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.

Beyonce, as usual, is making headlines with her September issue of Vogue and a candid interview with her thoughts on all sorts of topics, including, the legacy she wants to pass on to her kids. She wants her daughters to see themselves in books, films, as CEOs, and knowing that they don’t have to fit a certain mold. When it comes to her son, she says:

I hope to teach my son not to fall victim to what the internet says he should be or how he should love. I want to create better representations for him so he is allowed to reach his full potential as a man, and to teach him that the real magic he possesses in the world is the power to affirm his own existence.”

This quote led me to think about how toxic masculinity (and femininity) influences our lives and our roles at work, home, school, and in our communities. I certainly can’t answer what it’s like to be a man, but I don’t think men and women should feel confined to play certain roles and fulfill stereotypes to be “quiet and nice” or “strong and stoic.”

How do men and women work together to turn things around?

There is a treasure trove of answers and thought-provoking questions in the Man Enough online series that is the start of a very important dialogue. In the series, a group of men openly discuss what it means to be a man, be vulnerable, and #metoo. The men in the series recognize that the concepts of masculinity in American media ingrain misogyny in boys and girls from an early age. So much so that almost all the men in the series have witnessed harassment or assault and failed to intervene even though they consider themselves good guys. In the #metoo episode, Tony Porter, the CEO of A Call to Men says that he thinks “It’s really rooted in how the law is defined. You could do some crazy s—- and be on the side of the law, right?” Yes, he’s right in the sense that employers and harassers got away with sexual harassment and retaliation against women for coming forward for a long time (and still do sometimes), mostly because there weren’t any real legal consequences until Title VII came along, but sexual harassment continues despite the legal remedies that exist at the state and federal level. Legal remedies by themselves are insufficient to effect change in the absence of a shift in culture. If women aren’t comfortable coming forward, there won’t be any cases against harassers and/or their employers.

Social consequences

#Metoo is the dawn of social consequences for bad behavior. Will #metoo lead to legal consequences? We will have to wait and see. If we give boys the space to ignore what the internet says boys and men should be and allow them to affirm their own existence, will misogyny begin to disappear? This won’t be my last post on this complicated topic, so stay tuned!

 

It occurs to me that a more positive, not-everything-is-bad post is in order. My past posts have addressed the employee-employer imbalance of power, advocated an end to mandatory arbitration, and criticized the Senate version of the proposed, revised Congressional Accountability Act. However, progress has nonetheless been made these past months (at least I think so) and so it makes sense we take stock.

Jodi Kantor, of the (failing) New York Times [yes, that is a joke: relax!] attempted to do just that, take stock, back in March. Her article highlights a variety of actions taken by companies, cities, states and the federal government in response to the #metoo movement and society’s possible awakening. While Ms. Kantor’s assessment was certainly not all positive – much (most) work remains, much of it at a societal level – she nonetheless pointed to some bright spots. One success was Microsoft’s announcement, late last year, to get rid of forced arbitration in its employment agreements. Another was the Screen Actor’s Guild (“SAG”) publishing an updated Code of Conduct. Even if you are not a waiter/actor in LA, this is an interesting read, especially for newbies. SAG’s Code defines some basic terms (e.g., quid pro quo, hostile work environment, retaliation) and educates actors and employers on what to expect when a complaint is filed, as well as provides resources to employees.

But I am singling out Facebook for further analysis and some praise (God knows, it needs it). In December 2017, Facebook took the somewhat unusual step and put its internal policy online for all to see. In the announcement post COO Sheryl Sandberg declared Facebook’s “philosophy” was to go beyond what was legally required – not too hard, unfortunately- and to enforce a zero-tolerance approach. Undergirding the policy are the following six principles: 1) mandatory sexual harassment and unconscious bias training; 2) treating all claims with “seriousness, urgency, and respect”; 3) investigating claims in a way that protects employees from stigma or retaliations; 4) applying the process consistently; 5) taking “swift and decisive action” when wrongdoing is identified; and 6) involving all employees in making the workplace safe by encouraging people to report unacceptable behaviors, even if it does not involve them.

The Facebook policy is a real treasure-trove for commentary and analysis and over the next few posts, I aim to highlight some of the encouraging parts, compare it against the company’s stated philosophy and principles, and give you my two-cents on what (if anything) might be problematic or objectionable.

If you have time, read over the Facebook policy and stay tuned.

If you have been experiencing persistent workplace sexual harassment for a long time, perhaps for months or even years, you may think it is too late to report the wrongdoing, but a recent federal case from the Third Circuit Court of Appeals, citing news regarding “a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims,” held that whether waiting too long to report the workplace sexual misconduct was reasonable depends on your circumstances.

