On Sunday night, the New Yorker published a piece by Ronan Farrow and Jane Mayer regarding sexual assault allegations against U.S. Supreme Court nominee, Brett Kavanaugh, from his freshman year at Yale. The article was published on the heels of the first victim, Dr. Christine Blasey Ford, agreeing to testify before the Senate Judiciary Committee regarding her allegations that Judge Kavanaugh sexually assaulted her when they were high school students. A third unidentified woman is offering to meet with the FBI to disclose how she was victimized and has implicated Judge Kavanaugh and others in the targeting of women for gang rape through the use of drugs and alcohol. Even with the number of victims adding up, the U.S. Senate is showing us how little the culture has shifted over the last 3 decades when it comes to victims stepping forward with accusations of sexual misconduct against powerful men.

1991 vs. 2018: Have We Evolved?

The response to these allegations has ranged from outright denial and support for Judge Kavanaugh to demands for the FBI to re-open its background investigation into Kavanaugh, protests, and the new hashtag #WhyIdidntReportIt. It is a pivotal moment because the Senate Judiciary Committee has the opportunity to handle the allegations differently from the 1991 Anita Hill sexual harassment allegations against Clarence Thomas. In 1991, Professor Hill was asked if she was a “scorned woman” and why she didn’t come forward with her allegations sooner. The Senators also told her that discussing “large breasts” in the workplace was common behavior and they didn’t understand why she thought such talk was embarrassing. As we all know, Justice Clarence Thomas was confirmed and has been serving on the U.S. Supreme Court since 1991.

In light of the #MeToo movement taking off over the past year, women are hoping not to relive the humiliation, hostility, and condescension when Dr. Blasey Ford, and possibly others, testify before the Senate. As Tarana Burke said,

It’s been 27 years since Anita Hill. We need to see that there is a different understanding about sexual violence. We need to see that they know how to approach and handle issues of sexual violence in a very different way.”

Unfortunately, we are hearing echoes of the same attempts to discredit Anita Hill in 1991. The power structure from 1991 remains roughly intact – there are no female Republican Senators on the Senate Judiciary Committee and Senators Chuck Grassley (R – IA), Orrin Hatch (R – UT), and Patrick Leahy (D – VT) were all members of the Senate Judiciary Committee during the Clarence Thomas confirmation hearings. We are already hearing from many Senators, men, and women, dismissing the allegations against Kavanaugh as fabricated, as something that all male teenagers do, and even making jokes about sexual assault.

Is There a Light at the End of This Tunnel?

Four women made history by becoming U.S. senators in one year shortly after the Thomas confirmation hearings. We now have 23 women in the Senate and 2018 will be a record year for the number of women running for office. Is it all on the women running for office to change the culture in Washington and across the country regarding sexual misconduct? The burden to change cannot be placed solely on female legislators. Sure, it will help to have more women in government and in positions of power. But as we can see, the Senate Judiciary Committee is still mostly men and many male senators in power don’t want an independent investigation of the allegations against Judge Kavanaugh. The change won’t happen without the men who witness other men behaving badly. The change won’t happen until men and women believe victims when they get past the fear of retaliation to speak up about sexual misconduct.

If you have been the victim of sexual misconduct, you should discuss your story with an attorney who can guide you. Our attorneys can assist you at any stage, including pre-litigation. Please contact us to set up a confidential consultation.

Nicole Reyes moved to the United States from the Philippines with her five-year-old daughter and husband just over a year ago, speaking minimal English. Through a family friend who knew the owner, Maria Santos, also from the Philippines, Mrs. Reyes got a job in Hotel Pagalit cleaning rooms. When she began her employment with the hotel, Mrs. Reyes received a fifty page handbook in English with the hotel’s policies and procedures, which included a section on how to address any sexual harassment she might encounter. The handbook defined sexual harassment, contained examples of verbal, physical and non-verbal harassment, stated that any form of sexual harassment was strictly prohibited and should not be tolerated by any employee, provided information about the hotel’s human resources department, how to record and report an incident of sexual harassment, the individuals to whom sexual harassment should be reported, the investigative procedures the hotel would carry out in response to reports of sexual misconduct, and instructions on how to minimize the risk of being harassed in the first place. The hotel required that cleaners work in teams of two or more, and never enter rooms alone, in an effort to reduce the risk of sexual harassment. The handbook also stated that the hotel would take prompt, vigorous action in the form of discipline, reporting to the police, and/or dismissal against anyone who, after a full investigation, was determined to have sexually harassed or engaged in sexual misconduct against another.

