Why So Many Victims Of Sexual Harassment Stay Silent, Still
Kathleen Peratis, The Atlantic, January 4, 2013
Two decades after Anita Hill's testimony against Supreme Court nominee Clarence Thomas, women are still punished for confronting their harassers.
I'm a lawyer, a long-time practitioner of employment discrimination law, and a partner at Outten and Golden LLP in New York City. I guess I am what some people disparage by calling a "slick lawyer," a way to put down those who are passionate about justice. The work is hard and in Anita Hill's day even more so than today, claimants were so far ahead of the times that they were often unsuccessful in their legal claims. The law was so inhospitable in the 1990s and for many years thereafter that had Anita brought a legal claim—which she never did—it is likely that she would have lost in a court of law.
At about the same time as Anita Hill's claims exploded onto the public scene, my firm was involved in a very similar case, unsuccessful at the trial stage and then successful on appeal, which is why I am able to speak publicly about it. The details of this case give you a flavor of what the law was like in 1991. The claimant was a woman named Lisa Petrosino who worked for Bell Atlantic, which is now Verizon, repairing telephone lines. She worked out of a garage in Staten Island with an all-male crew who tormented her every day. The banter among the men in the workplace was crude and misogynistic, which would have been bad enough for Lisa, but they also singled her out. They drew crude pictures of headless women, women with their legs spread in the air, pictures of men having sex with animals, and of her having sex with supervisors, and left them in terminal boxes she was assigned to work on so she would find them. She felt threatened by the depictions of dismembered women. She said, "It's not that I don't have a sense of humor, but this stuff is not funny." They ridiculed her appearance, they told her to "calm her big tits," they said she complained because she was "on the rag." Bell Atlantic not only did nothing to stop it, their supervisors joined in. Bell Atlantic's lawyers, one of whom was a woman, argued that none of this was illegal, it was just boys being boys. The federal district court judge agreed with them and dismissed the case.
The Supreme Court had decided years before that sexual harassment and hostile environment were illegal, but the prejudices of the trial judges remained. In Lisa's case, the trial judge saw no illegality. The appellate court finally reversed and sent the case back to the trial court for trial, and at that point, the case was settled. So the wrong was righted, in a way, but only in a way. Like Anita, Lisa suffered greatly along that road to justice. Some women are transformed by the vindication of a legal victory but some find the process totally debilitating and demoralizing. Women who go public still get punished. It's a sad reality, but some of my happiest clients are the ones who settled for less than their claim was worth and even the ones who decided not to complain at all. Women were punished in 1991, they were punished in 2000, and the sad reality is they are punished still today. I was recently retained by a woman who works at a major education institution in New York City. She was having a business dinner with her boss and he put her hand on his crotch, on his erect penis, freaking her out. She will probably sue and it will be harder on her than she can imagine. These cases do happen less now than they used to but when it happens to you, that is cold comfort.
But let me tell you a little bit about what is actually illegal, then and now. The definition of an illegal hostile environment has not changed—it is an environment where there is an atmosphere of hostility and misogyny that is either severe or pervasive. These words are subject to interpretation, of course, but in most courts, "severe" means that the bad actor, as we call him in my business, has engaged in at least some unwanted or unwelcome touching. I will explain the "unwanted" part in a minute. As for the "touching," it doesn't have to be rape, but to have a really good case for hostile environment discrimination it has to be serious. In the absence of unwanted touching, the claimant has to show that the bad actions were pervasive, and that means a pattern of incidents. How many? No one can quantify what is enough and as in any legal case, it will depend on many things, such as how the claimant and the other witnesses come across to this particular judge or jury.
I mention that the conduct has to be "unwelcome." This is very important because it provides defendants with the opportunity to blame the victim by saying she was a willing participant. It is the "You asked for it" defense. "Why did you send your boss birthday cards or light-hearted emails, if you were bothered by his conduct?" "Why did you get drunk at the holiday party?" "Why did you let your boss come to your room when you were traveling?" "Why did you tell all those off-color jokes?" "Why did you wear a skirt so short, if you're not a slut?" "Why didn't you quit?"
Because this road is so tough, I often hear clients say, "Why me? Why did this have to happen to me? Why has my life been turned upside down by this creep who had no right to do this to me?" And it is unfair. But the law has been transformed by the many women who have bravely stepped up and paved the way for the rest of us. That is what Anita did.
This post is adapted from I Still Believe Anita Hill: Three Generations Discuss the Legacies of Speaking Truth to Power.
