Posts

Tenure, Sexual Harassment and Bullying on Law School Campuses

/

Teacher-and-student relationships are one of the most frequent pairings in the media to portray sexual harassment and bullying. In real life, when a professor or dean of a law school targets his employees and students, even a Title IX complaint often isn’t enough to address the problem. Find out how tenure rules can interfere with civil rights claims for gender discrimination in law schools and universities across the country.

In this blog post, I will review an article by the American Bar Journal, “Why are law deans not fired after investigations find misconduct with women?” I will discuss how sexual harassment and bullying are addressed at colleges and law schools across the country and how tenure can interfere with schools taking appropriate corrective action to address sexual harassment and bullying by staff against employees and students.

3 Law School Deans Resign, But Aren’t Fired, for Sexual Harassment and Bullying

Since 2016, the legal community has been seeing its share of sexual harassment complaints. Judges, partners, and even law professors are being called out for their sexual misconduct toward subordinates, employees, and students. But as the American Bar Journal noted, these complaints often don’t have satisfactory results.

Sexual Harassment Lawsuit at UC Berkeley Law School

In 2015, Dean Sujit Choudhry, of the University of California at Berkeley School of Law, was accused of sexual harassment by a former executive assistant. Tyann Sorrell said that from September 2014 to March 2015, Choudhry kissed her cheeks, hugged her, and rubbed her shoulders and arms, all over her objection. When she went to her supervisors, Sorrell says they didn’t try to stop the behavior, and instead retaliated against her.

Eventually, Sorrell had to sue the university, and Choudhry directly, for sexual harassment under Title IX Education Amendments of 1972. In March 2016, Choudhry resigned, calling the pending lawsuit a “distraction for the law school, the university, and our community.” Students on campus issued a written statement objecting to the law school’s response, saying a 10% salary cut for one year, counseling, and a written apology wasn’t enough, especially when the details were withheld from the student body.

Northern Illinois University Law School Dean Given Research Position After Sexual Harassment Complaints

Last summer, Northern Illinois University investigated sexual harassment complaints against its law school dean, Eric Dannenmaier. Two former employees filed complaints with the NIU Affirmative Action and Equity Compliance Department, saying Dannenmaier asked them intimate details about their love lives and sexual partners and invited them to his home after hours. Sarah Adamski, associate director of investigations for the NIU Affirmative Action and Equity Compliance Department found “enough information to conclude that Dannenmaier’s unwelcomed conduct of a sexual nature was severe and pervasive enough to create a hostile working environment….”

Dannenmaier was placed on administrative leave in February. He resigned on June 21, 2017. But that resignation was more of a reassignment. He continued to work as an off-campus researcher through December 31, 2017, earning a $95,000 salary.

Resignation Turns to Full-Time Employment at Northern Kentucky University

In late 2017, Jeffrey Standen, the dean at Northern Kentucky University’s Chase College of Law, resigned after the school’s Title IX coordinators investigated allegations of sexual harassment and bullying. Three employees – one full-time staff member and two student workers – filed complaints against Standen saying he looked down one employee’s dress, adjusted his crotch in front of them, asked for hugs, and commented on their clothing. They said when they would wear skirts, dresses, or leggings, Standen would ask them to arrange his bookshelves or fix a ceiling vent.

The Title IX investigation into these complaints did not result in enough evidence to support sexual harassment charges. But the report did show Standen had created an “unhealthy culture of fear, intimidation, and bullying” and violated the university’s ethical responsibilities policy. As a result, Standen resigned in December 2017. That resignation was short lived, however. He was offered a full-time faculty position the next year with a salary of nearly $222,000, making him the highest paid professor at the university.

Title IX, Tenure, Sexual Harassment and Bullying

Title IX is the portion of the Education Amendments of 1972 that applies to schools and universities. It is intended to prevent gender discrimination and sexual harassment on campus – including between faculty and other employees. The law requires schools to take reasonable steps to respond to sexual harassment complaints by staff and students alike. Each school must have a non-discrimination policy and a designated compliance officer to respond to complaints that faculty behavior has caused a hostile work or educational environment.

All three law schools described above performed Title IX investigations into the allegations of sexual harassment and bullying by their deans. But even where the investigators found a hostile environment, the harassers stayed on the payroll. When the American Bar Association looked into why the deans were not fired, the answer seemed to rest on the idea of tenure.

Saundra Schuster, an attorney at the NCHERM Group in Pennsylvania who does risk management work with universities told the ABA that there were two reasons why law deans don’t get fired for sexual harassment. First, it would cost more to defend a wrongful termination lawsuit than pay for a year of salary. Second, these are tenured faculty members, and as such are “almost impossible” to fire.

“Being a tenured faculty member is so ingrained in the hearts of faculty, particularly at high-level universities that would have law schools,” she told the ABA

According to Raymond D. Cotton, a partner at Nelson Mullins in Washington, D.C., who represents college administrators, tenure was created to protect professors’ free speech rights. His comments suggested that sexual misconduct was a result of stress the professors feel, rather than any form of power imbalance or culture of complacency. But Jennifer Drobac, a law professor at the University of Indiana’s Robert H. McKinney School of Law who studies sex harassment, says:

“The problem is that most universities don’t have the guts to terminate these people, typically men, who are engaging in this behavior,” Drobac says. “They will often rotate them out of administration and back onto the faculty.”

She takes the position that when tenured professors or deans violate the law by sexually harassing staff or students, they can and should lose their job. This is not a matter of free speech or protecting the controversial ideas of faculty, it is about responding to real complaints about sexual harassment and bullying on America’s law school campuses.

At Eisenberg & Baum, LLP, our sexual harassment attorneys help employees facing gender discrimination on the job, including on campus. If you are face a hostile work environment, we can help you make sure your complaints are heard. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

EEOC Reconvenes Expert Task Force Against Workplace Sexual Harassment

/

The #MeToo and #TimesUp movements have drawn the nation’s attention to the prevalence of workplace sexual harassment. Now the Equal Employment Opportunity Commission (EEOC) has taken notice. It has reconvened its expert task force, first formed in 2015, to develop strategies to fight back against workplace sexual harassment.

