#SexualHarassment In The Post-Trump Election Workplace

As an Employment Attorney in New York City, I’ve seen every type of discrimination case on the books. However, since Trump took office certain cases have started popping up like never before . . . sexual harassment claims. In this three part article series I will elaborate on the lifelong subject of sexual discrimination by first explaining the problem with the law in this article, next strategies and negotiations tactics for the employee, and finally how employers can win before these cases even begin.

Introduction

Working at a major law firm, I spent countless hours managing cases against major executives, and defending some of the largest corporations on the planet. Then, after leaving the firm, I was able to use that knowledge on the other side of the isle to help individual employees in their quests for justice. Through that transition I’ve learned that many of the issues that arise between employee and employer have little to do with what the law considers “harassment” and a lot more to do with the state of the employee’s feelings or settling the score. I feel as though many times when I’m learning the details of a case the plaintiff inevitably has the idea that because the actions taken by an employer are unjust or unfair that the law protects them, but they struggle when I explain that it's not about fairness, or even justice, the law is just… the law. And that’s really the problem with the process.

Sexual Harassment, even in its most heinous form, has less to do with the actual activity on part of the employer, and way, way, more to do with the sufficiency of evidence. In sum, it's not what you know, it's what you can prove.

In fact, that’s all the law cares about, what you can prove, and did you get it in the record. While Title VII has been the law for well over 50 years, the introduction to Donald J. Trump’s republic has sent the state of sexual harassment into a rare period of flux. Now is the time, if ever, for a rare and unabashed corporate and individual review of what sexual harassment is and whether those laws jive with what society expects.

The Law:

Through Title VII of the Civil Rights Act of 1964, United States Federal law protects individuals from harassment and discrimination on the basis of Race, Pregnancy, Religion, National origin, Disability, Age, and of course our favorite, Sex.
Anyone can bring a case by filing with the Equal Employment Opportunity Commission so long as their employer is private, has more than 15 employees and less than 180 days has passed since their act of discrimination.

The Legal Standard:

The standard for proving a discrimination claim is, at least analytically, quite clear:

The “McDonnell Douglas” burden shifting analysis case established that, in an employment discrimination case:

1. The plaintiff (employee) must first establish a prima facie case of discrimination.

2. The defendant (employer) must produce evidence of a legitimate non-discriminatory reason for its actions. If this occurs, then the presumption of discrimination dissipates.

3. The plaintiff must then be afforded a fair opportunity to present facts to show an inference of discrimination. The plaintiff may do so either by showing that the defendant’s explanation is insufficient and only a pretext for discrimination or by otherwise proving that the defendant's actions used one of the listed unlawful discriminatory parameters

In essence, the employee has to show through evidence that the employer's’ legitimate business reason is merely a “pretext” for the discrimination, or put another way, that the employer’s reason is untrue, and their reason is not sufficient to overcome the employee’s allegations.

The Equal Employment Opportunity Commission:

The EEOC was founded on July 2nd, 1965 through the passage of Title VII of the Civil Rights Act of 1964. The organization’s first chair was Franklin Delano Roosevelt, Jr. an appointee of President Lyndon B. Johnson. The organization is charged with resolving discrimination issues exhibited by all private, and some public, employers. The EEOC utilizes the civil justice system through federal law to attain its goal of equality. Exercising lawsuits under Title VII of the Civil Rights Act of 1964, The Age Discrimination in Employment Act of 1967 (ADEA), the Rehabilitation Act of 1973, and the Americans with Disabilities Act (ADA) of 1990, the organization aims to counteract discriminatory policy and behavior by implementing financial disincentives and policy changes. Specifically, it targets employers who have reportedly exhibited negative behaviors based in whole or in part on an individual's race, color, national origin, religion, sex, age, disability, or employers who have retaliated against an individual for reporting and/or opposing a discriminatory practice. In 1999 the Commission officially implemented the EEOC Mediation Program: arbitration like counseling session structured in the aims of avoiding actual litigation. The program has strategically resolved roughly 50% of the plaintiff/employer issues with swift and pleasant results.

The Problem:

While the EEOC was created to try and curtail the vast issues of discrimination in the workplace, they are significantly understaffed and woefully under funded.