In the case of Minarsky v. Susquehanna County, released by the Third Circuit on July 3, 2018, the Court held that Sheri Minarsky’s four-year delay in notifying her employer, Susquehanna County, of sexual advances made by her immediate supervisor, Thomas Yadlosky, was not unreasonable as a matter of law. The district court below had granted summary judgment to Susquehanna County under the Faragher-Ellerth defense. This defense is available to an employer who can show it “exercised reasonable care to avoid harassment and to eliminate it when it might occur,” and that the employee “failed to act with like reasonable care to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided.” The Third Circuit appellate court reversed the summary judgment, holding that a jury should decide whether Minarsky’s delay in reporting the harassment was unreasonable.

Why a Victim Might Wait a Long Time to Report a Supervisor’s Sexual Harassment

Sheri Minarsky worked as a part-time secretary three days a week at the Susquehanna County Department of Veteran Affairs, and worked for Thomas Yadlosky only on Fridays in an area far from other employees. Soon after she started working for him in 2009, Yadlosky would sexually harass Minarsky nearly every week by approaching her from behind and embracing or pulling her up against him, massaging her shoulders or touching her face, and attempting to kiss her on the lips before he left each Friday. Because they worked alone, others were seldom present to observe Yadlosky’s conduct, other than during the holiday season each year, when Yadlosky asked Minarsky and other female employees to kiss him under the mistletoe. Yadlosky would also question Minarsky about her whereabouts during her lunch hour, called her at home on her days off under the pretense of work, but proceeded to ask her personal questions, and sent her sexually explicit messages from his work email to her work email. Notably, Yadlosky would become hostile if she avoided answering his calls, and otherwise behaved unpredictably.

The harassment intensified as time passed. Minarsky stated in the lawsuit that she did not report the harassment sooner because she needed the job to pay for her young daughter’s cancer treatments. Minarsky claimed that Yadlosky knew her daughter was ill and that Minarsky depended on her job to pay medical bills. Also, Minarsky did not report the harassment sooner because she learned that prior complaints by others about Yadlosky’s behavior had not led to any substantive reprimand. Minarsky thought her complaint would do nothing to change her situation, and that she could lose her job by reporting the harassment.

The Third Circuit Court specifically acknowledged that

[T]here may be a certain fallacy that underlies the notion that reporting sexual misconduct will end it. Victims do not always view it in this way. Instead they anticipate negative consequences or fear that the harassers will face no reprimand; thus more often than not, victims choose not to report the harassment.”

Although in the past the law has viewed an employee’s outright failure to report persistent sexual harassment as being unreasonable and insufficient to support a legal claim, particularly where the opportunity to make such complaints exist, the Third Circuit clarified in Minarsky v. Susquehanna County that a mere failure to report one’s harassment is not per se unreasonable. The passage of time can be one factor while analyzing several other factors. Because workplace sexual harassment is highly circumstance-specific, it is a question for the jury, not the judge, to determine whether the employee’s subjective belief of potential retaliation from reporting harassment is well-founded.

Sheri Minarsky’s case is an example of how the law is being shaped by so many victims coming forward in the #metoo Movement, allowing victims more opportunities to seek redress for inexcusable conduct. As Judge Rendell put it, this appeal came in the midst of “a veritable firestorm of allegations of rampant sexual misconduct that has been closeted for years, not reported by the victims.” If you feel trapped in an uncomfortable employment situation, but think you are too late in remedying workplace sexual harassment, you should speak to an attorney who can guide you in making a change. We are here to listen and help.

The #MeToo moment is making it harder for businesses to allow bad actors to quietly move on to other opportunities, as demonstrated by the resignation of Mayer Brown capital market’s partner James R. Tanenbaum. Above the Law and The American Lawyer report that Tanenbaum resigned in March when it surfaced that he was fired from Morrison & Foerster’s New York office after an internal investigation substantiated allegations of sexual harassment.

Real Consequences After #MeToo

Tanenbaum was reportedly first accused of harassment over two years ago, and was reprimanded by the firm. When the allegations resurfaced last year, Morrison & Foerster brought in an outside firm to conduct an investigation into Tanenbaum’s behavior. Above the Law reports Tanenbaum was asked to leave the same day the outside report was finished, and left the firm in December 2017. In less than two months he had found work with Mayer Brown, reportedly as part of the firm’s luring of a large team from M&F.

It is not clear what led Tanenbaum to resign less than a month later. Mayer Brown issued a statement that it had accepted his resignation after “assertions that [he] may have engaged in inappropriate conduct at his former firm.” The firm did not respond to Above the Law’s request about whether they had any knowledge of the allegations surrounding Tanenbaum during the hiring process. M&F also declined comment.