In this blog post, I will discuss the work of the EEOC’s Select Task Force on the Study of Harassment in the Workplace. I will review the laws protecting employees from discrimination and harassment at work, and I will discuss previous actions by the task force to prevent workplace sexual harassment.

Workplace Sexual Harassment and Gender Discrimination Account for Nearly 1/3 of EEOC Complaints

Workplace sexual harassment and gender discrimination have been against federal law since Congress passed Title VII of the Civil Rights Act of 1964. The law make it illegal for employers to make employment decisions based on a person’s sex or gender. When unwanted sexual advances occur in the workplace, the law says employers are required to take reasonable steps to stop and correct the conduct.

But simply having these laws on the books does not ensure a safe space for workers of all genders. That requires diligent enforcement. In 2017, the EEOC received 25,605 complaints related to sexual harassment and gender discrimination — over 30% of all the agency’s cases. That percentage has been consistent since 1997, even as the total number of complaints has varied over time.

2015 Task Force Asked How to Enforce National Anti-Discrimination Laws

In 2015, in response to the challenges in enforcing anti-discrimination laws and preventing workplace sexual harassment, the EEOC put together a Select Task Force on the Study of Harassment in the Workplace. The Select Task Force was chaired by EEOC Commissioner Chai Feldblum and current Acting EEOC Chair Victoria A. Lipnic. Over the course of 18 months, this 16-member panel received testimony from over 30 witnesses and numerous public comments. Insights came from across the country, including testimony from social scientists, sociologists, psychologists, investigators, workplace trainers, lawyers, employers, and employee advocates. At the end of the investigation, the Select Task Force released its findings:

  • Workplace harassment remain a persistent problem
  • Three out of four victims of workplace sexual harassment don’t file a formal report
  • Businesses and workers benefit from preventing harassment, instead of simply avoiding litigation
  • Anti-harassment initiatives must start at the top and include accountability for management
  • Training needs to be focused on workplace culture and be tailored to each workplace
  • “Bystander intervention” and “civility training” methods may work better than other training alternatives
  • A nationwide “It’s On Us” initiative may be necessary to empower the victims of harassment

#MeToo and #TimesUp Movements Raise National Awareness

As it turned out, that nationwide push to for change in workplace culture didn’t happen because of a government-funded initiative. Instead, it came from social media. In late 2017, the hashtags #MeToo and #TimesUp filled Twitter, Facebook, and other social media platforms with the stories of sexual harassment survivors. They called for change in some of the biggest companies in the country, and in the federal government. And they drew attention to the long-buried truth that workplace sexual harassment can happen in any industry, and at any level within the corporate structure.

EEOC Reconvenes Its Special Task Force in Response to Public Demand

The EEOC responded to the public outcry for accountability by announcing that the Select Task Force on the Study of Harassment in the Workplace would be coming together again on June 11, 2018. The meeting was called “Transforming #MeToo into Harassment-Free Workplaces” and was open to the public. EEOC Commissioner Chai Feldblum said:

“Our challenge is to use this #MeToo moment well. We have a road map given the work we have done at the EEOC. We have the attention and commitment of the range of different actors in society that we need. Together, we can channel that energy to create significant and sustainable change.”

The meeting brought together 8 panelists — all women — who spoke on different aspects of the problem, as well as potential solutions:

  • Elizabeth Tippett, of the University of Oregon School of Law, addressed legal issues and warned against responding solely to sexual harassment in the legal sense. She said “In doing so, [state legislators and employers] risk laying a foundation for the next crisis, whether it involves other forms of harassment, or discrimination and retaliation.”
  • Debra Katz, of Katz, Marshall and Banks, showed how legal defenses and loopholes within Title VII and state laws allow workplace sexual harassment to continue, at great cost to the individuals facing it on the job.
  • Kathleen McKenna, of Proskauer Rose, who represents employers, spoke about the use of arbitrationand non-disclosure agreements to reduce litigation of sexual harassment complaints.
  • Suzanne Hultin, with the National Conference of State Legislatures, talked about the legislative efforts at the state level to move “beyond federal regulations to prevent workplace sexual harassment.”
  • Jill Geisler, of the Newseum’s Freedom Forum Institute, described the Power Shift Project being used by media organizations and newsrooms to address sexual misconduct.
  • Kasey Nalls, of the union UNITEHERE, described the hospitality industry’s “Hands Off Pants On” campaign to protect hotel workers from sexual harassment.
  • Erin Wade from the restaurant Homeroom, demonstrated the color-coded alert system they developed for wait staff and managers to address harassing conduct by customers and create a safe workplace for staff.
  • Jess Ladd, of the non-profit Callisto, explained the online reporting and documentation platform her organization had developed to match victims of similar sexual harassment incidents together and connect them with legal advocates.
  • Lisa Gelobter, of tEQuitable, described her company’s independent platform to proactively address issues of bias, discrimination and harassment at work.

The Task Force also heard from other legal scholars and attorneys, and from an unnamed panelist who discussed strategies for employers and unions to promote harassment-free workplaces. All the panelists provided written statements, which are available on the EEOC’s website.

If the work done by the Special Task Force in 2015 is any indication, it may be some time before the public sees a result from the meeting and the witnesses’ testimony. But the hope is that by meeting publicly, and publicizing the witnesses’ statements, employers, unions, and employee advocates can start pushing for changes now that could prevent workplace sexual harassment in the future.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have decades of experience protecting the civil rights of women, minorities, and workers facing workplace sexual harassment. We use informal negotiation, arbitration, and traditional Title VII litigation to advocate for innovative prevention strategies to protect our clients and make their offices and work sites better places to work. Contact us to schedule a consultation.

