August 31, 2018 Feature

#MeToo Shakes the Legal Landscape on Sexual Harassment

By Cynthia L. Cooper

The pervasiveness of sexual harassment catapulted into public consciousness when #MeToo exploded across the Internet on October 15, 2017. In 24 hours, half a million tweets replied to a single suggestion by actress Alyssa Milano that people post “me too” if they had been sexually harassed or assaulted. Twelve million responses went up on Facebook.

People described groping, unwanted kissing, rape, insulting comments, innuendo, coercion, and threats. Some told stories; others merely signed #MeToo.

Of course, this was not the first time sexual harassment has received widespread public attention. Anita Hill’s testimony before the Senate Judiciary Committee in 1991 that she was sexual harassed by Clarence Thomas, then a nominee to the Supreme Court, set off sparks of concern. Anti-violence activist Tanara Burke launched the original Me Too campaign against sexual violence 10 years ago. And workplace sexual harassment claims are nothing new; from 2010 to 2017, approximately 12,000 such claims were filed annually at the Equal Employment Opportunity Commission (EEOC). Still, this new outpouring of outrage flowed across the cultural landscape with dam-bursting speed.

In response to the #MeToo movement, a panoply of changes on sexual harassment are coursing through the legal system, including an innovative legal network to handle cases of sexual harassment, legislative proposals, new American Bar Association (ABA) standards, cultural shifts, and grassroots actions.

“It’s not a moment and it’s not a movement—it’s a reckoning,” says U.S. Rep. Jackie Speier of California, who has worked on sexual harassment issues for decades. She released her own #MeToo video, describing how she was sexually harassed as a young congressional worker by a chief of staff who cordoned her in a room, grabbed her face, and stuck his tongue down her throat. In November 2017, she guided passage by unanimous voice vote of the Congressional Accountability Act of 1995 Reform Act (H.B. 4294) and H. Res.724 to reform how Congress addresses sexual harassment within its ranks. She’s moved on to investigating how federal agencies are addressing sexual harassment and, with the bipartisan Congressional Caucus for Women’s Issues, participating in hearings on sexual harassment in the service industries and other private business sectors.

Advocates are pushing forward to fix gaping holes in sexual harassment laws at the state and federal level, and they are pinpointing other structural impediments on sexual harassment, gender parity, and workplace fairness.

Shining a Laser Beam

A potent mix of celebrities and mainstream media attention paved the way to the #MeToo eruption. Allegations against Hollywood producer Harvey Weinstein in the New York Times and the New Yorker were immediate precedent.

But other cases added to the growing awareness of the pervasiveness of sexual harassment. In the summer of 2016, a lawsuit filed by television commentator Gretchen Carlson against Fox News chairman Roger Ailes garnered significant headlines. “Gretchen Carlson sued Roger Ailes in public. She didn’t accept that she had to go to arbitration,” says longtime employment law litigator Nancy Erika Smith of Smith Mullin P.C. in Monclair, New Jersey, who represented Carlson. “The world looked at a well-known woman suing a really, really powerful and well-known man. And winning. And journalists were a big part of that because other women started to talk about their abuse.”

Carlson won a settlement of $20 million, according to published reports, and Ailes was forced out of the company within weeks.

Media coverage also drove attention to an action brought by Ellen Pao in 2015 against the Silicon Valley venture capital firm Kleiner Perkins Caufield & Byers on claims of gender bias under California law. Pao lost, but in what has been dubbed as the “Pao effect,” other women in the tech industry started coming forward. “I do believe that if tried today, there would be a different result,” says Therese M. Lawless of Lawless & Lawless in San Francisco, who represented Pao at trial. “It was a case that had to be brought. So few were willing to go public. Ellen was willing to take on an industry that is the wealthiest in the country.”

Even today, Lawless says, if she is with Pao on the street, women stop her to say thank you.

A New Legal Network Emerges

Shortly after #MeToo, people in Hollywood mobilized Time’s Up (www.timesupnow.com) in response to the stories of sexual harassment. With stars draped in dramatic black outfits at the Golden Globe Awards in January 2018, Time’s Up declared, “The clock has run out on sexual assault, harassment and inequality in the workplace. It’s time to do something about it.”

