Tag Archive for: Sexual Harassment

The 2019 New York State Budget puts in place the nation’s strongest, most comprehensive sexual harassment law. It holds employers accountable for sexual misconduct in the workplace, and specifically requires employers to adopt a sexual harassment prevention policy. To help employers meet these new demands, the New York State government has put together a model policy that can be used as a standard to protect workers’ rights across the state.

In this blog post, I will discuss the 2019 New York State Budget, which requires all employers to adopt a sexual harassment prevention policy. I will review the model policies and training guidance provided by the state. I will also address options available to employees whose employers don’t create or enforce the mandatory policies.

New York State Law Requires Sexual Harassment Prevention Policies for All Employers

Whether you work on Wall Street, in a brand new startup, or for a small family store, you deserve to be free from sexual harassment in the workplace. Starting in 2019, the New York State government requires every employer — matter how small — to adopt a formal sexual harassment policy to protect its workers. The policy must:

• Explicitly prohibit sexual harassment
• Give examples of prohibited sexual conduct
• Describe federal and state anti-discrimination laws, and say that local ordinances may also apply
• Contain a written complaint form
• Describe a timely and confidential investigation procedure designed to give due process to everyone involved
• Notify employees of their rights to file complaints internally, with the Division of Human Rights, and with the Equal Employment Opportunity Commission
• Clearly state that sexual harassment is employee misconduct subject to discipline and enforcement
• Include discipline of supervisors and managers who allow sexual harassment to continue
• Prohibit retaliation with the threat of discipline

Model Sexual Harassment Prevention Policy Helps Employers Do the Right Thing

In addition to describing what employers are required to do, the New York State government website provides a model sexual harassment prevention policy that makes it easy for employers to comply with the law. The policy starts by giving a broad definition of sexual harassment, in line with the New York State Human Rights Law:

“Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

It includes bans on sexual conduct that:

• Interferes with a person’s work
• Creates a hostile, intimidating, or offensive work environment
• Conditions employment on the response to sexual conduct
• Basis employment decisions on the response to sexual conduct

The policy then provides concrete examples of each type of sexual harassment. It notes that, while not all sexual misconduct creates the basis for a lawsuit or DHR complaint, even a single incident can be addressed internally under the policy. It also addresses many frequently asked questions like:

• Can an employee be sexually harassed by another employee of the same gender?
• Does sexual harassment include behavior of independent contractors, superiors, or clients?
• What if sexual harassment happens outside the workplace.

Model Policy Focuses on Preventing Retaliation

The model policy also dedicates an entire section to retaliation. Under the New York State Human Rights Act and Title VII of the federal civil rights act, retaliating against someone because they filed a sexual harassment complaint or participated in an investigation is illegal. The model policy makes it clear that anyone — even a supervisor or manager — who retaliates against someone filing a sexual harassment complaint may be disciplined or even fired.

State Policy Emphasizes Witness Reporting

Stopping sexual harassment isn’t just about he said/she said. The model policy addresses the important role of witnesses in sexual harassment prevention. It encourages witnesses to file written complaints, and ensures the investigation will be confidential (to the extent possible) and free from retaliation. That way workers who see something can feel confident in saying something.

Meeting Mandatory Training Requirements

The New York State Human Rights Act also now requires all employers to provide sexual harassment prevention training every year. The state website provides guides to what that training should look like, and how it can work. There are also training videos available that meet the minimum training requirements, except they are not interactive. The website provides guidance on how employers can use the videos to meet their obligations under the law.

What to Do if Your Employer Doesn’t Adopt a Sexual Harassment Prevention Policy

State law is only as good as its enforcement. If you feel you have been the victim of sexual harassment and your employer (1) doesn’t have a policy or (2) refuses to enforce it, you may be entitled to file a complaint with the New York State Division of Human Rights or the EEOC.

At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how the new laws have affected your rights, and what you can do if your employer isn’t keeping up with the changes. We will help you negotiate with your employer, file the necessary administrative claims, and represent you in court. Contact us to schedule a consultation.