Employers: Are Your Supervisors Likely to Sexually Harass Your Employees? Science Helps You Find Out

/

You can’t truly know person from his or her interview. As an employer, every hire runs the risk of turning your office into a hostile work environment and opening your company up to sexual harassment complaints. Scientists have created a survey that can help you estimate if your supervisors are likely to sexually harass your employees.

In this blog post I will discuss Psychologist John Pryor’s “Likelihood to Sexually Harass Scale”. I will talk about an employer’s responsibility to respond to sexual harassment allegations, and explain how working with an employment discrimination attorney early, and informally, can help the company.

Sexual Harassment Is Not a New Problem

The #MeToo movement on social media has brought issues of sexual assault and workplace harassment to a new level of national awareness. But unwanted sexual attention at work is not a new problem. A closer look at the complaints against media moguls, politicians, and corporate CEOs reveals that this behavior has been going on for decades. So have the efforts to stop it.

Title VII of the Civil Rights Act, first enacted in 1964, recognized the need to protect employees of all genders from unwanted sexual advances, quid pro quo offers for sexual favors, and physical or verbal abuse. The law held employers, supervisors, and managers responsible for sexual misconduct that happened on their watch. Since then, the EEOC and private sexual harassment lawyers have been working, one case at a time, to defend employees’ right to work without sexual harassment or gender discrimination.

“Likelihood to Sexually Harass Scale” Gives Employers a Tool to Protect Workers

The scientific community has been working on the issue of sexual harassment as well. For over 30 years, Psychologist John Pryor, a professor at Illinois State University, has been working to find a way to sniff out problem employees and supervisors before they create hostile workplaces. Pryor first created his “Likelihood to Sexually Harass Scale” in the 1980’s to see if male supervisors’ behavior changed if they felt they could get away with sexual harassment.

He created a survey that tested sexual coercion — the willingness of a person in power to offer a bribe or threaten punishment for sexual cooperation. The test asked men to put themselves in 10 power positions: hiring a new assistant, promoting coworkers, and disciplining subordinates. It asked about their willingness to connect those decisions with romantic or sexual decisions. Then it compared their responses to those of known harassers. Over time, Pryor and his team put together a pattern of thoughts and behaviors of participants most likely to sexually harass employees:

  • Lack of empathy
  • Belief in traditional gender roles
  • Tendency toward dominance or authoritarianism
  • Feeling impunity or the belief they will get away with it

Generally, the more powerful a person felt, the more likely he was to cross the line into sexual harassment. That makes managers and supervisors more likely to sexually harass their employees than their less powerful counterparts.

Employers’ Duty to Prevent and Address Sexual Harassment

No one can control what another person says or does. There is no way for employers to stop every instance of sexual harassment. However, if you don’t respond to concerns raised by your employees, it could expose you to legal consequences.

The best way to address sexual harassment is to prevent it from happening. Commercial or even consumer versions of Pryor’s study could be a place to start, helping to identify high-risk employees. Managers and supervisors, particularly those who score as highly likely to sexually harass, can be required to attend training that outlines the law and company policies against sexual harassment and gender discrimination. You can also minimize the chances of harassment by requiring a third party be present in moments of high power dynamics (like hiring, promotions, reviews, and terminations).

When prevention fails, employers must take reasonable steps to address the sexual harassment that occurs. Depending on the circumstances, this could include disciplining the offender, rearranging shifts or assignments to separate the parties, reinstating lost positions or paying lost wages, and implementing procedural changes to keep it from happening again. Whatever you do, it is important that you protect the victim from retaliation, or you could be facing a separate gender discrimination claim on that alone.

Resolving Sexual Harassment Complaints

Employers have a lot to consider in addressing a sexual harassment claim. You need to balance the cost of defending litigation or EEOC charges against a lawsuit’s ability to disrupt your business. Often, the best answer is to resolve the matter privately by negotiating with the employee’s employment discrimination attorney or the EEOC investigator.

Informal mediation, negotiation, and other alternatives to public court can protect your business and your employee’s interests. Often, your employee is just as interested in resolving the matter quickly and quietly as you are. If you find yourself facing a sexual harassment complaint that could escalate, it is often better for business if you set your pride aside and work with your employee’s attorneys, rather than simply promising to “see them in court.”

At Eisenberg & Baum, LLP, our experienced sexual harassment attorneys understand the balance between prevention and an employer’s reasonable response. We are often happy to work with our clients’ employers informally to resolve sexual harassment complaints without the unnecessary publicity that can come with a federal complaint. If you are an employee facing sexual harassment and want an attorney who will respect your priorities, as well as defend your interests, contact us today to schedule a free initial consultation and understand the options for your case.

​42% of Women Report Gender Discrimination at Work

/

For the past several months, the news has been full of reports of women (and men) raising complaints of gender discrimination and sexual harassment. But are these isolated incidents, or a glimpse at a bigger, societal problem? A survey by the Pew Research Center says that nearly half, 42%, of women report gender discrimination at work.

In this blog post, I will review the Pew Research Center gender discrimination survey. I will describe what gender discrimination at work looks like, and what women (and men) can do if they believe they are being treated improperly.

Pew Research Center Survey Says Gender Discrimination Predates #MeToo Movement

In December, 2017, the Pew Research Center released survey results showing that 4 in 10 women have faced workplace discrimination because of their gender. Survey results included everything from small slights to overt sexual harassment. Lest readers think that this high frequency is due to all the recent publicity of gender discrimination issues, Pew made clear that the survey was conducted between July 11 and August 10, 2017 — months before the #MeToo movement was making headlines. The survey shows that gender discrimination issues are widespread, and are much more than simply the issue of the moment.

25% of Women Report Wage Discrimination

One of the largest areas of concern was wage discrimination. Gender-based pay gaps were a concern for one in four working women, who said they have earned less than a man in the same position. Only 5% of men report making less than a female coworker.