While Tanenbaum’s story is nowhere near as public as those we have seen in the entertainment industry, it shows that even businesses as private as law firms are changing the way they handle allegations of workplace sexual harassment. Just two years ago he was slapped on the wrist, but this time around the firm investigated and acted. Above the Law spoke with a partner at M&F, who said the #MeToo movement inspired her to come forward, and that she was proud of the way the firm conducted a fair investigation into the claims. It is concerning that Tanenbaum was able to shuffle to another firm without—at least initially—any serious question, however in today’s environment he ultimately was not allowed to go away quietly.

Of the many advantages employers have over victims of sexual harassment, perhaps none matches the power to compel victims to arbitrate, for them to forgo the opportunity of a lawsuit in state or federal court.

Sidebar: if you don’t know, arbitration is a kind of private court, where one (or more) arbitrators act as quasi judges. Often, employment contracts will have language in them requiring the employees to arbitrate work-related disputes, including allegations of sexual harassment. Depending upon which side you ask, you will get very different reactions to whether arbitration is a good thing. According to the American Arbitration Association, arbitration is “faster and more cost effective than litigation.” Unsurprisingly, employers generally agree with this assessment; after a few beers they might even admit arbitration, on balance, strongly favors employers. But, even if we accept the speed-cost premise (for argument’s sake), sexual harassment victims seeking redress may not benefit from speed and efficiency.

The attorneys general of every single U.S. State seem to think so anyway. In a February 12, 2018 letter to Congress – spearheaded by our very own Attorney General Pam Bondi – the attorneys general unanimously concluded that

[w]hile there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims.”

Why? Because arbitrators “are not positioned to ensure that such victims are accorded both procedural and substantive due process.” Now, that is quite a statement coming jointly from representatives of deep-red (aka employer-friendly), as well as blue states. The letter also highlights the deleterious effect that secrecy – many arbitrations are secret – can have on society at-large because the scope of the problem is swept under the proverbial rug.

So, will we see some change? I frankly have no idea . . . the Arbitration Fairness Act of 2018 was introduced in Congress last month. The bill purports to prohibit arbitration in employment, consumer, antitrust and civil rights disputes. But, as even casual observers of the congressional sausage factory will tell you: it is a long way from bill to law. The #metoo movement was clearly the impetus for the bill. We will just have to see if the will remains when the topic of sexual harassment has faded from the headlines.

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

It has been over a month since Sports Illustrated broke the story of the history of sexual harassment within the Dallas Mavericks’ organization. Since then, the team has hired outside counsel to investigate its culture, and brought in a new CEO who has committed to changing that culture going forward. Now, a new report from Deadspin, based on interviews with former and current employees, shows the important role that workplace culture plays in enabling sexual harassment.

A Real Life Animal House

The stories in the SI report are sadly predictable: the now-former President and CEO of the team once openly suggested that a female subordinate was going to be gang-banged over the weekend, and openly propositioned women for sex; at least one employee was warned, “don’t get trapped in an elevator with him.” A male employee in ticket sales was known for watching pornography at his desk. And in one instance, an employee allegedly dropped a used condom outside an office bathroom, which the head of human resources picked up with a paper towel. SI quotes one employee describing the office as a “real life Animal House.”

Deadspin’s interviews shed light on how this culture persisted for so long: employees were under constant pressure to perform, and there was a feeling that management was either unwilling or unable to do anything about the culture. One former employee described the job as

like being married to a Hollywood star, knowing he was abusive emotionally and physically to you, but you stayed with him because he’s a star.”

In the case of the porn-watching employee, Deadspin reports that employees felt they had no choice but to ignore it because the employee had a long tenure with the team, was known for bringing in a log of money, and, perhaps most importantly, was seen as close with the powerful people above him, who were known for caring only about how many tickets their employees sold. Reports of sexualized comments were dismissed as “talking shop.” And in perhaps the most widely-discussed revelation, the team allowed an accused-domestic abuser to remain with the team, even after he was arrested for alleged abuse of one woman, and was widely suspected of abusing a coworker whom he was dating.

When the Office Culture Protects the Harassers

Above all, the team’s handling of the abuse and harassment allegations sent a message to female employees that they were “just there to protect the men.” Sexual harassment persisted while male employees were given multiple chances. And the physical environment didn’t help. Many employees worked in a completely-open office space, meaning that everyone knew when someone was screamed at, belittled, or harassed. One employee stated that she was initially shocked by the abuse, but felt like she had to look the other way to keep her job.

As the #metoo and #timesup culture movement continues to evolve, it is stories like this that will help us understand how we got here, and how we can improve. In the case of the Mavs, the office culture played a critical role in enabling sexual harassment. Management looked the other way, or even participated in the harassment, intimidating victims and would-be whistleblowers alike into silence. It is in such a situation that an attorney can be a vital resource to a victim or whistleblower. We owe our clients a duty of confidentiality, and can also provide an objective analysis of the situation and possible remedies. If you have been a victim of or witness to sexual harassment in the workplace, don’t hesitate to reach out, especially when the office’s culture would encourage you to remain silent.