Starting a business is hard for anyone. Entrepreneurs looking for start-up capital often face uphill battles convincing investors that their product or service is worth the risk. But sexual harassment in lending makes it even harder for women entrepreneurs to get from making a pitch to opening a fully-funded business.

In this blog post, I will discuss the gender discrimination and sexual harassment in lending that women entrepreneurs face. I will address how hedge fund managers and investment bankers use promises of funding in quid pro quo sexual misconduct. And I will review what business owners can do when they are denied lending because of their gender or unwillingness to trade sex for funding.

Women Entrepreneurs Start Businesses Everywhere

The Department of Labor estimates that approximately 36% of all businesses are owned by women, and another 2.5 million are owned equally by male and female partners. Women-owned businesses account for over 8.4 million employees and $264 billion in payroll. Women entrepreneurs are opening businesses in every industry group, from child care to logging. Among minority communities, women-owned businesses make up an even larger share of the workforce. Women own over 59% of African American businesses and 44% of Hispanic businesses.

Women Face Gender Discrimination and Sexual Harassment in Lending

But women have not seen the same advancement in lending capital. A 2016 study by Biz2Credit, an online small-business funding marketplace shows that women are approved for loans 33% less often than their male counterparts. Minority business owners fare even worse.

Often, women seeking venture capital for their startup businesses are faced with gender discrimination and sexual harassment in lending applications and pitches. The venture capital industry is almost entirely male. According to a 2016 report, only 8% of investing partners at active venture and microventure firms are women. At the top 100 firms, that number drops to 7%. Another report reveals that 89% of venture capitalists are male, and 87% are white.

That gender gap has created a culture of sexual hostility. In 2017, the New York Times reported the stories of over two dozen women who faced sexual harassment in lending within the technology start-up industry. Their stories pointed high-profile venture capitalists like Chris Sacca of Lowercase Capital and Dave McClure of 500 Startups. The women reported that after making their pitch to male lending officers, they were touched without permission, hit on, and asked for sexual favors. This behavior was particularly challenging because the women entrepreneurs were not in a position to say no.

“There is such a massive imbalance of power that women in the industry often end up in distressing situations,” said Susan Wu, an entrepreneur and investor.

Saying No to Sexual Advances Puts Up Roadblocks to Women-Owned Businesses

When the capital you need to start your business comes with that kind of strings attached, saying no to sexual advances can create hurdles to meeting your funding needs. American Banker reports:

“Without access to small loans, women and minority business owners are at a competitive disadvantage. They must rely on personal savings, loans from friends, crowdsourcing and credit cards – when those options are available. Or, they have to seek capital from riskier lenders, increasing debt burdens and diverting funds from business operations.”

Saying no to one lender’s inappropriate sexual advances can also have wide-ranging effect throughout the industry. When one hedge fund or venture capital company declines funding, for any reason, it can make it harder to convince other investors your product is worth the risk.

Options for Women Entrepreneurs Facing Sexual Harassment in Lending

Women facing sexual harassment in lending may also have trouble exercising their right to be free from gender discrimination. Title VII, for example, bases its protections against sexual harassment on the employee/employer relationship. But entrepreneurs are their own bosses. The lenders demanding quid pro quo sexual favors work for another company.

The federal Equal Credit Opportunity Act, 15 USC section 1691, says it is unlawful for a creditor to discriminate against applicants based on sex. Depending on the nature of the loan, and if the investor would qualify as a “creditor”, a discrimination attorney may be able to use that law to confront sexual harassment in lending. However, this law is usually used in a consumer context, rather than between businesses.

California, for one, has enacted a state law that explicitly prohibits sexual harassment between anyone with a business, service, or professional relationship. In 2017, this law was amended to explicitly include investors, trust officers, financial planners, loan officers, and others who may have control over whether a woman entrepreneur receives funding. Since many venture capital companies are based in California, that law may give women entrepreneurs a new way of ending sexual harassment in lending.

