By now, we've all heard about decades of sexual harassment and assault allegations against Hollywood mogul Harvey Weinstein as reported in the New Yorker and the New York Times. While potentially well known (at least through rumor and innuendo) in the industry, this is the first time the allegations are truly seeing the light of day. As sexual harassment attorneys, the stories sound all too familiar. Here are some themes that run through the Weinstein story, that are common to many sexual harassment cases.
- Legitimate Fear of Retaliation
Several accusers reported not only fear of retaliation as a reason for not complaining or making harassment and assault public, but also actual retaliation in the form of loss of employment opportunities and being “frozen out” after refusing or reporting inappropriate conduct.
Most of our sexual harassment cases include a retaliation component as well as a discrimination or hostile work environment component. Retaliation happens when an employer takes an adverse employment action against an employee because that employee has engaged in protected conduct – typically making a complaint on behalf of oneself or another employee, or participating in an investigation of harassment or discrimination. Title VII and the New York State Human Rights Law both protect employees from retaliation for making protected complaints of discrimination or harassment. Examples of retaliation we have seen in our practice in the sexual harassment context include transferring the complainer to another department with less opportunity for career advancement; placing the complainer on leave; and termination of employment.
- Quid Pro Quo
Quid pro quo sexual harassment happens when a superior requests or expects sexual favors in return for continued employment or promotion. Accusers of Harvey Weinstein have reported feeling that acquiescence to his sexual overtures was required in order to remain in his employment or for career advancement.
- Meetings in Inappropriate Locations
Women also reported that Weinstein often conducted purported business meetings in unprofessional surroundings such as his hotel room. While it is important that women be able to have one-on-one meetings with their male bosses or coworkers, as well as be the only woman in the room, particularly in male dominated professions, business meetings should be conducted in professional locations – if not an office, then a restaurant or some other public place. If a woman is making a complaint of harassment, particularly of a sexual nature, employers should be particularly sensitive to the employee feeling comfortable and not physically intimidated. Certainly, we can recognize the difficulty in being the only woman in the room and reporting sexual harassment or misconduct.
One of our sexual harassment cases involved a woman being brought into sleeping quarters and outnumbered by three men to discuss issues of harassment and intimidation. From an employer perspective, it should be obvious – but sadly is not – that this type of meeting should take place in a business location preferably in the presence of a Human Resources professional.
When harassment by someone like Harvey Weinstein is so pervasive, it begs the question: how did it go on this long? The answer: enablers and those who turn a blind eye. Often, in sexual harassment cases, the employee reports harassment taking place in front of other employees and often supervisors who do nothing about the harassment. Often, women report being told to keep it quiet and not rock the boat. Often, even where a woman has made a formal complaint, the investigation is insufficient or does nothing to remedy the situation. This is also where we see retaliation come into play: instead of dealing with the harasser, it's easier to get rid of the complainer, and the harasser is left to continue to act inappropriately until the next woman comes along and complains.
After the original New York Times story, one of Weinstein's lawyers issued a statement referring to him as an “old dog”, suggesting that, since he came up in a more sexist environment, this somehow excused his behavior. Similar to President Trump's “locker room” talk, brushing harassment off as something harmless from a dirty old man is a common tactic. In one of our sexual harassment cases, the employer's response to a complaint was “boys will be boys.”
- Confidential Pre-Litigation Settlements
It has been reported that Weinstein has settled up to eight harassment cases over the years. Confidential settlements, while common, can perpetuate the problem because they can allow the employer to brush the situation under the rug and move on. This can be sticky from a plaintiff's lawyer's perspective, however, because financial settlements are often the best, and possibly the only, way to make an employee who has lost his or her job because of harassment, discrimination or retaliation, whole. Of course, assault can be criminally prosecuted, but he said/she said can go a longer way in the civil context than the criminal one and criminal prosecution will not necessarily remedy the monetary loss stemming from being fired or needing to resign due to a hostile work environment.
While we do, more often than not, pursue litigation in a public forum, from our perspective, by coming forward in the first place, the employee has done his or her part and we shouldn't necessarily put the burden on he or she to make the situation public in order to make a statement or for the greater good. First of all, few employees have the financial luxury to pursue a case into litigation, which can take years to resolve and also includes the risk of losing (since the law is generally more favorable to employers). Second, employees are often embarrassed and humiliated when sexual harassment and assault is at play and they don't want these private situations made public. In the same vein, pursuing a lawsuit is a huge stress and opens the employee up to all of the common attacks we see in these cases: she asked for it, she dresses a certain way, she makes sexual jokes too, etc., etc. Finally, it is also a sad reality that, while we like to chastise people for not complaining after a situation blows up, we also like to accuse people of being complainers, and snowflakes, and trouble makers when they do complain. So often, an employee feels that they are better off reaching an early resolution of their matter rather than making it public and risking being labeled a trouble maker and blackballed in their industry.
So, from our perspective, we would, instead, put the burden on the employer that, when employees do come forward and these settlements are reached, they then take steps to discipline the harasser, if not terminate his or her employment; reevaluate whether existing policies and procedures are effective; and continue ensuring that they are fostering a work environment free of harassment and where employees feel comfortable bringing inappropriate behavior to light. Often, instead of being proactive, we only see ramifications for the harasser - Weinstein and Roger Ailes of Fox News are good examples - after the situation becomes a public relations problem for the employer.
If you feel you have been the victim of sexual harassment or discrimination – or retaliated against for making complaints – give us a call. We are happy to see if we can help.