order to get the pictures taken down from social media or workplace servers, to help them repair their reputation and move past the humiliating event.

Pornography has no place at work. But when it finds its way there anyway, employees need to know there are laws to protect them. At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys know how to use federal and state anti-discrimination laws and local and state revenge porn laws to get you the protection and compensation you need. We can meet with you at our headquarters in the heart of New York City, or conference with you remotely, to help you plan a strategy to put an end to pornography at work. Contact Eisenberg & Baum, LLP, today to talk to a sexual harassment attorney.

Whose Side are They On: Unions in Sexual Harassment Claims

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Unions hold themselves out as protecting workers in a number of industries — from actors to actuaries. They represent musicians and tradespeople, as well as municipal staff and employees of large corporations. When sexual harassment happens in a unionized workplace, it can raise questions about whose side the union is really on, and about the role of unions in sexual harassment claims.

In this blog post I will discuss what role unions play in sexual harassment claims by unionized workers. I will discuss whether you need to file a complaint with your union rep, and why you might find yourself facing off against unions in sexual harassment claims.

Title VII Applies to Employers, Not Unions

When you are facing sexual harassment at work, you can use Title VII of the federal Civil Rights Act as a shield. Like many states’ laws, Title VII makes it illegal for your employer to make employment decisions (like hiring, promotions, salary adjustments, or shift assignments, among others) based on an employee’s willingness to respond to a supervisor’s sexual advances. It also requires employers to respond to complaints of sexual harassment by supervisors, between coworkers, or involving customers or clients.

Title VII doesn’t directly apply to unions. The protections offered under the statute depend on the existence of an employment relationship. While the New York State Human Rights Act defines the scope of protection more broadly, under federal anti-discrimination laws a union representative has no duty to review or respond to sexual harassment claims.

That said, many unions explicitly take on the duty to respond to reports of sexual harassment by coworkers in their Codes of Conduct or collective bargaining agreements. In those cases, your union can sometimes actually slow down your ability to go to court over sexual harassment claims. If your company’s internal processes require a thorough union grievance process, you may have to finish all those appeals before you are eligible to file a claim with the Equal Employment Opportunity Commission or in federal court.

Could Your Union Rep be Working Against You?

Many unionized employees are surprised to learn that the traditional union relationship does not include help when you are filing sexual harassment claims. In fact, at its most straight-forward, it is the union’s job to protect your harasser’s employment. According to a recent New York Times article on the issue:

“The old union way was just defend the member at all costs, fight the disciplinary action,” said Leonard Egert, the national executive director of the guild, also known as AGMA.

That means when your employer is quick to react to allegations of abuse, by suspending or firing the employee in question, the unions can sometimes be legally required to help them fight to get their jobs back.

That’s what happened at the New York City Ballet when Alexandra Waterbury, a former student at the School of American Ballet, raised sexual harassment claims against fellow dancer Amar Ramasar, a star within the company. She reported that her ex-boyfriend had shared texts containing sexually explicit photos and videos of her without her consent. Mr. Ramasar was also accused of sharing nude photos of another dancer with Ms. Waterbury’s ex-boyfriend. In response to the allegations, the Ballet suspended Ramasar and another dancer named in Ms. Waterbury’s lawsuit. But then it learned that several of its dancers would be uncomfortable if the men returned, so the company fired them.

That’s where the union came in. The AGMA represented Ramasar and the other dancer in defending against employment termination, saying that the men had not been given an opportunity to defend themselves against the claims. It said firing the two men was too severe a punishment. Eventually, a private arbitrator agreed and Ramasar was reinstated (the other dancer chose not to return to the company).

Sexual Harassment Claims Pit Unions Against Themselves

Several unions are adjusting their approach to sexual harassment claims, particularly in the arts and entertainment industries. Many have adopted new codes of conduct that provide for the right to a safe, harassment-free workplace, and create ways for victims to file sexual assault complaints with the union directly.

But doing so could create a strange situation of pitting your union against itself in its duty to represent all the company’s employees. If you file sexual harassment claims with your union, and it takes on the responsibility to represent you in that complaint, that doesn’t eliminate its duty to your coworker who harassed you. Some unions are having to assign different staff members to each side of the case. In those instances, you could end up with the union working against itself and its own ends.