Finding funding for your new startup shouldn’t have to include enduring unwanted sexual advances or contact. At Eisenberg & Baum, LLP, our sexual harassment attorneys know that unreasonable demands don’t only happen within the company organizational chart. We can help you review your case, and your legal options, to find a solution to the gender discrimination you experience. If you are a woman entrepreneur facing sexual harassment in lending, contact us today to schedule a free consultation.

Controversy over sexual abuse and sexual harassment in the Catholic church has been swirling for years. Now a recent indictment by a Pennsylvania Grand Jury has taken the matter out of the religious world, and into the legal sphere. But the question remains, are the victims of sexual harassment in the Catholic church protected? Or does the fact that the employer is a religious organization exempt it from gender discrimination laws?

In this blog post, I will review reports and indictments connected to sexual harassment in the Catholic church. I will discuss whether federal civil rights laws against gender discrimination and sexual harassment apply to religious institutions. And I will explain what options the victims of sex abuse and misconduct within a church, temple, or other religious order have to protect their rights.

Pennsylvania Grand Jury Report Reveals “Playbook” of Sexual Harassment in the Catholic Church

On August 15, 2018, a Pennsylvania Grand Jury issued a scathing report that shook the nation. The report named over 300 “predator priests” who had been credibly identified as sexually abusing over 1,000 child victims. These sexual assault incidents spanned over 60 years, dating back to 1947, and involved clergy in six dioceses: Allentown, Erie, Greensburg, Harrisburg, Pittsburgh and Scranton. The Grand Jury report said:

“We believe that the real number of children whose records were lost or who were afraid ever to come forward is in the thousands. . . . Priests were raping little boys and girls, and the men of God who were responsible for them not only did nothing; they hid it all. For decades. Monsignors, auxiliary bishops, bishops, archbishops, cardinals have mostly been protected; many, including some named in this report, have been promoted.”

Most of the incidents identified in the report were too old to prosecute. But the report did result in indictments against two priests, one in Erie and another in Greensburg, who are accused of sexual molestation of minors.

Sexual Harassment in the Catholic Church Involved Employees as Well

The story of sexual abuse in the Catholic church is often framed in the most disturbing terms: of older male priests raping and molesting young children, including altar boys and girls. However, the sexual harassment involved church employees as well. In July, 2018, the New York Times published the story of Robert Ciolek, a young man studying to be a priest in the 1980s. He was sexually harassed by his Bishop, Theodore McCarrick — his superior within the Catholic church.

Ciolek, who was in his 20s at the time, felt unable to say no to his superior’s sexual advances:

“I trusted him, I confided in him, I admired him. . . . I couldn’t imagine that he would have anything other than my best interests in mind.”

McCarrick was eventually named a Cardinal, one of the highest ranks within the Catholic Church, and an advisor to Pope Francis. But after Ciolek’s allegations came to light, McCarrick resigned. The Pope has announced that the Council of Cardinals had reviewed his case and substantiated (found support for) the claims against him. The Pope ordered McCarrick to live a “life of prayer and penance” for what he had done.

Title VII and Sexual Harassment Inside Religious Institutions

Ciolek’s case, like many of the sexual abuse incidents included in the Grand Jury report, is too old to result in legal action. But as more sexual harassment victims of the Catholic church come forward, the question becomes whether the church can be held responsible as an employer under Title VII.

Federal civil rights law requires employers to take reasonable steps to investigate and respond to allegations of sexual harassment by their employees, especially managers and others with supervisory authority. When an employee reports that a supervisor pressured him or her for sexual favors as a basis of employment or punished him or her for refusing those advances, the employer is legally required to step in and take reasonable steps to stop the sexual harassment, up to and including firing the abuser.

In 2017, the Catholic church employed over 37,000 clergy, religious, and lay (secular) leaders in the United States. When one of those employees comes forward claiming gender discrimination or sexual harassment in the Catholic church, will its status as a religious organization interfere with its employees right to be free from unwanted sexual advances?

