Jan 10 2018
By Daniel Schwartz on January 10th, 2018.
After a break for the holidays, my long-running discussion with Nina Pirrotti, an employee-side attorney, returns. Nina is a partner at the law firm of Garrison, Levin-Epstein, Fitzgerald and Pirrotti, where she represents employees in all types of matters. She’s a past-President of the Connecticut Employment Lawyers Association, a current member of the Executive Board of NELA, and a frequent presenter on employment law topics.
In one of our prior discussions last year, we talked about whether we were seeing the beginning of a trend of sexual harassment matters after the Fox News scandals. Now, after the last few months, we revisit the topic further to see where we are. Let us know what you think about posts like this in the comments below.
Nina: A warm hello to my management lawyer friend! I could not think of a more opportune time to re-kindle our dialogue about sexual harassment. For me, having Time Magazine name its Person(s) of the Year as the Silence Breakers has been the gratifying culmination to a year of sea change on this vital topic.
I got to tell you Dan (and in so doing will undoubtedly reveal to our readers that I lead an embarrassingly sheltered life), that before Taylor Swift exhibited the courage to subject herself to countersue David Muellerman (the man who sexually assaulted her and brought an unsuccessful lawsuit against her for defamation when she outed him) I did not even know who she was. She is my new hero. She sued him for a symbolic $1 and she did it, she said, because she wanted to empower other women who have been sexually harassed and assaulted to come forward.
Well, I don’t need to tell you that they are coming forward in droves. It is as if a switch has been flipped. The paradigm has shifted and women who once felt that they had to suck it up in order to feed their families and save their careers are beginning to have hope that they no longer have to make that Hobson’s choice. And just as gratifying as this loosening of fear in victims of sexual harassment and assault about coming forward has been the employers’ swift responses in holding the predator (no matter how lofty his perch) accountable. Hallelujah!
Is this the beginning of the end to sexual harassment as we know it? I wish. Did you notice that cropped elbow that is in the photograph of the otherwise well-known faces on the front cover of Time’s Person of the Year issue? The elbow symbolizes the millions of women who endure sexual harassment and assault and do not come forward for fear that their careers, their reputations, their families, and/or their personal safety are at stake if they do.
While I am gratified by the swift and appropriately severe responses to sexual harassment and assault committed by powerful men in the public eye, most of the sexual harassment and assault victims I represent do not have that leverage that comes with an outed perpetrator who has a public persona. In such cases, too often, unless the employer fears public exposure, I find it does not have that same sense of urgency to take action.
What about you, Dan? What does this surge in reporting indicate to you? Are you finding more clients who are interested in taking preventative measures? What are their concerns?
Dan: Happy New Year to you Nina! So, it’s been quite an interesting few months. Everyone seems more busy. Before I talk about that, it’s worth emphasizing that lost in all this reporting is that the incidents of misconduct that are making headlines are really varied in scope. You have incidents of outright sexual assault being tossed together with conduct that may (or may not even) be classified as sexual harassment.
And that is what I’m concerned about now. A tasteless joke in the workplace is clearly NOT the same as some of the incidents that, say, Harvey Weinstein is accused of. (You can look it up; this is a safe for work blog, after all.) And so, yes, we’re hearing more incidents reported. But that doesn’t necessarily translate to more credible claims. I’ve heard from other attorneys representing employees that they’re seeing twice as many cases come in to them but they aren’t taking a lot more cases.
And as we know, we’re still months away from seeing new lawsuits arising from these claims too. What happens by then?
It’s too early to predict that the #MeToo movement won’t have the same impact six months from now (I happen to think that it will) but even since the holidays it seems the press is starting to move on a bit (Golden Globes, notwithstanding). It’s hard to keep up the pressure that the end of 2017 had.
For employers, it’s important to not get caught up in assuming the worst and thinking that everything they’ve been doing has been a failure. Much HAS changed over the last 20 years. I do think, though, it’s an opportunity for employers to re-evaluate their training. They can also take a look at their culture: Are there any expense reports revealing something more nefarious (a Gentleman’s Club visit perhaps?)? Is it time to institute a “no-dating” policy for supervisors/subordinates? And where are your weak spots?
And while we’re at it, did you see this recent Hartford Business Journal article on sexual harassment this week? Some people we know are quoted.
Nina: Ha! I did indeed read that well-written article and found the persons quoted in it to be insightful and eloquent!
Actually, I will seize upon this moment to share with you something I told the reporter that did not make it into the article (how often do I get this kind of opportunity?) which is that when I was asked what inspired me to become a plaintiff’s employment lawyer, I told her I do what I do because of Anita Hill, my original hero. It has taken 25 years (I know this because the Clarence Thomas-Anita Hill hearings took place the year I graduated law school) to get to the point where we are right now but we did it by climbing on the very broad and powerful shoulders of this giant. This remarkable woman, a paragon of integrity, was branded “a little bit nutty, a little bit slutty” by Thomas supporters. What disgusts me even more, though, is that those who were supposed to ensure that the hearings were balanced and fair did nothing to protect her.
Mr. Thomas did not sexually assault Ms. Hill but the damage he caused her by propositioning her, recounting pornographic scenes to her and bragging to her about his sexual prowess was still profound. I know you were not implying this, but I think it bears emphasizing that sexual harassment does not have to rise to the level of sexual assault to be career changing and life changing.