The owner’s husband, Angelo Santos, did not have a formal management position or ownership interest in the hotel. Nonetheless, he was a constant presence at the hotel, and would informally participate in the hiring and firing of employees such as Mrs. Reyes. Maria and Angelo Santos would jointly discuss employees’ rates of pay, the number of hours employees worked, and job assignments, and who should be hired and let go, although the ultimate decision-making authority rested with Mrs. Santos. According to the hotel handbook, any reports of sexual harassment alleging improper physical contact would have to be reported to Mrs. Santos by senior human resources personnel.

Coerced Sexual Activity By the Hotel Owner’s Husband

Mr. Santos falsely told Ms. Reyes that he was the owner of the hotel and was her boss, and that if she did not do as she was told, he could fire her. He asked repeatedly to meet with her privately in one of the vacant rooms. Once in the room, Mr. Santos would then tell Ms. Reyes that if she did not have sex with him, she would lose her job, lose her husband, and be sent back to the Philippines. Mrs. Reyes was terrified of Mr. Santos, and as a result, had frequent coerced sex with him throughout her employment. After the sexual activity, Mr. Santos would threaten that if Mrs. Reyes reported him she would be fired, he would tell her husband that she was unfaithful, and that he would prevent her from finding another job in the United States.

Ms. Reyes Quits Without Following The Employer’s Procedures

After about six months of giving into Mr. Santos’ sexual demands, Mrs. Reyes had finally had enough. She told her husband about all of the abuse that she had endured from Mr. Santos, and quit working for the Hotel Pagalit. Mrs. Reyes did not report any of the abuse to the hotel or its human resources department, nor did she follow any of the procedures outlined in the hotel’s handbook, partly because she could not read much English, and partly because she believed that Mr. Santos was the owner of the hotel, and that any recourse through the hotel’s channels would be futile. Mr. and Mrs. Reyes then hired an attorney to sue the hotel on his wife’s behalf.

The Employer’s Faragher Defense

In 1998, the U.S. Supreme Court in Faragher v. City of Boca Raton held that an employer may raise a defense to an action seeking to hold it vicariously liable to a victimized employee for a hostile work environment created by a supervisor with immediate or successively higher authority over the employee, where no tangible employment action is taken against the victimized employee, by showing that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm or otherwise. If the harasser himself holds such a high position in the company that he could be considered the employer’s alter ego, the defense is inapplicable. In a recent Florida case, a hotel attempted to assert the Faragher defense where it was the owner and general manager of the hotel who was sexually abusing and victimizing the plaintiff hotel worker, and the hotel fired the worker when she began to refuse the owner/general manager’s advances. Charest v. Sunny-Aakash, LLC, 2017 WL 416901 (M.D. Fla. 2017). The Court rejected the hotel’s Faragher defense, both because the hotel took retaliatory action against the worker and because the harasser was the hotel’s alter ego.

In Mrs. Reyes’ (fictional) case, the applicability of the defense is less clear. Mr. Santos had no ownership or formal management position with the hotel, but falsely represented to Mrs. Reyes that he did. And Mr. Santos had substantial influence over the actual owner of the hotel, who had the ultimate authority to hire and fire employees, determine their rates of pay, and assignments. Moreover, while the hotel’s procedures might have been reasonable, it is less clear whether Mrs. Reyes’ failure to follow them was unreasonable, particularly where she spoke and read little English, and arguably reasonably believed Mr. Santos had the power to fire her and that her complaints would therefore fall on deaf ears. Mrs. Reyes could also argue that Mr. Santos, who was married to the actual owner and manager of the hotel, was a de facto alter ego of the hotel, even if he did not hold a formal ownership or management position.  In any case, availing oneself of the employer’s procedures and remedies for addressing sexual harassment can help to avoid the employer from successfully asserting a Faragher defense.

Hotel workers are particularly vulnerable to sexual harassment. For more on this subject, see the recent NPR article, Advocates Push for Stronger Measures to Protect Workers from Sexual Harassment.