In general, religious organizations are required to comply with Title VII and other employment laws. However, two exceptions limit the options available to the victims of discrimination and harassment in the Catholic church:

Religious Organization Exception

The Religious Organization Exception under Title VII allows religious organizations like the Catholic church to give preference to members of their own religion in hiring decisions. However, this exception does not excuse discrimination or harassment based on other protected traits like sex or gender. For example, a religious organization cannot refuse to hire women based on its religious beliefs around the role of women in ministry. Because of this limitation, it seems unlikely that the Catholic church could use the Religious Organization exception to excuse sexual harassment of seminarians and other employees within its ranks.

Ministerial Exception

The bigger hurdle for the victims of sexual harassment in the Catholic church comes from the Ministerial Exception. Courts have ruled that clergy members are not allowed to file claims under Title VII and other federal employment discrimination laws because doing so would put the government in charge of deciding who could or could not lead a religious organization. That, the courts say, interferes with the church’s First Amendment right to free exercise of religion.

However, the Ministerial Exception only applies to employees who are involved in religious functions within the church. While a priest may not be able to file a claim, the church secretary might. Also, some courts have chosen not to apply the exception when the case would not affect the church’s First Amendment rights.

The Catholic church is not immune to laws protecting employees from sexual harassment and abuse. However, the Ministerial Exception and other limits placed on the courts’ ability to regulate religion could make it harder for clergy to recover for sexual harassment in their religious work. At Eisenberg & Baum, LLP, our sexual harassment attorneys know what those limits are, and how to work with employers to get religious employees the relief they need. We will meet with you to review your situation and your options, so you can be free of harassment at work. Contact us today to schedule a free consultation.

The name Brett Kavanaugh has been on every news person’s lips for nearly a month. In the midst of a heated Supreme Court confirmation process, Dr. Christine Blasey Ford came forward with allegations of sexual harassment and assault. She claimed Kavanaugh had tried to rape her when they were teenagers in the 1980s. Now the dust has settled and Kavanagh has been confirmed, leaving many wondering what do those allegations mean for the Court, and how will Kavanaugh rule when sexual harassment cases come before the Court?

In this blog post, I will review allegations of sexual harassment and sexual assault against Supreme Court Nominee Brett Kavanaugh. I will discuss how the Senate addressed these allegations. And I will review Kavanaugh’s position regarding sexual harassment and gender discrimination, as revealed in his previous federal court decisions.

Dr. Christine Blasey Ford Raises Sexual Harassment and Assault Claims Against Brett Kavanaugh

Shortly after Federal Circuit Court Judge Brett Kavanaugh was nominated to fill Justice Anthony Kennedy’s seat on the Supreme Court, Professor Christine Blasey Ford, a psychological researcher at Palo Alto University sent a letter to Senator Dianne Feinstein. In that confidential letter, she said Kavanaugh had sexually assaulted her at a house party in the early 1980s when they were both teenagers.

Dr. Ford’s account, which later became public, described Kavanaugh and his friend Mark Judge as “stumbling drunk” when they pushed her into an upstairs bedroom and turned up the music to cover her yelling. She reported that Judge watched as Kavanaugh pinned her to a bed, groped her, ground his body into her, and tried to pull off her clothes. She reported trying to scream, but he put his hand over her mouth. She said:

“I thought he might inadvertently kill me. . . . He was trying to attack me and remove my clothing.”

Ford said she was able to escape when Judge jumped onto the bed where Kavanaugh held her, sending them tumbling to the floor. She fled to a bathroom and then left the house.

Two other women, Deborah Ramirez and Julie Swetnick, also came forward alleging Kavanaugh had engaged in sexual misconduct as a teenager. Ramirez claimed he exposed himself to her while they were at Yale University. Swetnick said the sexual misconduct happened while they were at parties as teenagers.

Senate Judiciary Committee Holds Hearings on Sexual Harassment and Assault Allegations

Kavanaugh, “categorically and unequivocally denied” Ford’s allegations, saying he didn’t even attend the party. After considering the matter, and negotiating with Dr. Ford’s attorney, Senate Judiciary Committee Chairman Chuck Grassley scheduled hearings for both Dr. Ford and Kavanaugh on Thursday, September 27, 2018. In an unusual move, the Republican senators on the panel brought in Arizona prosecutor Rachel Mitchell to question Dr. Ford, though they mostly questioned Kavanaugh themselves.