Fortunately, I haven’t encountered much in the way of overreactions to an off-color joke or an isolated inappropriate comment but I certainly agree with you that were someone present me with such facts, I would advise her that they do not rise to the “severe or pervasive” standard needed to make out a prima facie case of sexual harassment.
I like the fact that you see the #metoo movement as an opportunity for self-critical analysis and am particularly intrigued by your musing about the propriety of a “no-dating” policy for supervisors and subordinates. I actually think it is a good idea. The potential for that power dynamic to be exploited, from the time just before the sexual relationship commences, through the relationship itself and, should it terminate, in the aftermath of that termination, does not bode well for anyone, not the subordinate, the supervisor, their co-workers or the company! I am a big proponent of universities taking a similar stand on faculty-student romantic relationships for similar reasons.
Tell me more about your thoughts on such a policy. Too Big-Brotherish? What about the training you are doing these days? Is there just more of it or are you conducting it differently? Are there topics you are including that were not previously on your radar screen?
Dan: Anita Hill’s impact on modern-day sexual harassment law cannot be overstated. I recall being in college and watching those hearings. It had an impact on me too; I was a bit naïve too and was shocked that workplaces still had this sort of thing going on. Wasn’t that supposed to have ended in the 50s and 60s?
Anyways, I think policies only go so far. After all, it’s hard to regulate “love”. But I do think that even consensual relationships can lead to issues for companies that are separate and part from harassment. (And many aren’t harassment, to be clear.) Regulating the relationships though is the issue. I have been surprised that colleges have still be slow to adopt such regulations too. Perhaps there has been this Hollywood-notion that such relationships are cool in some way, but I agree that the “ick” factor still should apply.
As for the training, we’ve been pretty fortunate that our training already had some of the hallmarks that I think are being talked about for “best practices”. We try to make it interactive — we have voting buttons for example — and use real-life scenarios. But even so, we’re taking another look at the slidedeck that we use. In fact, I’m giving a presentation this week and have added some slides referencing Matt Lauer.
One topic that we are definitely emphasizing more is that being a bystander is just not enough. We had talked about it before but I’m not sure it was emphasized as much. I use that NY Subway Ad to emphasize the point that if you See Something, You Should Say Something. What some of the cases last fall are teaching us is that people know a lot more than they say they do. People need to speak up more.
But let’s talk about consequences because I’m interested in your perspective. It seems like the going punishment for these matters is “firing or bust” but often times, these cases have far more nuance to them. Perhaps it’s the first time a complaint has been lodged. Where do you see proportionality into the discipline that employers are looking at? Are there other steps that employers can take that won’t draw the ire of a Plaintiff’s attorney but still stop the harassment from occurring?
Nina: It is so interesting that you say that because as I was writing about the “swift and appropriately severe” consequences many predators in the public eye have received, I also thought about the potential for overreaction. For example, did Al Franken really have to resign in such haste? I do not know enough about what he did to give a thoughtful response to this question but, given how quickly that situation morphed from allegations to resignation, it did cross my mind.
For those few who are guilelessly still living in the dark ages and where the conduct is limited to a few sexualized jokes or comments, as long as they have given clear signals that once they are shown the light they will mend their ways, I think there is certainly room for discipline short of termination/forced resignation. I have been part of settlements in which one of the terms was that the perpetrator must receive sexual harassment re-training as part of the conditions of his continued employment.
I rarely adhere to the “one size-fits-all” model in life. During my years as a prosecutor, I did what I could to ensure that the punishment was tailored not only to the crime but to the individual committing it. I have followed a similar approach in my work as a plaintiff’s employment lawyer. I do think, though, that in the workplace, the sexual harasser should count his lucky stars that he has been given a second chance at redemption and the employer should follow a “one more strike and you’re out” approach to any further conduct.
I am quite interested in your emphasis on the role of bystanders in the workplace. I had a case where a supervisor spoke out on behalf of his female subordinates who were being subjected to relentless and graphic sexual harassment and abuse by the head of the department. After he did so, despite the company’s no-retaliation policies, the head of the department almost ruined that supervisor’s career before I got involved. It is challenging enough for the victim to come forward. How do you make the climate as hospitable as possible for the bystander to feel inspired to stick his/her neck out?
Dan: Again, no one size fits all and I think it has to fit a company. A large company, for example, may have multiple avenues for a person to report a harassment complaint and may also have an ombudsman program as well. But smaller companies may not have that luxury. I think constant reminders about the need to report and messages coming from the management team are important. And I think the management team should lead by example. There can be no place for creating the “senior executive” exception where that person is held to a lower standard than someone else. You have to ensure consistency across the board.
But this is perhaps where we diverge a bit: The “retaliation” claim. I think (and perhaps I’m overgeneralizing here) that a few people think that by reporting a claim, that they are “protected” against anything bad happening to them. They’re right, in part: Nothing bad should happen to them BECAUSE OF the claim he or she reported.
But the employer still has to manage their performance and ensure that all employees are treated fairly. It sounds like the employer in your case may not have done so but you and I have been around long enough to know that the true facts may be more complicated than we are both first told.
Anyways, time to get back to business. We have those New Years resolutions to keep on.
Nina: Happy New Year my friend! I’ll check in to see how you are doing with those new year resolutions the next time we speak!