One major component “of doing something” resulted in the creation and funding of the Time’s Up Legal Defense Fund, operated by the National Women’s Law Center (NWLC) in Washington, D.C. (https://nwlc.org/times-up-legal-defense-fund and https://nwlc.org/about/nwlc-legal-network/https://nwlc.org). Through celebrity donors and a GoFundMe campaign by Time’s Up, the Legal Defense Fund secured $21 million in four months.

The Legal Defense Fund collaborates with lawyers across the country who are willing to help individuals with sexual harassment claims. The idea for it was shaped by two high-profile lawyers—Roberta (Robbie) Kaplan of Kaplan and Company, LLP, in New York and Tina M. Tchen of Buckley Sandler’s Chicago office and former Chief of Staff to First Lady Michelle Obama. Tchen sought out Kaplan while working with Time’s Up planners in Hollywood to help Melanie Kohler, a woman who was sued for defamation by a Hollywood producer after she posted on Facebook a MeToo commentary about rape.

Kaplan, a longtime friend of Tchen, agreed to represent Kohler, but she and Tchen realized more legal heft was necessary to bridge gullies in sexual harassment matters. “We needed to do two things—to defend women like Melanie who spoke out and were threatened with legal action even if those things happened to them,” Kaplan says.

In addition, many cases fell through the cracks because of high litigation costs and low damage claims. “The vast majority of women out there who were experiencing sexual harassment day to day in middle-class jobs or working-class jobs were not getting help,” Kaplan explains. “It’s become essentially uneconomic for plaintiff lawyers to take their cases.”

The concept of a legal defense fund found a receptive home at the NWLC, and in January 2018, the Time’s Up Legal Defense Fund opened. Lawyers can participate by applying online (www.nwlc.org/join-the-legal- net​work). In its first quarter, 700 lawyers in more than 40 states signed up, says Fatima Goss Graves, CEO and president of the Washington, D.C., nonprofit. The lawyers agree to provide a free initial consultation and may go on to further representation with varying individual arrangements.

In the first quarter, the network has heard from 2,500 people seeking assistance. Some individuals proceed with cases; others want to know their options. “Lawyers should know how powerful it is for individuals to talk to someone who can tell them what their rights are and to help them make informed decisions,” Goss Graves says. “We hear that again and again.”

The Legal Defense Fund seeks lawyers in the network who can advise on defamation as well as sexual harassment. “Many people are speaking out in this moment, and that comes with tremendous risks,” Goss Graves points out. “Some people have been subjected to bullying as a result of speaking out. We know that was certainly one of the reasons women were silent. Many people would like to understand what the stakes are.”

A key element of the Legal Defense Fund is underwriting costs and fees that will help lawyers bring actions in certain cases. “We want to expand the range of cases to be brought, and the range of people who would feel protected and able to come forward,” Goss Graves says.

The assistance is recognition that sexual harassment claims can be stymied because of costs of discovery, heightened by aggressive employer pushback. “I maxed out my line of credit many times,” says Nancy Erika Smith.

In cases of low-wage workers, a federal cap on damages and limited back-pay awards may mean that, even if they win, lawyers may not be adequately compensated for their time. In defamation cases, there may be no award at all, and individual clients are left to foot the bill.

In March, the Legal Defense Fund began accepting the first applications for funding assistance from network lawyers. Under the fund’s guidelines, cases are prioritized if they involve sexual harassment or retaliation in low-wage work, such as restaurants, agriculture, or domestic positions; women in male-dominated occupations, such as construction, mining, or policing; sexual harassment or threats by a prominent individual where the power disparity is extensive; multiple individuals within one workplace or other indications of systemic problems; the potential to establish important precedent; situations of extreme retaliation; and cases that involve intersecting identities such as race, disability, immigration status, or LGBTQ status. The cases need not fit into an “impact litigation” slot for lawyers to qualify, but the NWLC is not adverse to those cases either.

One lawyer in the Legal Defense Fund is Debra S. Katz, a partner in the plaintiff’s employment and civil rights firm of Katz, Marshall & Banks, LLP in Washington, D.C., which represents one of the women who spoke to reporters about harassment by newly resigned New York Attorney General Eric Schneiderman. In fact, all 21 members of her firm are participating in the Legal Defense Fund.