We have had several points over the last forty years in which Americans have learned about sexual harassment – the 1991 Anita Hill senate testimony, the 2010 Casey Affleck allegations, and now the 2017 Harvey Weinstein revelations. Generations of women and girls learned that coming forward about sexual harassment often meant that you would be blamed and shamed for the harassment and your career would suffer while your harasser would go unpunished and, sometimes, get promoted. In 2017, however, Harvey Weinstein was accused of sexually harassing, assaulting, and/or raping almost 100 women, including dozens of famous Hollywood actresses. Hundreds of women have come forward to hold men accountable for sexual misconduct since then. While most of us don’t immediately associate Hollywood with a work environment, it is for writers, directors, actors, production assistants, and the hundreds of people it takes to make a film or TV show. I caught up with Barbara Marshall, a film and TV screenwriter in Los Angeles, about how the unique Hollywood work environment led many to accept sexual harassment as part of the work and how the entertainment industry is moving forward. Ms. Marshall’s writing credits include the recent horror film, “Wish Upon,” the film “Viral,” and NBC’s “Terra Nova.” Ms. Marshall is also writing the script for the upcoming Lifetime R. Kelly film as part of Lifetime’s Stop Violence Against Women campaign.

Hollywood: Sexual Harassment in a Social Work Environment

Screenwriter Barbara Marshall

I started out by asking Ms. Marshall if the prominent Hollywood men being called out for sexual harassment was a shock or a long time coming. Ms. Marshall believes it “was a long time coming because there does seem to be a bit of a culture that enables behavior that even if it’s not harassing, it can be incredibly inappropriate. And that can escalate. And it’s also such a boy’s club that I think men feel like they have a lot of money and just feel empowered to do whatever they want because no one really calls them on it. To call someone on it means that you might be risking your career.” She also points out that the fact that the entertainment industry involves a work environment that is more social, has more money involved, and attracts eccentric and creative personalities who tend to burn brighter than normal leads many to “write it off as part of the business and write it off as part of an eccentricity when it’s just bad behavior.”

We Need to Change the Stories We See on Screen and Increase Female Leadership

Ms. Marshall says that post-Weinstein, many women are realizing “we don’t have to put up with this garbage” because there are “enough of us in positions of power and with talent that we can bond together and tell women’s stories that are lucrative, that are popular, and just not have to worry about all this excess baggage.” In fact, companies like Reese Witherspoon’s production company, Hello Sunshine, exemplifies what Ms. Marshall identifies as a “shift in Hollywood away from middle aged white male with the same homogenous storytelling to try to embrace diversity, embrace women.” Ms. Marshall says

It feels like the business model is changing and therefore it’s changing the culture.”

While including more women’s stories on screen is part of the solution, Ms. Marshall believes that “the more women you see in positions of power, the less likely you’re going to see this behavior is going to be tolerated.” She is already beginning to see changes. At a recent project meeting, she was surprised to see that “everyone in the room – the producer, writer, writer of the novel – it was all women.”

While Hollywood is unique in many ways, the same factors that led to the widespread sexual harassment in entertainment – intimidation by wealthy and influential men being written off as part of business and lots of socializing – can exist in other industries too. The Weinstein effect has taught us that sexual harassment happens regardless of the nature of your work and the location where your work is done. Cultural change can take a long time and it may be a while before other industries have strong female leadership at the same pace that it seems to be occurring in Hollywood. If it weren’t for the women who were brave enough to come forward about Harvey Weinstein, we may not be having this cultural shift. If you are experiencing sexual harassment in the workplace in any industry, an attorney can help you understand your rights.

Seo-Yun was a 15-year-old public high school student who came to the United States from South Korea at the age of ten. By the time she reached high school, Seo-Yun was speaking English fluently and excelling academically. Seo-Yun even published her own first book of poetry, which contained poems in both English and Korean.

Nonetheless, high school bullies went after Seo-Yun because she was shy, deferential to her teachers and peers alike, and had a slight accent. The most vicious group was led by an 18 year-old sophomore named Todd, who unfortunately for Seo-Yun, sat right next to her in science class. Todd had been held back twice, and had been the victim of bullying himself. But nothing made Todd feel better than taking out fears, his anger, and his profound sense of inferiority over someone more vulnerable than he.