Dr. Ford, who is a psychologist with a history of writing on the long-term impacts of trauma (including sexual assault), testified to her own memory of the events and the reasons that memory should be deemed credible. When Kavanaugh read his prepared remarks his presentation was emotional, and oftentimes highly politically charged.

Supreme Court Nominees and Sexual Harassment

This isn’t the first time a Supreme Court nominee has been accused of sexual harassment. In 1991, Anita Hill spoke out against the confirmation of Justice Clarence Thomas. Hill accused Thomas of sexual harassment while working as her superior at the Equal Employment Opportunity Commission. Hill faced invasive questioning about her allegations, her credibility, and what she had to gain by coming forward. Dr. Ford has faced many of those same questions, both from Senators and in the media.

The FBI Investigates Sexual Assault Claims

The Senate Judiciary Committee advanced Kavanaugh’s confirmation on September 28, 2018. But Republican Senator Jeff Flake, a member of the committee, said he would not vote to confirm Kavanaugh without an FBI investigation into all 3 sexual misconduct claims. The FBI completed a week-long investigation, including interviews with several named witnesses to the events. However, the White House directed that investigation to be “specific in scope” and some believe it was not enough to determine the truth of the women’s claims of sexual harassment and assault.

Justice Brett Kavanaugh Confirmed in Spite of Allegations

Ultimately, on Saturday, October 6, 2018, Brett Kavanaugh was confirmed to the Supreme Court by a narrow vote: 50 to 48. He was then sworn in by Chief Justice John G. Roberts Jr., and retired Justice Anthony M. Kennedy, whom he replaces. He heard his first cases Monday morning, October 9, 2018.

Kavanaugh’s Judicial History on Employment Law Issues

Now that his is on the bench, Kavanaugh’s history of alleged sexual assault may take a back seat to the power he has to affect the rights of women and employees going forward. As a federal judge, Kavanaugh has a history of writing opinions that favored the employer, narrowly interpreting worker protections and anti-discrimination laws.

In Miller v Clinton, Kavanaugh wrote another dissent saying mandatory retirement was not against the Age Discrimination in Employment Act when used against a safety inspector at a U.S. embassy overseas. He also dissented in Howard v Office of the Chief Administrative Officer of the U.S. House of Representatives. There he said the Constitution’s speech or debate clause prevented a government employee from suing for discrimination and retaliation because the case would have to disclose legislative activities. He wrote a similar opinion in Rattigan v Holder, a Title VII case.

However, Kavanaugh does seem to stand behind some private employees facing workplace discrimination. In Ayissi-Etoh v Fannie Mae, he wrote a concurrence (agreeing with the main opinion) saying that “being called the n-word by a supervisor … suffices by itself to establish a racially hostile work environment.” In Ortiz-Diaz v. US Department of Housing and Urban Development, he also concurred saying denial of a requested job transfer should always qualify as an adverse employment action.

Together, these opinions seem to suggest that as a Supreme Court Justice Brett Kavanaugh’s opinions will largely depend on which employer is doing the discrimination. While employees of private companies may be able to count Kavanaugh an ally, he seems reluctant to allow federal workers to bring claims against their government employers.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know how to argue in front of judges and justices who tend to favor employers. When the figures on the bench change, we can help you review your legal options, so you know what to expect. If you are facing sexual harassment or gender discrimination, contact us today to schedule a free consultation.

* Photo thanks to Ninian Reid, used with permission with some rights reserved.

Not all sexual harassment involves sex. Unwanted comments and physical attention can make the workplace an uncomfortable place to be. When these seemingly minor offenses pile up and make a hostile work environment, it can leave you wondering, “Is hugging sexual harassment?”

In this blog post I will discuss whether hugging is sexual harassment. I will review reports of Pixar Chief Creative Officer John Lasseter, who resigned following complaints about unwanted workplace hugging. I will also describe what employees can do if hugs are making them uncomfortable at work.