“It’s crucial. This legal network gives confidence to women that they can come forward when they don’t have the means to pay for a lawyer, when they are in locations without experienced counsel,” says Katz, a 30-plus year veteran in the field. “This sends an important signal that people will not be thwarted in holding companies accountable.”

Katz notes that as the #MeToo movement unfolded, she saw the ground shift—companies became more willing to resolve claims and to incorporate structural changes in settlements. But many people expressed concern that low-wage workers would be left behind. “The fund provides power to a segment of the workforce that hasn’t had it to be able to ensure zealous and competent representation,” Katz says.

Proposals for Legal Change

The sudden upsurge in attention to sexual harassment has underscored legal frailties. “In every case, out of thousands, what women say they want is: ‘I want to keep my job. I want the harassment to stop.’ It doesn’t work out that way,” Smith says.

Several proposals, both mainstream and grassroots, seek to mend and strengthen the frayed cloth of protection from sexual harassment. The ABA has taken an active role (see sidebar).

“The #MeToo movement has really put a spotlight on legal rules that create toxicity in the workplace,” says Terry O’Neill, former president of the National Organization for Women and now executive director of Oakland, California--based National Employment Lawyers Association, which has 4,000 affiliated employee rights lawyers.

Some of the proposed changes include:

An end to the use of blanket pre-dispute arbitration agreements. Arbitration agreements force sexual harassment claims into secret decision-making venues where employers have the upper hand. “The underlying behavior is never revealed. That leads to a huge power imbalance. It’s kind of a Wild West for employees—take it or leave it,” O’Neill says. Proposals in Congress include the Arbitration Fairness Act in Congress (H.R.1374, S.2951), which would make it unlawful to impose forced arbitration on employees before a dispute arises, and the Ending Forced Arbitration of Sexual Harassment Act of 2017 (S.2203), sponsored by Sen. Kirsten Gillibrand of New York. States are looking at rules to prohibit arbitration in sexual harassment cases or, in some cases, in all employment disputes. Some high-profile companies, including Microsoft, Uber, and Lyft, have acted on their own to remove sexual harassment claims from arbitration.

Raise minimum wages for tipped workers. Tipped workers are especially vulnerable to sexual harassment by customers, bosses, and coworkers. O’Neill is among those who want to see an end to a lower minimum wage for tipped workers. NWLC, in a white paper, #MeToo​What​Next: Strengthening Workplace Sexual Harassment Protections and Accountability, by Maya Raghu and Joanna Suriani, lists eight states that have adjusted their minimum wage laws for tipped workers: Alaska, California, Hawaii, Minnesota, Montana, Nevada, Oregon, and Washington.

Refine the use of nondisclosure agreements (NDAs). The impediments with nondisclosure agreements jetted into the news with #MeToo, highlighting how they prevent women from sharing their experiences and push problems underground. Several proposals seek to limit their use by employers, especially before a dispute has arisen. But policies should be “carefully calibrated,” notes the NWLC, because victims, fearing retaliation or damage to their job prospects, sometimes seek confidentiality, too.

Develop reporting mechanisms for the federal courts. Working groups in the federal courts are seeking to craft solutions to fill a void in sexual harassment reporting mechanisms for judicial clerks and other court employees. In December 2017, several former judicial clerks made public allegations of sexual harassment against Ninth Circuit U.S. Court of Appeals Judge Alex Kozinski; Kozinski retired shortly after.

Reform Title VII of the Civil Rights Act of 1964, or state equivalents by:

  • Expanding the scope of workers who are covered. Currently, employees in smaller businesses (less than 15 under federal law) are not covered by the EEOC law on sexual harassment. Domestic workers are excluded. In addition, the “gig economy” puts many independent contractors outside the frame of protection.
  • Extending the statute of limitations for reporting, now only 180 days under federal law (300 in some cases).
  • Removing the caps on awards to plaintiffs, now $50,000 at companies with under 100 employees, to ensure that victims of harassment are fully compensated for harm. According to NWLC, eight state antidiscrimination laws have taken this approach: California, Hawaii, Massachusetts, New Jersey, Ohio, Oregon, Vermont, and West Virginia.
  • Reframing the definition of a hostile work environment, which now must be “severe or pervasive.”
  • Expanding accountability by making abusers personally liable and not companies alone.
  • Extending actionable claims to coworkers and low-level supervisors.
  • Increasing the burden on employers to prevent sexual harassment, for example, by creating a standard of strict liability rather than barebones compliance with policies on the books.