The Equal Pay Act and Title VII of the Civil Rights Act make it illegal for employers to pay women less for the same work as men. This includes everything from salary or hourly wage to bonuses and benefit packages. When an employer uses gender biases to set compensation, employees are entitled to file a complaint with the EEOC to receive additional compensation.

However, the issue of wage discrimination can be complicated by defenses that the employer based compensation on seniority, assignments, employment history, or other gender-neutral factors. When an employee determines that they are being paid less than their other-gendered coworkers, they should talk to an employment discrimination attorney to develop a strong case for wage discrimination.

Women 4 Times as Likely as Men to Experience Competence Questions and Subtle Slights at Work

Pew reports that 23% of women have been treated as though they were not competent at work (compared to 6% of men). 16% reported repeated small slights on the job, and 15% reported receiving less support from senior leaders at work. 10% have been passed over for important assignments.

These apparent small slights are often not enough to prove gender discrimination on their own. Title VII gender discrimination claims must show that gender-based treatment has become so severe or pervasive that it creates a hostile work environment that would negatively affect a reasonable employee.

However, small slights like shift and task assignments or comments about a person’s competence are often signs of bigger problems bubbling just below the surface. An experienced gender discrimination attorney can help employees gather the proof and connect the dots to put together a successful case for gender discrimination under Title VII.

22% of Women Have Personally Experienced Sexual Harassment

The Pew survey distinguished between sexual harassment and the broader issue of gender discrimination. Legally speaking, sexual harassment can occur when employment decisions are made based on a person’s refusal of sexual advances by a superior or coworker. Sexual harassment claims also arise when an employer fails to respond to employee complaints about repeated sexual misconduct or unwanted advances in the workplace.

This is where the #MeToo movement has had the biggest effect on later survey results. An ABC News/Washington Post survey conducted in October found much higher numbers, including 54% of women saying they had received unwanted sexual advances. 30% of these happened at work. An NPR poll in November revealed 35% of women had personally experienced sexual harassment.

Depending on the severity of the sexual harassment, it may only take a single act to establish a Title VII complaint. For example, being fired for refusing sex is itself a strong basis for a sexual harassment claim. In other cases, though, a successful sexual harassment claim is made up of a number of less serious unwanted sexual statements or actions. A sexual harassment attorney can help you develop your strongest case and get the relief you need.

Gender discrimination and sexual harassment are problems that affect women and men in every industry, all across the country. More than just a social media movement, these issues have far ranging effects, touching nearly half of all women who work. At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have been working to protect the civil rights of women, minorities, and workers for decades. We know what it takes to bring a Title VII case, and we can help you get relief, rather than simply counting yourself as part of the statistics. Contact us to schedule a consultation.

Sexual Harassment When the Boss Is a Woman

/

The #MeToo movement on social media has emboldened the victims of sexual harassment — both women and men — to come forward and tell their stories. Men from the entertainment industry to the capitol have stepped down in the wake of sexual misconduct allegations. But what happens to the victims of sexual harassment when the boss is a woman? Does the law protect men too?

In this blog post I will discuss the allegations of sexual harassment against congressional candidate Andrea Ramsey of Kansas. I will review the laws regarding sexual harassment and how they apply when the boss is a woman. I will also explain how men can respond to sexual harassment at work.

#MeToo Sexual Harassment Allegations Raised Against Female Congressional Candidate

On December 15, 2017, news broke in the Kansas City Star of another #MeToo sexual harassment scandal. The news outlet reported on a 2006 sexual harassment lawsuit relating to the local Democratic candidate for Congress. But there was one major difference between this story and the allegations against Representative Conyers or Republican candidate Roy Moore. This time, the candidate was a woman: Andrea Ramsey.

In 2005, Ramsey was the executive vice president of human resources for a private company called LabOne. One of her male subordinates, Gary Funkhouser, filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming Ramsey sexually harassed him and retaliated against him for rejecting her sexual advances. The complaint alleged that Ramsey (then Andrea Thomas) subjected him to “unwelcome and inappropriate sexual comments and innuendos.” It said she made sexual advances toward him on a business trip, and that when he refused them she stopped talking to him and his performance reviews were suddenly far worse. On June 13, 2005, he was fired.

The EEOC performed an investigation, and was unable to conclude whether Title VII of the Civil Rights Act had been violated. However, it also didn’t exonerate LabOne or Ramsey’s conduct. Instead it notified Funkhouser of his right to sue, which he did.

Ramsey was not named as a party in the federal lawsuit because she was not the employer, LabOne was. She was therefore not involved in the defense of the case or any settlement negotiations. She continues to deny the allegations, even after the company eventually settled the sexual harassment lawsuit in 2006.

Now, the settlement has become public in response to the #MeToo movement and has caused Ramsey to withdraw from the 2018 congressional race. She told the New York Times that the Democratic Party had implemented a “zero tolerance standard” against sexual harassment allegations and was refusing to support her. On December 15, 2017, she officially ended her campaign.

Title VII Protects Against Sexual Harassment When the Boss Is a Woman

The facts in Funkhouser’s allegations are not that unusual in a sexual harassment lawsuit. Plaintiffs across the country face unwanted sexual advances by their supervisors. All too often, when employees reject these advances, negative performance reviews and retaliatory firings are the result.

However, male employees are sometimes less likely than their female counterparts to complain when sexual harassment happens. Cultural differences can make it more embarrassing for men to publicly object to sexual attention by the women around them than women in the same position, particularly when the woman is their boss or supervisor. Because of this, some men may believe there is nothing they can do to prevent sexual harassment when the boss is a woman.

In fact, these forms of sexual harassment are illegal under Title VII of the Civil Rights Act, no matter which genders are involved. Sexual harassment when the boss is a woman is just as illegal as when a man does it. When men face sexual harassment at work, including being fired for refusing sexual advances, they can be compensated for their losses through the EEOC, or in federal court.