That’s why, even if you are entitled to union representation, you may want to hire a private attorney to represent your sexual harassment claims to your employer. If you rely on the union representative in a claim against a coworker, it may not be entirely clear who they are representing, and you may find the resolution leaves you wanting something more.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys work with employees in unions in New York and across the country. We know how to make the most of union grievance processes, and when you can work around them to get resolution faster. Contact us to schedule a consultation at our office in New York City, or over the phone.

Sexual Harassment on Campus: What are Students’ Rights?

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If you are the target of sexual harassment on campus it can feel like you are being forced to choose between your emotional and physical health and your future. But if you are attending one of the more than 7,000 colleges and universities that receive federal funding, Title IX gives you the right to be free from sexual harassment and sexual violence at school.

In this blog post, I will review claims that Michigan State University encouraged female students not to report sexual harassment and assault by student athletes. I will discuss how Title IX protects students’ rights when they face sexual harassment on campus, and what to do if the school isn’t following the rules.

Michigan State University Said to Discourage Students from Reporting Sexual Harassment on Campus

Michigan State University has come under fire in recent years because of the way it handled numerous claims of sexual assault by athletic physician Larry Nassar against athletes including gymnasts. But it turns out the allegations go beyond any one person’s misconduct. Bailey Kowalski and several others have filed an anonymous lawsuit against the university for violations of Title IX. They say that the university’s staff had discouraged them from reporting sexual harassment and assault when their abusers were student athletes.

In Kowalski’s case, she was 19 when she was invited to a party by a member of the MSU Basketball team after they competed in the 2015 Final Four playoffs. She accepted a ride, but when she arrived at the off-campus apartment, no one was there. Three players then took turns raping Kowalski, according to the lawsuit. When she reported the incident to the Michigan State University Counseling Center a week later, the counselor was initially supportive, but then changed her response once she learned that the abusers were student athletes.

The counselor insisted on having another person present and advised Kowalski not to have a physical exam or pregnancy or STD testing. She was not told of her student rights under Title IX, and was instead told that in cases with “guys with big names” the best thing to do was “just get yourself better.” As a result, Kowalski dropped out of college for a time and received counseling for PTSD. She also changed her major, abandoning a career in sports journalism.

Other plaintiffs in the lawsuit have not come forward, but the complaint tells their stories. One woman was raped by two football players in 2009 and was not told she had Title IX rights. Another reported rape by three basketball players in 2010, but those complaints never made it past the athletic department.

What are Students’ Rights Under Title IX?

Title IX of the Education Amendments of 1972 applies to sexual harassment on campus, including sexual violence, rape, and sexual assault. The law prohibits discrimination based on sex within educational facilities, programs, and activities that receive federal financial assistance. That includes approximately 16,500 public school districts; 7,000 colleges, universities, and postsecondary vocational schools, charter schools, for-profit universities, libraries, and museums.

When a school receives reports of sexual harassment on campus, or even when it reasonably should know that possible sex-based harassment is occuring, Title IX requires the school to immediately investigate the reports. If the investigation reveals that sex-based harassment denied or limited a student’s ability to participate in or benefit from the school’s educational programs or activities by creating a hostile educational environment, it must take prompt and effective steps to correct the problem. This can include:

  • Stopping the harassment
  • Eliminating the hostile environment
  • Preventing future abuse or violence
  • Remedying the effects of what has already happened

What to Do if Schools Discourage Title IX Reports

Ms. Kowalski and the other plaintiffs in the MSU case say that the school failed to meet those requirements under Title IX. Their complaint claims that they were not told of their rights under Title IX, and that they were discouraged from filing sexual harassment reports. Those who did file reports claim that the investigation was never referred to the Title IX office, and was instead kept within the athletic department.

When schools fall down on their obligations under Title IX to end sexual harassment on campus, students have the right to file a complaint with the Office of Civil Rights (OCR), which enforces the statute. The OCR will then investigate the complaint and attempt to resolve the problem by implementing new anti-harassment policies and procedures, as well as addressing the particular claims of sexual harassment, assault, or violence.

Students also have the right to file a Title IX lawsuit in federal court the way Ms. Kowalski did. This lawsuit can ask the court to order schools to change their policies, and award damages for the harm caused by when the school ignored its responsibilities under Title IX.

Students have the right to learn in environments free of sexual harassment, assault, and violence. When schools discourage students from reporting Title IX violations, they need experienced discrimination attorneys to step in and help them navigate the process of filing complaints with the OCR and in federal court. Especially in cases with “guys with big names”, students need to know that their attorneys are going to work as hard as the universities to keep them from covering up the bad behavior of their student athletes.