Broader remedies are proposed, too, to address the overall working conditions of women with pay equity, promotion, and opportunities. For some, Robbie Kaplan among them, now is the time to push for the Equal Rights Amendment to secure permanent change.

Others working in the legal field are not waiting for lawmakers to act. Law students took to social media to call out firms that sent contracts to summer associates with predispute arbitration clauses. Law firms responded by eliminating the clauses, but some schools, including Yale Law School, are now pressuring firms to disclose their arbitration and nondisclosure policies before being allowed to recruit on campus.

Women lawyers also came together on social media with their own hashtag, #LadyLawyerDiaries, to open conversations on gender and law. “MeToo created an appetite for women to have honest conversations,” says Jaime Santos, an associate at Goodwin Procter LLP in Washington, D.C., and one of the hashtag organizers. “People are not going to stop talking about this. It’s not just about people coming on to coworkers—there are deeply entrenched issues with the way that hiring happens and the way that different jobs are valued.”

The reality is that #MeToo has changed the conversation in law firms already, according to ABA President Hilarie Bass. “Most managing partners a year or a year and a half ago would have suggested that there wasn’t any sexual harassment, or not in their firm,” she observes. “That was the perception. Today, they think the chances are that it’s going on, so they want to know ‘how do I eliminate it?’ or ‘how do I learn about it?’ It’s a very different mindset.”

Will #MeToo be the breaking point for addressing sexual harassment in the law?

“It depends on whether or not we step up to meet this moment,” Goss Graves notes. “There will be changes of some sort, and the question is if it is the change that we need to make a lasting difference.”

ABA Resolution Gives Employers Guidance on Policies

The American Bar Association took strides against sexual harassment when the Commission on Women in the Profession introduced a resolution at the Midyear Meeting in Vancouver, British Columbia, in February 2018 to encourage new policies for employers on how to address concerns about sexual harassment. Resolution 302 lays out specific recommendations to prohibit, prevent, and redress sexual harassment and retaliation—and it was passed unanimously by the House of Delegates.

Resolution 302 updates a policy passed in 1992. “It reflects that the problem of sexual harassment in the workplace is not going away and that a very broad array of people feels it needs to be addressed and strengthened,” says Stephanie A. Scharf, chair of the Commission on Women.

#MeToo and the Time’s Up initiative “brought the issue more front and center for most Americans, including lawyers and legal employers,” Scharf notes.

The resolution urges employers to address harassment and retaliation “based on gender, gender identity, sexual orientation, and the intersectionality of sex with race and/or ethnicity.” It sets out methods that include creating a policy, reporting, investigation, anti-retaliation measures, remedial and disciplinary actions, procedures for settlement of claims, effective training, and addressing implicit bias. “All employers should be thinking about adopting these policies and procedures at their firms,” Scharf says.

The Resolution follows the 2016 adoption of ABA Model Rule of Professional Conduct 8.4(g), suggesting antidiscrimination measures for adoption by state disciplinary codes. (See “Lawyers on Notice: Harassment and Discrimination Can Endanger Your License,” https://www.americanbar.org/groups/women/publications/perspectives/2017/winter/lawyers_notice_harassment_and_discrimination_can_endanger_your_license.html.) That provision took two years to gain passage. Now, 25 states have adopted it, according to ABA President Hilarie Bass.

Zero Tolerance Manual on Sexual Harassment

In the spring of 2018, the ABA Commission on Women in the Profession released a manual of resources on sexual harassment policies and procedures, Zero Tolerance: Practices for Combating Sex-Based Harassment in the Legal Profession.

The manual, a comprehensive update from a 1992 version, includes case law, definitions of sexual harassment, as well as information on an effective sexual harassment policy, reporting procedures, anti-retaliation measures, staff training, investigations, and appropriate sanctions or discipline.

The manual was edited by Wendi Lazar, Terese Connolly, and Gregory Chiarello and includes a preface by Anita Hill.

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By Cynthia L. Cooper

Cynthia L. Cooper is an independent journalist in New York with a background as a practicing lawyer.