“Me Too,” Harvey Weinstein, President Trump, and Changing the Narrative.

IMG_0211Having spent 25 years  as an attorney representing women (and some men) who were sexually harassed, I was inspired by the hundreds of thousands of brave women who have been sexually harassed and came forward to publicly say “Me Too.” But as I saw my social media feed fill up with women, relatives and friends of mine, proclaiming “Me Too,” I wanted to be sick. I know I was not alone.

But “alone” is  often what these brave women who come forward to name their harasser find themselves.  Having sued businesses, colleges, the government and the church on behalf of clients who were sexually harassed, I was continually appalled at how these courageous women were often not believed or re victimized by their employers, who tried to suggest they were “asking for it,” that it was consensual, or that they were bad employees with performance issues. It’s often difficult to find co-workers to support their version of the facts and substantiate the harassment  because co-workers fear they may lose their jobs if they speak out.

There are laws on the books that ostensibly protect people who report sexual harassment or participate in the investigative process from retaliation. But employers have the power and  often nuanced ways to negatively change employees working conditions and avoid liability for their illegal retaliation. Victims of sexual harassment, women, are often ostracized and eventually forced out. This is the reality of the world of a woman courageous enough to complain. We need to change this.

Much of the discussion that has flowed from the “Me Too” proclamations has focused on our misogynistic society, and what men can do, and not do, to improve and lessen this ongoing destructive  sexual harassment and abuse. That’s an essential conversation and I agree with most of the suggestions and encourage men to call out inappropriate behavior and harassment.

But I also want to call out a broken legal system and employers. Employers, start believing your women employees who are sexually harassed by your male employees. Don’t smear these victims because you think their complaining is somehow a declaration of war against the company. Fire the harassers. If and when you end up in litigation, please don’t try and “destroy” the victim of harassment who was just trying to do the job you hired them to do when they were illegally sexually harassed by your employees.

Defense attorneys representing employers, please think about how you would feel if the woman in front of you, the plaintiff,  was your wife, daughter or friend. She is somebody’s wife, daughter and friend. Does zealously representing your client mean you must shame and humiliate the plaintiff, the victim, during her deposition and at trial? You may say that a woman brings this type of scrutiny and hard ball tactics on herself when she elects to go to court. No, she does not. We attorneys and the judges condone it and allow it in the name of “justice.” The broken legal system and process we use is what we currently have available for victims to use to try and find “justice.” Attorneys have choices as to how they use their humanity in defense of their employer clients. Sometimes, wise counsel means having difficult conversations with clients and challenging them to be better than they are wanting to be.

If you want to bring a claim under federal law (in federal court) for sexual harassment, it’s made as a claim of sex discrimination under Title VII of the Civil Rights Act of 1964, as amended. Did you know that before you can even sue in federal court for sexual harassment you must first file an administrative claim with the Equal Employment Opportunity Commission (EEOC)?  You have no choice. The thinking behind that longstanding requirement is to give the employer an opportunity to correct things before having to go to court. While conceptually  this is a healthy idea,  but in practice it typically sucks for victims.

Why? There is a backlog with the EEOC and it often takes them a year or more for their short staffed offices to get to claims and “investigate” and issue their findings. Justice delayed is justice denied.

Employers know this. Some drag the process out. At the end of the administrative process the EEOC issues a Right to Sue letter if no resolution is reached. I had a women come to me 2 1/2 years after she filed her EEOC complaint when she finally received  her Right to Sue letter and ask me if I could represent her in court and sue her former employer. But many of the witnesses were no longer around; a couple had died. Where’s the justice for victims of sexual harassment in such a broken system?

One practical solution would be to eliminate the mandatory requirement of victims of sexual harassment filing administratively with the EEOC if they want to bring a claim in federal court under federal law. Currently, you can bring a claim for sexual harassment to state court in Minnesota and North Dakota and many other states without going through the administrative process. We should urge our federal lawmakers to support such changes.