If you are facing sexual harassment from your female boss, an experienced employment discrimination attorney can meet with you confidentially to help you develop your claim and protect your rights. At Eisenberg & Baum, LLP, our sexual harassment attorneys will help you collect your documents, file the necessary claims, and represent you in court. Contact us to schedule a consultation. We stand up for you against sexual harassment, even when the boss is a woman.

Sexual Harassment, Non-Disclosure Agreements, and Bill O’Reilly

/

Sexual harassment claims have been flying through the media over the last year. The Weinstein Co., Fox News and Bill O’Reilly, and even President Trump have been the target of sexual misconduct allegations. In each of those cases, non-disclosure agreements were used to silence the claims and avoid legal consequences. So why would anyone agree to sign one?

In this blog post I will review the non-disclosure agreements used by Bill O’Reilly and the Weinstein Co. to prevent sexual harassment and misconduct allegations from going public. I will discuss the use of non-disclosure agreements for both employers and employees, and why a worker facing discrimination would be willing to sign one.

Sexual Harassment, Employment Discrimination, and Non-Disclosure Agreements

The #MeToo movement has been around for a while, now. Often, the allegations that hit the media are years, or even decades old. There are many reasons why the victims of sexual harassment or abuse may choose not to tell their story publicly. But sometimes the delays more legal than personal.

Local, state, and federal laws, including Title VII of the Civil Rights Act, make it illegal for supervisors, managers, and employers to harass or discriminate against their employees because of their sex or gender. The victims of sexual harassment and other forms of gender discrimination can turn to the Equal Employment Opportunity Commission or private employment discrimination attorneys to get compensation for sexual misconduct.

In many cases, that involves a lawsuit in federal court, but sometimes the issues can be resolved informally. When sexual harassment allegations resolve out of court, the settlement agreements can include a variety of remedies, including money damages for lost wages and other expenses, changes to workplace policy, and other compensation for harm done. In exchange, the employee gives up his or her right to sue for, and in many cases even talk about what happened on the job by signing a non-disclosure agreement (NDA).

Sexual Harassment Allegations Against Television Big-Wigs Silenced by NDAs

Harvey Weinstein and Bill O’Reilly each faced delayed sexual harassment allegations last year as part of the #MeToo movement. In each case, their companies (the Weinstein Co. and Fox News) had made use of non-disclosure agreements to resolve the matters quietly and minimize media attention. Even then-candidate and reality-TV-star Donald Trump, by his attorney Michael Cohen, used an NDA to silence claims of sexual misconduct in 2016. When confronted with the fact that his lawyer had entered into an NDA with porn star Stormy Daniels, the President defended the decision, calling NDAs “very common among celebrities and people of wealth.” However, the terms of those non-disclosure agreements and the circumstances surrounding them can sometimes cross the line from settlement to cover up.

Bill O’Reilly’s NDAs Go Beyond Silence

The settlement agreement between Bill O’Reilly and Andrea Mackris and Rebecca Gomez Diamond was recently released by order of a United States District Court Judge. The contract went beyond non-disclosure. In addition to strict confidentiality, it required both the women, and their attorneys to turn over evidence related to the allegations, making it harder for them to prove any future case. If any of these materials ever became public, Ms. Mackris was required to disclaim them “as counterfeit and forgeries” — in other words, to lie.

As part of the settlement, Ms. Mackris’s attorneys, Benedict P. Morelli & Associates also agreed to provide legal advise to Mr. O’Reilly on sexual harassment issues, and not to take on new clients with sexual harassment claims against O’Reilly or Fox News. These clauses essentially removed the firm from the pool of experienced employment discrimination attorneys available to fight for Fox’s employees’ rights. This also raise ethical questions, since M. Mackris was required to waive any conflict of interest claims against Fox or the law firm.

The Weinstein Co. Terminates Non-Disclosure Agreements

The Weinstein Co. recently announced that former CEO Harvey Weinstein also “used non-disclosure agreements as a secret weapon to silence his accusers.” While those agreements have not been made public, over 70 women have accused Weinstein of some form of sexual misconduct, up to and including rape. Weinstein was forced out of his company last year as a result of the allegations. Now the company has formally released the victims from any non-disclosure agreements they may have signed, saying:

“The Company expressly releases any confidentiality provision to the extent it has prevented individuals who suffered or witnessed any form of sexual misconduct by Harvey Weinstein from telling their stories. No one should be afraid to speak out or coerced to stay quiet.”

However, the announcement was coupled with the Weinstein Co. filing for bankruptcy and Lantern Capital Partners agreeing to purchase substantially all the company’s assets. This could significantly limit any recovery the Weinstein employees may have.

Why Would Sexual Harassment Victims Sign NDA Settlement Agreements?

With all the bad press, it can be easy to question why sexual harassment victims would agree to sign settlement agreements that include non-disclosure agreements. Why not just go to court?

There is no such thing as a “typical” sexual harassment victim. Employees facing gender discrimination come from every industry, and have a wide variety of life experiences. Some of those circumstances can make private settlement agreements more attractive than a drawn out court battle. Sexual harassment victims may agree to sign a non-disclosure agreement if they:

  • Plan to return to the workplace or seek employment from a competitor
  • Need financial compensation quickly to cover life expenses, medical bills, or mental health costs
  • Value privacy for themselves or their families
  • Could face a counter-suit for wrongdoing at work or violation of company contracts

A private settlement agreement can be a better solution for both employee and employer alike. It can resolve the matter quickly and privately and protect everyone’s interests. However, as with any contract, it is the details that matter. When NDAs try to cover up criminal behavior, the court may not even enforce them.

What Non-Disclosure Agreements Don’t Cover

A non-disclosure agreement is usually paired with a promise not to sue. This waives any right to civil compensation that the sexual harassment victim may have. It also says the person can’t go to the media or discuss the matter with coworkers or future employers. But it does not forgive criminal behavior. If a person has faced sexual assault, he or she can still go to the police and report the crime. In most cases, this will not be a violation of the NDA. Sometimes, it can even cause the judge to void the NDA altogether.