The Epidemic Of Employer Misclassification Of Employees As Independent Contractors Under The Fair Labor Standards Act, And The Courts' Response
Justin M. Swartz, and Mariko Hirose, and contributions by Piper Hoffman, 2009
The Fair Labor Standards Act (FLSA)’s compensation requirements, such as minimum wages and overtime pay, apply only to “employees.” Chao v. Mid-Atl. Installation Servs., Inc., 16 F. App'x 104, 105 (4th Cir. 2001). Employers can get around these requirements and lower their tax bills at the same time by classifying workers as “independent contractors” instead of “employees.” Employers classify as independent contractors many workers who do not meet the legal definition: the Department of Labor estimates that up to 30% of U.S. employers misclassify workers. Courts have found rampant violations across certain industries.
Kathleen Peratis, The Forward, July 24, 2008. A brief discussion of who transgender people are, and the differences between transgender and gay people.
You have to hand it to Rep. Barney Frank, the man knows how to empathize. In the first-ever congressional hearing on workplace discrimination against transgender people, held by the House in late June in an Education and Labor subcommittee, Frank said he understands what it means to be trapped in the wrong body — because that is what happens when his legislation gets bogged down over in the Senate.
The lesbian, gay, bisexual and transgender — or LGBT, for short — press called the congressional hearing on gender identity discrimination “historic” and “groundbreaking.” The mainstream media pretty much ignored it, but the issue is worth keeping an eye on.
Arbitrability Of Sarbanes-Oxley Whistleblower Claims
This article explores the arguments presented by member firms and registered employees, and outlines what arbitration panels have decided. Laurence S. Moy. Pearl Zachlewski, Linda Neilan, and Katherine Blostein. The Neutral Corner, Newsletter of FINRA Neutrals, Volume 1, 2008.
Since the passage of the Sarbanes-Oxley Act of 2002 (SOX), arbitrators handling employment claims may be faced with a throny question concerning SOX whistleblower claims: Should a SOX claim be litigated in court or arbitrated? Ultimately, the question comes to whether SOX whistleblower claims constitute "employment discrimination" claims, and are thus exempt from arbitration under Rule 13201 of the Code of Arbitration Procedure for Industry Disputes (Code). This article explores the arguments presented by member firms and registered employees and outlines what arbitration panels have decided.
Justin Swartz and Rachel Bien, Section of Labor & Employment Law, American Bar Association, Vol. 35, Number 4, Summer 2007
Few doubt the merits of diversity in the workplace. Indeed, a host of organizational leaders from chief executive officers to top military brass have recently touted the importance of a diverse labor force. As a result, an entire industry has emerged, geared toward eradicating workplace inequality.
Many thoughtful ideas have made their way onto "best practices" lists that identify methods to increase the representation of historically underrepresented groups in corporations and firms.
Despite all of this attention, however, the challenge of actually achieving diversity remains. As Alexandra Kalev, Frank Dobbin, and Erin Kelly wrote in a recent article examining the effectiveness of employers' efforts to promote diversity, "We know a lot about the disease of workplace inequality, but not much about the cure." "Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies," 71 Am. Soc. Rev. 589, 590 (August 2006).
At the 2007 National Conference on Equal Employment Opportunity Law in Charleston, South Carolina, the Section's Equal Employment Opportunity Committee (EEOC) presented two panels that focused on efforts to increase diversity in private sector workplaces, including law firms. The consensus that emerged from both panels was clear: truly overcoming inequality in the workplace requires more than changing hearts and minds. It demands a structural, top-down approach with incentives for meeting concrete diversity goals.
Ethics Corner: Third Circuit Vindicates Plaintiff's Attorney
Justin M. Swartz and Cara E. Greene. July, 2007. Ethics Corner is a regular contribution by the ABA, Labor & Employment Law Section’s Ethics and Professional Responsibility Committee.
The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant. EEOC v. HORA, Inc., No. 05-5393, 2007 U.S. App. LEXIS 15705 (3d Cir. June 29, 2007) (unpublished decision). Characterizing the disqualification as “draconian,” the Circuit held that the district court abused its discretion because the lawyer did not violate any ethics rules, and, even if she had, there was no prejudice to the defendant.
The plaintiff’s lawyer, Jana Barnett, represented Manessta Beverly in a sex harassment and retaliation case against a Days Inn franchise and its management company. During discovery, Barnett conducted an ex parte interview of Debbie Richardson, an administrative assistant at the Days Inn. The district court disqualified Barnett for conducting the interview, finding that she violated Pennsylvania Rules of Professional Conduct (“PRPC”) Rules 4.2, 4.4, and 5.7.