Pixar Executive Steps Down for Hugging Sexual Harassment Claims

Insiders at Disney/Pixar have long raised concerns about one of the company’s top executives, John Lasseter, for unwanted sexual advances. Lasseter describes himself as “Peter Pan”, with a jolly public persona and a reputation for greeting anyone around with lengthy bear hugs. As early as 2011, The Wall Street Journal published pictures of Lasseter hugging at least 48 people in one day at the office.

Then in November 2017, the Hollywood Reporter interviewed multiple Pixar employees who spoke out about Lasseter’s behavior anonymously, for fear it would threaten their careers in animation. One employee said he was also known for “grabbing, kissing, making comments about physical attributes.” He also had a reputation for drinking heavily at premier parties and other company social events, which would increase his behavior.

Is Hugging Sexual Harassment Under Federal Law?

Given the nature of the complaints against Mr. Lasseter, there were some who thought he had been unfairly included in the #TimesUp movement that brought to light sexual misconduct claims against Harvey Weinstein and so many others. They questioned whether hugging counts as sexual harassment.

Under Title VII of the Civil Rights Act, illegal sexual harassment includes any unwelcome sexual advances, requests for sexual favors, jokes, or slurs that are sexual in nature. Before they can be the basis for a complaint in federal court or with the Equal Employment Opportunity Commission (EEOC), the conduct must be so frequent or severe that it creates a work environment the average person would find hostile or offensive. Sexual harassment also includes circumstances where those requests or conduct result in adverse employment decisions (including quid pro quo sexual requests).

That means, under federal law, hugging can be the basis for a federal sexual harassment claim, if it happens so often that a normal person would be uncomfortable. Generally, the person complaining about the sexual harassment will need to show that she or he objected to the behavior but it continued anyway. However, in many cases, hugging is just the most obvious symptom of more serious forms of sexual harassment.

“Day of Listening” Reveals Sexual Harassment Problems at Disney

At the time the complaints became public, Lasseter agreed to take a leave of absence from Pixar. He said:

“I have always wanted our animation studios to be places where creators can explore their vision with the

John Lasseter – Photo by Vanessa Lua*

support and collaboration of other gifted animators and storytellers. . . . This kind of creative culture takes constant vigilance to maintain. It’s built on trust and respect, and it becomes fragile if any members of the team don’t feel valued. As a leader, it’s my responsibility to ensure that doesn’t happen; and I now believe I have been falling short in this regard.”

He said he was stepping down in light of “difficult” and “painful” conversations about his “missteps.” A former Pixar employee said Lasseter’s statement trivialized his behavior. The employee said:

“To sum this up as unwanted hugs is belittling and demeaning. If it was just unwanted hugs, he wouldn’t be stepping down.”

In response to Lasseter’s leave, Disney conducted a “day of listening” in February 2018. What the company heard was that Lasseter’s behavior went beyond hugging. Female employees of the animation giant learned to turn their heads quickly to avoid being kissed. They would also sit bent over in a defensive posture, with an arm across their thighs, to prevent Lasseter’s hands from “traveling.” During their investigation, Disney Animation and Pixar also learned that staff members found Lasseter increasingly domineering.

In response, in June, 2018, the Walt Disney Company announced Lasseter would not be coming back. Despite his long, prestigious career, the company decided that his hugging and other sexual behavior had harmed the company’s culture and its employees. They announced that Lasseter will take on a consulting role until the end of 2018, and won’t have an office at the company. Then he will leave permanently.

Hugging is a form of sexual harassment. If it happens frequently enough, and despite employee objections, it can create a hostile work environment and trigger a violation of federal employment law. It can also be a symptom of more severe, if less publicly visible, forms of sexual harassment that can seriously harm an employee, and a company.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know what hugging sexual harassment looks like, and the harm it can do to employees unable to avoid the unwanted sexual contact. We will take your claims seriously and help you create a plan to get you back to a comfortable working environment, including filing an EEOC complaint or federal lawsuit. Contact us today to schedule a free consultation.

* Photo by Vanessa Lua, used with permission. Some rights reserved under Creative Commons license.