But the employees who sign the non-disclosure agreements may not know the difference. An ex-assistant of Harvey Weinstein told the UK’s MPs that she felt pressured to sign the NDA with Miramax Films, and she believed that if she ever discussed the issue in detail — even with mental health counselors or legal representatives — she would be breaking the law and could be sent to jail. She had no idea that the terms of the settlement agreement may have been unenforceable. She told the Women and Equalities Committee:

“There cannot be a legal document that protects criminal behaviour.”

There are valid reasons for sexual harassment victims to sign non-disclosure agreements as part of out-of-court settlements. A swift and quiet resolution to issues can sometimes be best for everyone. But employees need to know the impact those NDAs can have, and when they cross the line into an illegal cover up.

At Eisenberg & Baum, LLP, our employment discrimination and sexual harassment attorneys know how to work settlement agreements and non-disclosure agreements to our clients’ advantage. If you are facing an out-of-court settlement, we can help you review the language, so you know what you are getting, and what you are giving up. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

New York City Council Passes Stop Sexual Harassment in NYC Act

/

The size and diversity of New York City puts employees of all different types, and genders, in close contact. Sometimes, that can result in sexual harassment. In response to the #MeToo and Stand Up movements sweeping the nation, the New York City Council has decided to take the lead, passing the “Stop Sexual Harassment in NYC Act.” But will it be enough to change hearts and minds?

In this blog post I will discuss the Stop Sexual Harassment in NYC Act recently passed by the New York City Council. I will explain what the bills do to fight sexual harassment, and whether some experts believe it will be enough to change hostile workplace culture.

On April 11, 2018, the New York City Council passed one of the strictest anti-sexual harassment ordinances of any state or municipality in the United States. The “Stop Sexual Harassment in NYC Act” goes well beyond federal, or even state Civil Rights laws, to explicitly protect NYC employees from harassment on the job.

The Stop Sexual Harassment in NYC Act Creates Protections for Public and Private Employees

The Stop Sexual Harassment in NYC Act is actually a package of bills, each of which adds, strengthens, or amends existing civil rights ordinances already in place within the city. The Act is designed to extend protections to every NYC employee, whether they work for the government, a large private employer, or a small business in the boroughs.

The package of bills contain a number of sexual harassment protections. The NYC Human Rights Law (NYCHRL) has been amended to explicitly ban sexual harassment, and the city has called on Congress and the President to pass federal bill S.2203/H.R.4734, “Ending Forced Arbitration of Sexual Harassment Act of 2017.”

(Read More about mandatory arbitration in employment contracts.)

For city government agencies, and the offices of the borough presidents, comptroller and public advocate, the Act also requires:

  • Annual reports of sexual harassment incidents to the Department of Citywide Administration Services
  • Annual climate surveys of public employees to gauge awareness of federal and local civil rights protections
  • Production of sexual harassment prevention and response policies from all contractors and subcontractors working for the city
  • Broad review of city policies by the newly founded Charter Revision Commission

In the private sector, the Act:

  • Amends the NYCHRL to remove the minimum employee limit
  • Requires anti-sexual harassment posters be displayed at all work sites
  • Extends the time period to file a sexual harassment claim from 1 to 3 years after the incident

The most ground-breaking provision of the Stop Sexual Harassment in NYC Act is that it requires annual anti-sexual harassment training for all public agencies and private employers with at least 15 employees. The City Commission on Human Rights has been directed to put together a website including an online training program designed to prevent sexual harassment through employee education.

The New York City Council is proud to be putting forward such an aggressive set of regulations. Speaker Cory Johnson said in a statement:

“With the #MeToo and the Time’s Up movements, we have seen that women are forces to be reckoned with, and they made loud and clear that enough is enough. The beginning of the end starts with New York City. All New Yorkers are entitled to a safe, respectful workplace, and this package of legislation sends a strong message to public and private employers that there is no place for sexual harassment in our City.”

Commentators Question Effectiveness of Online Anti-Sexual Harassment Training

The Stop Sexual Harassment in NYC Act is one of the first of its kind, mandating annual anti-sexual harassment training across public and private employers. But some commentators are questioning whether the Act will be effective in changing workplace behavior. Jackie Wattles and Julia Carpenter, of CNN Money, explain that many large employers already use the kind of “online interactive” program that would satisfy the Act’s annual training requirement. They say:

“Frequently they are slide after slide of graphics depicting scenarios in which a male colleague makes an inappropriate advance or remark about a female colleague. The multiple-choice questions require you to select an often unrealistic ‘right answer.’

It’s easy to click your way through such trainings and forget it ever happened. Research shows the training videos are not as effective as once thought.”

They say that where sexual harassment is already a part of workplace culture, mandatory training videos won’t solve the problem. And when training illustrations focus on stereotypical demographic arrangements — such as a white man is harassing a woman of color — they can even have the opposite effect, leaving men feeling “blamed, isolated, or angered.”

Instead, Wattles and Carpenter encourage New York City employers to engage in training tailored to specific workplaces over cookie-cutter training programs. They also said programs are much more effective when they focus on bystander intervention and empower men to help stop the problem, rather than calling out mistakes that could be made.

The New York City Commission on Human Rights has until April 2019, when the bill takes effect, to create its online training program. Creating a one-size-fits-all solution that will adequately address the spectrum of anti-sexual harassment needs is a tall order. It will take time to test the effectiveness of any solution put forward and to tweak the system to do the most good for New Yorkers facing sexual harassment at work.

If you are facing sexual harassment or other forms of gender discrimination at work, the sexual harassment attorneys at Eisenberg & Baum, LLP, are here to help. From our headquarters in the heart of New York City, we represent the victims of hostile work environments in state and federal court, and in front of regulatory agencies at every level of government. We can help you understand your rights and choose the best option to protect your interests. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

When Do I Have To Report Sexual Harassment?