While you would be hard pressed to find a good Employment Law Attorney who would challenge the logic of the United States Supreme Court in construing how to resolve these very difficult cases, you would be at just as much of a disadvantage trying to find people who agree with that process. That is in essence the main problem with our sexual harassment laws, when nobody fully understands what our legal process is to address sexual harassment, hardly anyone can fully take advantage of it, or even properly defend these types of claims.

Right now, 75 to 90% of the cases of sexual harassment are thrown out on technical issues like lack of jurisdiction, or failure to file within the required time. Another 30 to 50% are discarded because of a failure to arbitrate as agreed to during the hiring process. Still, those few that make it to Federal Court are likely not to make it past one of the many stages of motion practice aimed at knocking it out before a jury or the public gets wind of the case.

While it seems employee-plaintiffs may be getting the short end of the stick in this process, employers are in no better of a position. Sexual harassment is BIG LAW. That means that representation does not come cheap. A major corporation defending a civil action on the basis of sexual harassment can expect to pay a retainer of anywhere between 85 to 200 thousand dollars, win, lose or draw. Chances are fairly high that most of those cases will be won, however, in the case where a company loses, juries have been known to hand down multiple hundreds of millions in emotional distress and punitive damages. Check out some of the biggest verdicts.

The process is broken. While the laws on the books give employees a chance to present their case, and employers a chance to defend, that’s not what usually happens. What happens in reality is, if an employee is sexually harassed and their case is procedurally ripe, they are able to find an attorney to take their case on a contingency-fee basis (usually for a third of the verdict) and it gets moved forward. If the employee is harassed and their case is not procedurally ripe, or they missed some unknown deadline, the employee can’t find an attorney, and usually has to suffer under the oppression of that boss.

On the employer side, it’s just as bleak. Because the law doesn’t provide for an equitable resolution through the court process, the media is usually used as a separate system of justice. Plaintiff’s counsel, who know verdicts against companies can range anywhere from 100 thousand to 100 million dollars, generally waste no time in airing their version of the harassment all over the news. Truthfully, these reports can have little effect on the company except to force the shareholders to take notice and “legal-up”. Employers who are charged with harassment claims have little choice once accused of harassment but to hire expensive counsel and treat the employee as a pariah.

Reflection:

The multimillion dollar verdicts, and expensive court proceedings show that at least publicly, society as a whole hates sexual harassment in the workplace and wants to curtail its prevalence on a national scale. However, that raises the necessary question; do our laws properly achieve that goal? The reality is, most of the cases of sexual harassment that have come out today, are not new, and have been just as commonplace, as in the 1960’s when Title VII was passed. The recent change has come in the public’s refusal to ignore the voices of the women who have complained. Their statements, if taken as true, raise some major questions about how we administer these ladies’ federal complaints.

For one, if we follow the line of logic, we may begin to question whether having a 180 day blanket rule makes sense. Naturally, we don’t want accusers coming out the woodwork when it's most opportune for them, but does that mean we totally silence their complaints. Yes, as time goes by memories begin to fade, and documents disappear, but that is what lawyers get paid to worry about. Moreover, if the goal is to keep these cases out of the workplace, giving the employer a 180 day cliff, does more to incentivize hiding the issues than resolving them.

Conclusion:

With the increasing number of claims coming out of the woodworks over the past year, it’s a pretty solid bet that sexual harassment cases will take on more and more of the public’s attention. What may also begin to happen at some point is that we become desensitized to the most egregious of those cases and lump them all together. While we all agree that no woman deserves to be “grab[bed] by the pussy”, we are in a time when that seems like less of an issue then trying to “forcibly kiss” someone. To be fair, both acts are extremely reprehensible, however one act lead to the Presidency, the other lead to a senator’s voluntary resignation by public outcry.

We need to evaluate whether the laws and enforcement of those laws still capture all of the issues we sought them to cover. If we feel as though a young woman who was touched by her boss at work, but doesn’t have the resources to hire legal counsel still deserves the right to bring a claim, we might want our elected representatives to make that point and change our laws to reflect this.

Next – So you were sexually harassed at work… What are your options?