At Eisenberg & Baum, LLP, our sexual harassment attorneys 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.

New York Law Gives Epstein’s Sexual Assault Victims Their Day in Court

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How long should children have to report sexual assault once they reach adulthood? Three years? How about 10? The New York State Child Victims Act, passed this year, extends the time for state prosecutions and civil lawsuits in these kinds of cases, giving Epstein’s sexual assault victims and others a chance to come forward on their own time.

In this blog post, I will discuss the indictment against Jeffrey Epstein for child sex assault and related civil litigation for sexual assault of minors. I will discuss how the Child Victims Act extends the deadline for Epstein’s sexual assault victims to file their claims, and explain how survivors of long-ago sex abuse and sex trafficking have one year to file their claims without worrying about how long it took to come forward.

New York Prosecutors Indict Billionaire Jeffrey Epstein for Child Sex Abuse

Billionaire Jeffrey Epstein is a very influential person. He has rubbed elbows with at least two presidents (Clinton and Trump) and owns homes in several states, Paris, and the U.S. Virgin Islands. He also has a reputation for engaging in prostitution with young girls. In 2008, Epstein pleaded guilty to two state prostitution charges in Florida. This conviction caused him to serve 13 months in prison, pay restitution to his victims, and register as a sex offender. It was the result of a settlement called the “deal of a lifetime” following a federal investigation by the FBI, headed up by then-U.S. Attorney Alexander Acosta, who is now President Donald Trump’s labor secretary. The settlement agreement was between Epstein and the U.S. Attorney’s Office and Florida state prosecutors.

However, that deal has never felt like justice to the Epstein’s sexual assault victims. Even though the investigation involved 36 child victims of sexual assault, those victims and their families were not consulted before the deal was struck. In February, 2019, Federal District Court Judge Kenneth Mara said that by removing Epstein’s sexual assault victims from the bargaining table, the Department of Justice had violated federal law.

Perhaps in response to that decision, the federal prosecutors in New York recently unsealed a criminal indictment showing that Epstein had operated a sex trafficking ring in the state, abusing dozens of girls as young as 14, and paying them hundreds of dollars cash. The indictment indicates the girls were directed to give Epstein massages, often nude or partially nude, while he engaged in sex acts including touching their genitals or masturbating.

Epstein’s attorneys are arguing that the U.S. Attorney’s Office cannot file new charges because of the 2008 settlement. However, New York prosecutors say that they weren’t part of that agreement and can proceed on their own with criminal felony charges.

New York Child Victims Act Gives Prosecutors New Freedom in Old Sex Abuse Cases

This new indictment comes on the heels of the New York legislature approving the Child Victims Act. This statute, passed into law on January 24, 2019, extends the periods for criminal prosecution of sexual offenses against a minor, and related civil lawsuits. Under the new statute of limitations, the clock does not even begin to run until either:

  • The abusive behavior is reported to the police or the statewide central register of child abuse
  • The victim turns 23 years old.

This means state prosecutors are now allowed to bring cases for child sexual assault victims as old as 28 years old. The extended deadline, along with the federal court’s ruling in February gives New York prosecutors and their federal counterparts the flexibility to bring the new indictment and fight for justice for Epstein’s sexual assault victims.

Extended Civil Lawsuit Window Gives Epstein’s Sexual Assault Victims Their Day in Court

The law goes even further for civil lawsuits filed by the child victims of sexual assault and their families. Lawsuits to recover for physical, psychological, or other injuries from child sex abuse cases can be filed until the victim turns 55 years old. This applies to intent-based and negligence claims of:

  • Sexual assault against a person under 18 years of age
  • Incest against a person under 18 years of age
  • Child pornography or sexual performances using a person under 18 years of age

This gives child victims decades to come forward, honoring the need to process such traumatic incidents before bringing the matter to court.

Long-Ago Child Sex Assault Victims Have 1-Year Window to Revive Claims

The Child Victims Act also creates a one-year retroactive window, between July 24, 2019 and July 24, 2020, for the victims of long-ago child sex assault to revive their claims. Anyone whose lawsuits were previously dismissed because they waited too long (violating the statute of limitations) or failed to file the right notices of claim may refile their lawsuits within that 1-year window and get their day in court. Retroactive laws of this kind are rare, so the victims affected are encouraged to talk to a sexual assault attorney right away to preserve their claims.