/

The news for the last few months has been full of sexual harassment allegations from decades ago. High-powered men from Hollywood producer Harvey Weinstein to long-time congressman John Conyers have faced allegations that they sexually harassed women in their employ years before. But could those allegations still result in civil rights lawsuits? Or is it too late to report sexual harassment?

In this blog post, I will review the statute of limitations under Title VII of the Civil Rights Act and other deadlines to report sexual harassment. I will explain how this could affect the decades-old allegations that have arisen in the news, and what you need to do if you think you have a sexual harassment claim.

Deadlines to Report Sexual Harassment at Private Companies

Years-old sexual misconduct allegations may make good news headlines, but they don’t provide relief to employees. Federal anti-discrimination laws, including Title VII of the Civil Rights Act, give workers a limited period of time to file a sexual harassment charge.

If you work for a private employer, you have 180 days after the incident to file your complaint. If a state or local law applies to your case, the filing deadline could be extended to 300 days after the incident. Internal H.R. complaints or private arbitration do not extend this deadline, so it is wise to start the reporting process as soon as possible.

Statute of Limitations for Federal Government Employee Complaints

Federal employees face an even tighter timeline to report sexual harassment at work. Many federal employees must contact the EEO Counselor at the agency within 45 days of incident. Congressional employees may have 180 days under the Congressional Accountability Act. Then most federal EEO complaints will be referred to internal mediation or other dispute resolution programs. If the case is not resolved in that process, federal employees must file a formal complaint within 15 days of receiving a about how to file.

Calculating When a Sexual Harassment Incident Start the Clock

It may be easy to measure when overt sexual harassment happens. But in other cases it can be difficult to determine when the incident starts the clock on the statute of limitations. When there is more than one incident of discrimination involved, a separate deadline applies to each event. For example, if your supervisor approached you for sexual relations in exchange for promises of a raise or promotion in March, June, and July, you would need to file a complaint about the first behavior by November. Under the 180 day statute of limitations, if you waited until January or February to file your complaint, you would only be able to collect damages related to the later incidents.

However, in harassment cases, while you still must file your complaint within 180 or 300 days of the latest incident, the Equal Employment Opportunity Commission (EEOC) will look at all incidents of harassment, even if they happened months or even years before. This is because, a successful sexual harassment claim requires employees to show a pattern of offensive behavior over time.

Getting a Sexual Harassment Complaint Started

Getting a sexual harassment complaint started often depends on the internal policies of your company. Especially if you are a member of a union, you may need to complete your employer’s complaint process before you file with the EEOC. With the short deadlines to report sexual harassment, it can sometimes be challenging to file a formal complaint in time to receive full compensation for your damages.

At Eisenberg & Baum, LLP, our employment discrimination and sexual harassment attorneys can step in to your case even while you are still at the internal review stages. We can help you ensure you meet federal, state, and local requirements, and report sexual harassment before the statute of limitations expires. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

Privacy in Reporting Sexual Harassment

/

It can be intimidating to face sexual harassment at work. But for many, reporting that discrimination can be just as stressful. Find out why privacy in reporting sexual harassment is so important, and how you can protect your confidentiality and your dignity at the same time.

In this blog, I will discuss why privacy is important in reporting sexual harassment within a company. I will also address how informal negotiations and settlement agreements can protect the privacy of both employers and employees.

Title VII and Sexual Harassment

Title VII of the Civil Rights Act protects against gender discrimination and sexual harassment. The law prohibits an employer from basing workplace decisions on a person’s gender, or his or her responses to sexual advances. It also requires employers to take steps to prevent and address gender-based conduct that creates a hostile work environment. This could include:

  • Unwanted requests for sexual favors
  • Verbal harassment of a sexual nature
  • Physical contact of a sexual nature
  • Unwanted flirting or sexual advances
  • Offensive remarks about a person’s gender or traits related to gender stereotypes
  • Offensive comments about a person’s gender as a whole

These behaviors must be more than simple teasing or isolated, minor incidents. However, the more frequent or objectively objectionable the conduct, the more likely it will be considered illegal sexual harassment.

The Risk of Reporting Sexual Harassment

It can be intimidating to report any form of discrimination, particularly when the person you are reporting is your superior, manager, or boss. Many employees are rightfully concerned that if they complain about the way they are being treated it could get worse. They may fear retaliation in the form of negative reviews, unfavorable shifts or assignments, or even being terminated. Retaliation for filing a sexual harassment complaint is illegal, but it still happens. That’s why it is important that privacy be built in to any employee reporting procedure.

Ideally, any internal reporting procedure will allow for employees to report illegal sexual harassment and other forms of discrimination confidentially and anonymously. This protects the identity of the victims and witnesses and encourages people to come forward. In investigating these claims, human resource professionals and other decision-makers may well learn these identities. However, this information should be protected and not disclosed to the alleged harasser. This can be difficult in small companies with fewer employees, but it is important to protect staff from hostility and illegal retaliation for filing their complaints.

Resolving Sexual Harassment Privately

When internal complaints don’t work, you may need to file a complaint with the Equal Employment Opportunity Commission (EEOC). But many employees don’t want to file a formal complaint or lawsuit because they can be visible to the public. The EEOC’s informal investigation and negotiation processes protects employee privacy while still bringing the force of gender discrimination attorneys and EEOC investigators to bear in negotiating on your behalf.

When these negotiations work, they can result in confidential settlement agreements rather than a publicly accessible judgment. These settlement agreements can be tailored to your needs, whether that’s removing the harasser, giving you a different but comparable assignment, or paying for you to separate from the company entirely. It also protects you from having to testify in front of a judge or public jury about potentially private and sensitive experiences.

Privacy in Reporting Sexual Harassment Benefits Employers Too

Sometimes, keeping things private is mutually beneficial. There are many reasons why an employer may prefer a sexual harassment complaint to remain private, including:

  • Negative effects on the business’s reputation
  • Bad publicity from local and even national news
  • Possible supplemental complaints from other employees in similar circumstances.

