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Fighting Sexual Harassment and Assault in Court, in Negotiations and in the Media in the #Metoo Era

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Fighting Sexual Harassment and Assault in Court, in Negotiations and in the Media in the #Metoo Era FEATURE CLE: FIGHTING SEXUAL HARASSMENT AND ASSAULT IN COURT, IN NEGOTIATIONS AND IN THE MEDIA IN THE #METOO ERA CLE Credit: 1.0 Friday, June 15, 2018 1:40 p.m. - 2:40 p.m. Heritage East and Center Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i How the Legal System Fails Victims of Sexual Harassment ............................................ 1 #MeToo in the Law Firm – Lessons for Lawyers from the Post-Weinstein Reckoning .............................................................................................. 7 THE PRESENTER Lisa Bloom The Bloom Firm 20700 Ventura Boulevard, Suite 301 Woodland Hills, California 91364 LISA BLOOM founded and owns one of the largest and fastest growing civil rights law firms in the United States, The Bloom Firm, representing celebrity clients like Blac Chyna, and Mischa Barton, but mainly ordinary people seeking justice in all areas of civil litigation and family law, and especially victims of domestic violence, sexual harassment, race or sex discrimination, sexual assault, and police excessive force. Ms. Bloom has been chosen by her peers as a SuperLawyer for five years straight and has a perfect 10.0 rating on the largest lawyer rating site, Avvo.com. The Hollywood Reporter recently named her a top Hollywood "power lawyer" and she has appeared on countless ten best lists. She has been litigating a defamation case on behalf of Janice Dickinson against Bill Cosby for three years. In 2017 she executed the media and legal strategy that brought down accused sexual harasser Bill O'Reilly. In 2018 she represents sexual harassment and assault accusers of casino magnate Steve Wynn, singer Trey Songz, Guess founder Paul Marciano, Lynwood Mayor Pro Tem Edwin Hernandez, and many others. She is litigating a revenge porn case against Robert Kardashian and an entertainment law case against the Kardashian family, as well as a case against a prominent LA doctor for underpaying his housekeeper. Ms. Bloom graduated from Yale Law School, and is the New York Times bestselling author of three books. Her most recent book, SUSPICION NATION: The Inside Story of the Trayvon Martin Injustice and Why We Continue to Repeat It documents the racial bias that caused the acquittal of George Zimmerman. i ii HOW THE LEGAL SYSTEM FAILS VICTIMS OF SEXUAL HARRASSMENT Alexia Fernández Campbell Reprinted from https://www.vox.com/policy-and-politics/2017/12/24/16807950/legal-system-sexual-harassment In recent months, women have been accusing men of sexual harassment in the press, rather than the courts. And here's why: The legal system that's supposed to investigate, address, and prevent sexual harassment has failed them for decades. That's the conclusion from a review of more than 1,000 job discrimination cases by two law professors: Sandra Sperino at the University of Cincinnati, and Suja Thomas at the University of Illinois. Sperino and Thomas set out to understand how judges view discrimination cases. Their results are summarized in their new book, Unequal: How American Courts Undermine Discrimination Law. Sexual harassment is illegal in all workplaces and in every state. It's a form of gender discrimination prohibited by the Civil Rights Act of 1964, and it's illegal whether the alleged perpetrator is a person's co-worker or supervisor. But Sperino and Thomas argue that federal court judges frequently dismiss sexual harassment cases that likely meet the requirements under the law. In the past 40 years, they say federal judges across the country (who are mostly men) have developed an extremely narrow interpretation of what sexual harassment is under the law, and which behaviors create a hostile work environment. Repeated groping, sexual propositions, and sexualized comments at work usually don't meet that high standard. "It's shocking," said Sperino. "You read about women being groped or rubbed against a lot at work, and judges don't think that creates a hostile work environment." The federal courts have repeatedly dismissed women's well-documented claims of sexual harassment at work – the same kinds of alleged actions that have surfaced in media reports in recent weeks. That helps explain why less than 2 percent of job discrimination lawsuits – a category that includes sexual harassment – make it to a jury, and why only about 4 percent end up awarding damages to victims. Many claims never make it to court. The roadblocks to getting justice start with an unusually complicated and strict process to file a complaint against an employer in the first place. Employees who think their employer has discriminated against them – including through sexual harassment, which is legally considered sex-based discrimination – have to start by filing a complaint with the U.S. Equal Employment Opportunity Commission, which enforces federal civil rights laws. Requiring people to go through an administrative agency before filing a lawsuit is highly unusual. In most civil cases, including personal injury or negligence claims, anyone can file a lawsuit in court at any time. Congress also placed a strict time frame on when employees can file job discrimination complaints with the EEOC: no later than 300 days after the alleged discrimination happened. Then the agency has six months to review the 1 case before an employee can sue in court. Once the EEOC gives an employee a Right to Sue notice, they have three months to file a lawsuit. During the EEOC's review of the case, the commission investigates and tries to resolve the dispute through mediation. About half the time, investigators are unable to determine if an employer engaged in sexual harassment, and the EEOC notifies workers that they can sue their employer in court. Sometimes the complaints are settled during this process, and sometimes the EEOC will sue the employer in the most serious cases. In 2016, for example, the EEOC received 6,758 sexual harassment claims, and resolved 23 percent of the cases in favor of employees, adding up to $40 million in relief for workers. In 54 percent of their investigations, EEOC staff was unable to gather enough evidence to determine if harassment occurred. In those cases, employees are given permission to sue in court. The details of these cases are never made public, unless an employee decides to sue in federal court. On top of that, a growing number of companies are requiring employees to sign arbitration agreements, which essentially bars workers from suing their employers and instead forces them to resolve disputes privately. So even when the EEOC gives a worker permission to sue, there's a good chance they can't because of these agreements. Those who can sue face a slim chance of any success in federal court. When victims take their cases to court, the odds are against them. Even if a case gets to court – meaning that the employee went through the six-month EEOC review process and chooses to sue their employer – federal judges dismiss job discrimination claims at a much higher rate than other civil lawsuits. Only about four out of 100 job discrimination lawsuits that aren't settled or voluntarily dismissed end up providing any kind of relief for workers, according to Katie Eyer, a law professor at Rutgers. This is highly unusual in the world of federal litigation, "exceeding the negative outcomes faced by other litigants in both scope and degree," she wrote in a 2011 Minnesota Law Review journal article. In other words, the odds are stacked against victims of discrimination more than victims of medical malpractice or consumer fraud, for example. The high dismissal rates aren't for lack of evidence. When deciding whether to dismiss a case through summary judgment, a judge needs to determine if a reasonable person would consider the alleged actions to be a violation of the law. More often than not, judges don't think the behavior is bad enough or persistent enough to be illegal. Through their repeated dismissals, federal judges have narrowed the definition of illegal sexual harassment so much that a woman (or man) would basically have to accuse her boss of rape to present a clear-cut case of illegal sexual harassment. Federal judges developed a high bar for illegal harassment. The high courts have defined two forms of sexual harassment that are illegal at work. In both, the behavior must be unwelcome to be against the law. The first is called quid pro quo harassment. In these scenarios, a person in a position of power demands that a subordinate tolerate harassment (like groping and sexual requests) to keep his or her job, or to get a salary raise or other job benefits. These are the most obvious cases and the easiest to prove. It only has to happen once to be illegal. The second form of illegal 2 harassment is more subjective. It's behavior that is "severe or pervasive" enough to create a hostile work environment for the victim.
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