At first, Todd and his group of bullies mostly leveled cultural and racial slurs at Seo-Yun.   But when they saw that she did not fight back, and the teachers chose to ignore the situation rather than intervene, things escalated.

Bullying Turns to Sexual Harassment

Todd began passing graphic and sexually explicit notes to Seo-Yun in science class whenever the teacher turned his back. Mortified and humiliated, Seo-Yun would just crumple up the notes and put them in her bookbag, hoping no one would seem them. But things got even worse. Todd began to reach under Seo-Yun’s desk and touch her thighs, telling her to watch out after school because he would be waiting for her, and couldn’t wait to have sex with her, whether she wanted to or not. One day, Seo-Yun just couldn’t take it anymore and let out a blood-curdling scream in the middle of science class. She was removed from class and served detention for disrupting the lesson.

Later that week, Seo-Yun had to make up the science quiz she missed when she was removed from class. Just as she began the quiz, Todd and his friends entered the room and surrounded her. A substitute teacher was administering the quiz and appeared petrified of Todd and just sat there watching Todd taunt Seo-Yun, whisper sexually explicit threats in her ear, and make sexually explicit jokes to the cackling laughter of his lackeys. After several excruciating minutes, the substitute teacher finally asked Todd and his friends to leave the room. Seo-Yun failed the quiz.

The Public High School Fails to Remedy the Harassment

When Seo-Yun’s grades began their steep decline, her parents continually tried to find out what was going on. While Seo-Yun initially refused to tell them, she eventually broke down and explained Todd’s harassment. Seo-Yun’s parents called the school, set up a parent-teacher conference with the science teacher. The science teacher said he had noticed that Todd had been bothering Seo-Yun, and that he had already spoken to Todd about it. The teacher assured Seo-Yun’s parents that nothing like that would happen again and that the principal had been informed about the situation. But Seo-Yun’s troubles continued after the parent-teacher conference. In fact, the teacher did not even move Todd away from Seo-Yun.  And Todd did not change his ways. He just became a little more discreet by approaching Seo-Yun when no one was around, threatening her, and touching her inappropriately. Seo-Yun’s parents learned that the harassment persisted, and repeatedly called the principal, only to leave messages that were unreturned. Seo-Yun grew increasingly withdrawn, could not concentrate on her schoolwork, and began failing all of her classes. As it so happened, Seo-Yun was not Todd’s only victim. Later that year he pled guilty to sexually assaulting another classmate, and was expelled from the school. But by that time, Seo-Yun had suffered lasting damage.

The Standard for Successfully Suing an Educational Institution For Knowingly Failing to Remedy Student-on-Student Harassment

Title IX of the Education Amendments of 1972 provides that subject to certain limited exceptions, no person in the United states shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity received Federal financial assistance. The United States Supreme Court has interpreted Title IX as providing a private right of action for damages for the failure to remedy student-on-student harassment – but only where the federal funding recipient acts with deliberate indifference, and the harassment is so severe that it effectively bars the victim’s access to an educational opportunity or benefit. In Davis v. Monroe County Board of Education, the U.S. Supreme Court held that there is only liability for damages where the funding recipient has control over not only the harasser, but the context in which the known harassment occurs. Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Recently, the University of South Florida was sued for allegedly failing to remedy alleged student-on-student sexual assault. The U.S. District Court found that the student who brought the suit stated a claim under Title IX, without deciding the merits of the claim. If you or someone you know has been subjected to a hostile educational environment, or has a child who has been subjected to a hostile educational environment, we may be able to help.

An Interview With Author and Filmmaker Raquel Cepeda

Before we can take steps in the U.S. to eliminate sexual harassment, it is important to understand why it’s so common in the first place. To me, the “boys will be boys” attitude begins to set in during childhood and sometimes extends to the courtroom when female attorneys are often second chair to a man despite doing the bulk of the prep work or disrespected by their male peers. The same damaging attitudes can been seen among women too, leading some harassers to exploit a perceived or real lack of gender solidarity. Could the rising awareness of sexual harassment and assault via the #metoo and #timesup movements encourage women and girls to question these types of attitudes toward women and what they’ve learned regarding women’s roles and places in history? I turned to Raquel Cepeda, to talk about these issues and get the viewpoint of someone with experience in cultural detective work. Ms. Cepeda is the author of Bird of Paradise: How I Became Latina and a documentary filmmaker, whose film Some Girls (now available at somegirlsdoc.com), follows a group of troubled Latina teens from a Bronx-based suicide prevention program who are transformed by an exploration of their roots.