But they must act quickly. After July 24, 2020, Epstein’s sexual assault victims and survivors of child sex abuse will once again face claims that they have waited too long to file suit. That’s why it is essential to speak to an experienced attorney today to develop your case and get it filed within the one-year window.

At Eisenberg & Baum, LLP, our experienced sexual abuse attorneys know how to put the New York Child Victims Act to work for you to fight back against child sexual abuse. We can meet with you and your family at our headquarters in the heart of New York City, or conference with you remotely, to help you find protection and compensation under federal, state, and local laws. Contact Eisenberg & Baum, LLP, today to talk to a sexual abuse attorney.

What the Equal Employment Opportunity Commission Did for Employees in 2018

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The #MeToo movement and national attention to sexual harassment issues made 2018 a big year for the Equal Employment Opportunity Commission. So why are their charge numbers down? Find out why changes at the EEOC may lead more employees to use private lawsuits to get the recovery they deserve.

This blog post will review the 2018 enforcement and litigation statistics recently released by the Equal Employment Opportunity Commission (EEOC). I will compare FY2018 to prior years and discuss options for employees who find their interests are not fully represented in the EEOC complaint process.

Retaliation, Sexual Harassment Top the List of EEOC Charges

On April 10, 2019, the Equal Employment Opportunity Commission released its 2018 enforcement and litigation statistics for workplace discrimination of all kinds. The EEOC tracks all its complaints and charges by year, state, and type of misconduct. Here are the highlights of last year’s data.

In FY2018, which ended on September 30, 2018, the EEOC received 519,000 calls, 34,600 emails, and 200,000 in-person inquiries from members of the public. These resulted in 76,418 total charges. More than half (51% ) of those charges included claims of retaliation.

The #MeToo movement made its mark as well. In 2018, the EEOC received 7,609 sexual harassment charges, which was a 13.6% increase over FY2017. The agency also received 24,655 sex discrimination charges (32.3% of all charges) and an additional 1,066 Equal Pay Act charges. Other claims included:

  • Disability and ADA violations (24,605 or 32.2%)
  • Race (24,600 or 32.2%)
  • Age (16,911 or 22.1%)
  • National Origin (7,106 or 9.3%)
  • Color (3,166 or 4.1%)
  • Religion (2,859 or 3.7%)
  • Genetic information (220 or 0.3%)

(Percentages add up to more than 100% because some charges included more than one type of violation.) All together, the EEOC secured $505 million in damages for employees of private employers, state and local government offices, and federal workplaces.

Smaller Case Load Signals Changes at the Equal Employment Opportunity Commission

As large as those numbers seem, they actually represent a significant reduction in case load at the Equal Employment Opportunity Commission. While EEOC employees opened over 76,000 charges, they closed 90,558 charges of discrimination, either through informal facilitation, settlement or case resolution. In total, the agency reduced its workload by 19.5% over the course of the year.

EEOC Acting Chair Victoria A. Lipnic sees this as a point of pride. The Equal Employment Opportunity Commission’s press release on the data included her statement:

“The EEOC had a remarkable year working on behalf of those who came to the agency having experienced discrimination in their workplaces. . . . The statistics reflect the agency’s successes in taking advantage of new strategies to bring about the lowest inventory of private sector charges in a dozen years.”

She touted the agency as operating in a more efficient manner, and being more sharply focused on “meritorious charges and those that advance the public interest”. That also means the Equal Employment Opportunity Commission is doing less for the employees who contact them with harassment and discrimination claims. They are filing fewer lawsuits and turning more employees away by issuing Notices of Right to Sue.

“Efficiency” at EEOC Means More Employees Will File Private Employment Discrimination Lawsuits

With the EEOC tightening its belt, many private employees will end up looking elsewhere for help enforcing their rights under Title VII, the Equal Pay Act, and other anti-discrimination statutes. For workers whose circumstances don’t fall within the Equal Employment Opportunity Commission’s top priorities, the reduction in workload will mean they will need to file private employment discrimination lawsuits to get the damages and injunctive relief they need and deserve.

At Eisenberg & Baum, LLP, we know how to make the most of the EEOC process. We can help you prepare your charge, and gather your evidence, so you can make the most of your sexual harassment or gender discrimination claim. Whether you are preparing for a formal hearing or have been sent a Notice of Right to Sue, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.