But remember, the Commander in Chief is a known sexual harasser. We should remind our lawmakers of that fact when we contact them to try and make it easier for victims to bring claims in federal court. President Trump has had numerous women accuse him of sexual harassment and, while a presidential candidate, a tape came out where the President had previously bragged of being able to, basically,  do what he wanted to women, including grabbing them by their genitals. America responded as you would expect to such revolting behavior, with over 60 million people voting  for him and electing  him president.  Feel like vomiting again? Me too.

Over the years, I had professional women come to my office with sexual harassment claims and decline to move forward and file lawsuits against their employers. Why? Because they knew that filing suit against their employer, even with a claim that the law gives them the right to bring, would be professional suicide. They believed they would forever be seen by prospective employers as a troublemaker. Our system is broken to the point that a women who is sexually harassed, the victim, is victimized again, career wise,  for standing up for her rights.

One thing I noticed over the years of representing women who had been sexually harassed was that there were not as many bold acts of harassment as people in the workplace became more familiar with the laws and protections afforded to victims of sexual harassment. However, the harassment became more nuanced and subtle. That was disturbing and creepy and made it even harder for victims to prove their harassment claims.

The Harvey Weinstein debacle recently lifted up the serial sexual harassment in the movie industry and the reluctance of people in the industry to share these well known secrets. That’s true in every industry.  We heard how Bill O’Reilly and 21st Century Fox paid millions of dollars to women O’Reilly sexually harassed  over the years to settle claims these women had. The most recent revelation was that O’Reilly paid $32 million to settle a sexual harassment lawsuit. Paying that amount in settlement, without going to trial and being ordered to pay, is unheard of and shows the power of old white men with money.

The outrageousness continued. 21st Century Fox, O’Reilly’s employer, knew of these multiple past settlements of sexual harassment claims against O’Reilly,  and the facts behind the $32 million dollar settlement that allegedly included non consensual sex (and all the awful conclusions that leads to). This amount is unprecedented. Nobody pays that amount if they did nothing wrong.

And just when you think it can’t get any worse, it does. 21st Century Fox  rewarded O’Reilly’s serial sexual harassment of their female employees by giving him a new four year contract extension worth $25 million a year, a raise from the $18 million a year he had been making. Because, you guessed it, his ratings were so high. Oh, you will be pleased to know Fox News supposedly included provisions in O’Reilly’s new contract that allows them to terminate his contract if they received any new claims of sexual harassment against him. Did you just throw up a little bit, again?

While O’Reilly is now gone from Fox News, what will Americans do to hold 21st Century Fox and Fox News accountable for their outlandish, sexist, profits at all cost behavior? Probably nothing. Will they boycott Fox News and stop watching them to hit them in the pocket book? Will they boycott companies still advertising on Fox? That’s unlikely. That’s not only too bad, but it speaks to our lack of moral courage and our own selfishness. We’re outraged, unless there’s something we want to watch. Unfortunately, that speaks more about Americans than Fox News. So stop watching Fox News and don’t buy the products of those who still advertise on Fox News.

What should women who are sexually harassed do? I encourage them to talk to an attorney knowledgeable in employment law as soon as the harassment starts so they can get counsel throughout the process and know their rights and filing deadlines. While some might suggest immediately reporting the sexual harassment to your company’s Human Resources department (assuming they have one), my experience over the years has been that it’s critical to remember that those folks in Human Resources are also paid by the company that pays the harasser, and at the end of the day, their loyalty is to the company, not the victim of the harassment. Get independent legal advice. Often attorneys will meet with you initially without charge.

The hundreds of thousands of women brave enough to say “Me Too,” on social media is only the tip of the iceberg. That should break our hearts and piss us off. Thank you to all the women for your courage and speaking out. My heart also breaks  for the even  larger number of women out there who we know have been sexually harassed, but who were not able to say “Me Too.” We see you and we believe you.

We men can and must do better. We can and must change our broken legal system. Speak up. Act. Now.