Lawyers Say Esty’s Workplace Leadership Doesn’t Work In A #MeToo Moment

Apr 5 2018

Garrison, Levin-Epstein, Fitzgerald & Pirrotti Partner Nina Pirrotti was recently interviewed by NPR in connection with Congresswoman Elizabeth Esty’s failure to promptly discipline her former chief of staff after being put on notice he was sexually harassing one of her former staffers. Read below to learn the whole story or listen to the whole interview here.

By PATRICK SKAHILL

Earlier this week, Congresswoman Elizabeth Esty said she will not seek re-election to a fourth term. Esty announced the decision following criticism over how she handled a workplace harassment case involving her former chief of staff.

Esty’s office eventually terminated the employee, but not before both parties signed a detailed confidentiality agreement. But in today’s #MeToo moment, those contracts are getting increased scrutiny.

It took months for her office to investigate and eventually fire her then-chief of staff, Tony Baker.

A female employee reported she was a target of harassment by Baker, which included a death threat.

When Baker was fired in 2016, Esty said House employment lawyers “very strongly counseled” both sides to sign a confidentiality agreement.

“They said you really need to protect the office and you,” she said. “This is what you do. This will protect you.”

But it also protected Baker. While it muzzled him from talking, it also scrubbed any information about his bad behavior from personnel records.

“A severance agreement is a contract between the employer and the employee,” said Suzanne Goldberg, a professor at Columbia Law School and director of its center for Gender and Sexuality Law.

Goldberg said thanks to recent trends like the #MeToo movement, those contracts are changing.

“There is certainly much more skepticism toward non-disclosure agreements and confidentiality provisions and severance agreements today than there was even a year ago,” Goldberg said.

Esty said her handling of the firing was wrong. She said she should have acted quicker to suspend Baker — and that she won’t run for re-election because of it.

But she said Baker’s level of access did raise real privacy concerns.

“He had keys to my apartment. He had my tax returns. He has passwords to all my accounts,” Esty said.

Nina Pirrotti is a partner at a New Haven law firm specializing in employment litigation.

She said it’s common for employers not to share details of a severance agreement, and that confidentiality can be important. But she said this case is different.

“It’s one thing to remain silent, or neutral,” Pirrotti said. “The agreement goes much further than that.”

She said it’s not common for a boss to recommend an employee like Baker for another job.

But that’s what Esty did, potentially allowing Baker, “to obtain another position — and a position of power,” Pirrotti said, “without there being any indication that there was any concern about the manner in which he conducted himself in the workplace.”

Esty has since said it was wrong to give Baker a recommendation for a job.

Columbia’s Suzanne Goldberg said public skepticism of confidentiality clauses in agreements between public employees will only grow, especially when they’re related to serious workplace misconduct.

“What might have seemed completely routine in 2016, now when we look back with the knowledge that we have in the spring of 2018, seems surprising,” Goldberg said.

And out of that social shift, she said, hopefully — more employees will feel comfortable reporting workplace abuse.

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