The Third Circuit reversed, holding that Barnett did not violate Rule 4.2 because the administrative assistant was not a member of the organization with whom ex parte contact was forbidden. The Third Circuit recently overturned a district court order disqualifying a plaintiff’s attorney who had conducted an ex parte interview of the defendant’s administrative assistant.
A brief discussion of teens and sexual harassment in the workplace, by employment lawyer Kathleen Peratis, The Forward, December 31, 2004.
Thousands of children will go to work with their mothers or fathers on Ms. Magazine’s “Take Our Daughters and Sons to Work Day” in April. Most of the kids will spend the day in a white-collar enclave, the sort of place they may hope or expect to inhabit in four or eight or 10 years. But much sooner, many of them will be going to work in places that are considerably less well-mannered — fast-food restaurants and large chain retail stores — and they will be ill prepared for what lies ahead.
The daughter of a friend of mine works in one such place, a fast-food restaurant. A few weeks ago, my friend asked me if the laws against sexual harassment apply to 16 year olds. She came to learn that the 19-year-old assistant manager (and scheduler) was hitting on her daughter. Her daughter was holding him off, but she knew her time was running out.
This girl’s experience is not uncommon. In early December, the Washington Post reported that the Equal Employment Opportunity Commission had filed a lawsuit on behalf of a 17-year-old high school student and part-time waitress against a St. Louis fast-food restaurant, Steak ’n Shake Operations. A cook had grabbed, threatened and exposed himself to her, she alleged, and when she complained, the manager suggested it would be better if she quit. This was the commission’s 25th sexual harassment lawsuit on behalf of teens in 2004, up from eight in 2002.
Whistleblower Claims Under The Sarbanes-Oxley Act Of 2002
Laurence S. Moy, Linda A. Neilan, and Hollis Pfitsch (Summer Associate), Practising Law Institute, October 7-8, 2004, and December 9-10, 2004.
In the wake of recent accounting and corporate scandals, Congress passed the Sarbanes-Oxley Act of 2002 (hereinafter, “Sarbanes-Oxley,” “SOX,” or the “Act”), Public L. No. 107-204, Sec. 806, codified at 18 U.S.C. § 1514A.1 In addition to providing greater oversight of the accounting industry and protecting investors, the Act prohibits employers from retaliating against whistleblowers. (“Whistleblower” might be considered a misnomer since the Act’s scope is not limited to employees who “blow the whistle” by refusing to engage in illegal or wrongful acts or by reporting such activities to the employer or the appropriate authorities.) The Act provides extensive coverage to employees who report improper conduct as well as employees who participate in proceedings relating to same. Companies that fall under the purview of Sarbanes-Oxley are prohibited from discharging, demoting, suspending, threatening, harassing, or discriminating against any employee who engages in protected activity. 18 U.S.C. § 1514A(a).
Prior to Sarbanes-Oxley’s enactment, federal and state whistleblower statutes provided limited protection for a narrow class of employees. The False Claims Act covers employees only if they report fraud on the federal government. 31 U.S.C. § 3730(h).2 In New York, a state statute had provided pre-Sarbanes-Oxley whistleblowers with extremely limited coverage. That statute, New York Labor Law § 740, only protects an employee who “discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” N. Y. Lab. Law § 740(2). Thus, Sarbanes-Oxley has vastly changed the horizon of protection for whistleblowers in the private sector.
This paper addresses the whistleblowing provisions of the Act and its accompanying regulations, provides guidance to lawyers advising companies responding to potential whistleblower complaints of improper conduct, and reviews the duties of lawyers to report wrongful conduct as per the Securities and Exchange Commission’s (“SEC” or “Commission”) new regulations.
An essay on the differences in sexual harassment in Europe and the U.S, by employment law attorney Kathleen Peratis, The Forward, August 6, 2004.
In March, an American woman on the staff of the Office of the United Nations High Commissioner for Refugees accused the high commissioner himself of sexual harassment, saying he had “grabbed her behind.” The dashing and handsome high commissioner, Ruud Lubbers — a former Dutch prime minister who is currently charged with protecting 17 million refugees from violence, famine and sexual harassment — did not deny the act with which he was charged.
His defense, at least as explained in a letter to his staff widely circulated throughout the U.N., was that the woman had misunderstood his “friendly gestures.” In the course of the official investigation, four other women came forward and said the high commissioner had done the same to them. A few weeks ago, Kofi Annan, the secretary general of the U.N., “admonished” the high commissioner for his behavior but cleared him of sexual harassment charges.
There is probably not a single large company in the United States that would not have fired a manager for doing what Lubbers did. Most companies in Europe, and most other places for that matter, would have done what Annan did, which is pretty much nothing. Who is right, and why?