For example, a sexual harassment claim by news anchor Gretchen Carlson started a year of very public complaints and litigation against Fox News, CEO Roger Ailes, and reporter Bill O’Reilly. It resulted in expensive settlements and several high-level executives resigning from the company.

To avoid this, many employers will agree to various private resolutions to sexual harassment claims. This may include negotiations with your union representative or private sexual harassment attorney, or participating in EEOC informal resolution processes, private arbitration, or mediation.

Which method is best for you will depend on your circumstances and what you hope to accomplish from your sexual harassment complaint. At Eisenberg & Baum, LLP, we have sexual harassment attorneys ready to help you fight back against sexual harassment at work. We will meet with you and develop a strategy to protect your privacy and get you back to a comfortable working environment. Contact us today to schedule a free consultation.

The #MeToo Movement Hits the Judiciary: California Federal Court Judge Alex Kozinski Steps Down

/

The #MeToo movement seems to have swept into every industry and sector, from Hollywood to Washington. Sexual harassment allegations have hit the judiciary as well, shining light on problems within the courts themselves. Now that California Federal Circuit Court Judge Alex Kozinski has stepped down, people within the American Bar Association are calling for change nationwide.

In this blog post I will review the sexual harassment allegations against United States Circuit Court Judge Alex Kozinski. I will explain whether Title VII applies to professional associations and discuss what some are saying bar associations should do to respond to the #MeToo movement.

Allegations Against Judge Kozinski Date Back Decades

Circuit Court Judge Alex Kozinski has served as a U.S. Court of Appeals judge for the 9th Circuit in California for 35 years, a term that included a rotation as chief judge. He had a public reputation for writing irreverent and sometimes humorous opinions, and being in the public eye. He also had a more private reputation for behavior that sometimes crossed the line from bad jokes to sexual harassment of his law clerks and other staff.

In the wake of the #MeToo movement, six of those clerks came forward, telling the Washington Post about their experiences with the judge. Heidi Bond, who clerked for Kozinski in 2006 and 2007, claimed that the judge had called her into his office and asked her opinion on whether pornography appeared photoshopped.

“I was in a state of emotional shock, and what I really wanted to do was be as small as possible and make as few movements as possible and to say as little as possible to get out,” Bond said.

Emily Murphy, who worked for a different 9th Circuit judge, reported that Judge Kozinski approached her and several other clerks at a reception in San Francisco in 2012. She alleged that he suggested she exercise naked and kept steering the conversation back to that idea.

“It wasn’t just clear that he was imagining me naked, he was trying to invite other people — my professional colleagues — to do so as well,” Murphy said. “That was what was humiliating about it.”

Both clerks have emails and other evidence supporting their allegations. Others shared similar stories anonymously for fear of retaliation by Kozinski or others in the judicial system.

The Washington Post article isn’t the first time Judge Kozinski has faced complaints about sexual behavior at work. In 2008, the Los Angeles Times reported that he had been censured after a judicial investigation found he had carelessly used a private server to distribute crude, sometimes sexually themed jokes.

Kozinski initially denied any wrongdoing and promised to fight the sexual harassment allegations. However, on December 18, 2017, he announced his immediate retirement saying:

“I cannot be an effective judge and simultaneously fight this battle. Nor would such a battle be good for my beloved federal judiciary.”

Reporting Sexual Harassment Within the Judiciary

Federal employees, including judicial clerks in the federal court system, are entitled to protection against sexual harassment and gender discrimination under Title VII of the Civil Rights Act. However, none of the women who spoke to the Washington Post filed formal complaints against Judge Alex Kozinski. According to Bond, Kozinski stressed the idea of complete judicial confidentiality. Whatever was discussed in chambers could not be revealed to the public, even when the comments had nothing to do with the cases before the court. She saw him to be in complete control.

The structure of a judicial clerkship makes employees particularly susceptible to retaliation when they complain about sexual harassment at work. Clerkships are temporary by nature. At the end of their terms, clerks rely on good recommendations from their judges to find new positions in the legal field. When a clerk has filed a sexual harassment claim, the chance for a positive referral grows dim. While this form of retaliation is illegal, it also has practical implications that could make it difficult for clerks to find new jobs. Bond and other clerks feared what Kozinski might do if they filed a complaint, particularly because he was unlikely to be fired over it. In fact, Murphy told the Washington Post that she chose not to file because the complaint would first go to Kozinski himself before being referred elsewhere.

American Bar Association Article Calls for Change

In response to the allegations, and Kozinski’s sudden retirement, the American Bar Journal published an article, “The judiciary must deal with #MeToo–and with what I know” by Nicole Vanderdoes, chief counsel of the ABA Standing Committee on the American Judicial System. She called on bar associations and the judiciary to be prepared to respond to #MeToo-style complaints.

“And lawyers and judges need to be prepared for how to respond and maintain the integrity and independence of the judiciary. Because if it looks like the legal system is protecting its own, it will lose all credibility. How can you trust a judicial system that doesn’t hold officers of the court accountable?”

Vanderdoes acknowledged there are “very few men who have more power than a judge” and that can make allegations of sexual harassment against them particularly difficult to address. She emphasized the importance of confidentiality and integrity during the investigative process. When matters do go public, she called on bar associations to respond with clarity and objectivity to allegations against judges and influential attorneys and to dispel any impression of favoritism within the system.

When the #MeToo movement involves allegations against a member of the judiciary, the power dynamics and political ramifications can make it hard to even consider filing a formal complaint. But employees of federal offices have just as much right to civil rights protections as anyone else. At Eisenberg & Baum, LLP, our experienced workplace harassment attorneys understand the delicacy needed to handle cases involving public officials. We will meet with you confidentially to review your case, and your options, and help you decide when, where, and how to file your claim. Contact us today to schedule a free initial consultation and get your case started.