The connection between women’s self-esteem, toxic masculinity, and sexual harassment

Author and Filmmaker Raquel Cepeda

In Ms. Cepeda’s latest documentary, Some Girls, the teen girls re-learn their history in a way that Ms. Cepeda says gets glossed over in the traditional American education system. I asked Ms. Cepeda about whether she thinks there might be some motivation to find a way to intersect a re-learning of women’s history with #metoo and #timesup. Ms. Cepeda believes that in the future, the #metoo and #timesup movements might intersect with how girls are educated, but for now sees them as “two separate things but equally important parts of the same issue.” The teens in Some Girls learned to see themselves and their bodies “as walking, breathing, living embodiments of history.” She hopes that learning your ancestors’ history, especially the roles of powerful women, will inspire women and girls to treat themselves better, see beauty in themselves, and demand better treatment. Ms. Cepeda says “[s]elf-esteem is connected not just with patriarchy, but also how we as women treat ourselves and each other. And that is connected to not knowing your history.”

Ms. Cepeda agrees that the “boys will be boys” attitude absolutely contributes to the pervasiveness of sexual assault and harassment of women and girls, partly because “[o]ur world revolves around toxic masculinity.” One of the girls in her film was sexually assaulted and abused at the hands of another student shortly after she attempted suicide. The school’s female principal shrugged off the allegations as “boys will be boys.” Ms. Cepeda says the principal’s response highlights the “misogyny within our own gender.”

So you see this woman who should have been protecting the young lady who was sexually assaulted tell the mother ‘you’re just spoiling her,’ ‘she needs to toughen up’ and ‘boys will be boys.’”

Ms. Cepeda further explains that “sexual assault is something that kids don’t even see as predatory. They just see it as part of their culture because they learn it at home. And when confronted with these issues in their own lives and those of their elders, it’s too often met with indifference.” Ms. Cepeda believes that part of the solution is for men and boys “to listen to the girls around you and listen to the young women around you. If something makes [the girls] feel uncomfortable, you have to respect that and listen. Become an active part of the solution” Ms. Cepeda believes that it’s time to get organizations like A Call to Men more involved to “work to re-educate young men to give men the tools that they need to be an active participant and to protect and honor the women around them.”

Going forward, Ms. Cepeda believes men need to be included in the #metoo and #timesup conversations. “They need to talk about what it is about society and the male gender that makes them stay quiet and think that it’s good enough to not step up. You can’t be indifferent to these things just because you happen to be a nice guy.”

In Ms. Cepeda’s experience, male allies in the workplace can make all the difference. As the Editor-in-Chief at Russell Simmons’ Oneworld Magazine, working in the hip-hop community meant dealing with misogyny. While Ms. Cepeda is tough, she felt lucky to have an ally in her publisher, John Pasmore. “Just listening to the frustrations that my staff, both male and female, were dealing with and being an ally helped me feel like I could take chances and do what I had to do. He went through a lot of stuff to keep the tone that way. I was lucky.”

How can cultural attitudes impact a sexual harassment case?

Ms. Cepeda’s analysis pins down the positions and viewpoints that many harassers, attorneys, and jurors may hold subconsciously and impact how a sexual harassment case is litigated. Many victims are hesitant to speak up about sexual harassment because they fear being blamed by both men and women. The #metoo and #timesup movements, however, have revealed that sexual harassment is more pervasive than many of us believed and the tide is shifting so that victims are more readily believed. If you have experienced sexual harassment at work, your attorney can be your strongest ally. Your conversations with your attorney are confidential. As always, it is important to consult an attorney about your legal rights if you have experienced sexual harassment at work.

Some Girls follows a group of troubled Latina teens from a Bronx-based suicide prevention program who are transformed by an exploration of their roots, is now available to buy or rent at somegirlsdoc.com