November 5, 2018
In November 2017, I was contacted by a woman who was sexually assaulted by her boss in the elevator at work. There was no dispute about what occurred – it had been captured on security video. This woman who I will call Jane, hired me to represent her in her sexual harassment claims against her company. In the course of my discussions with the company’s attorney it became clear that her boss would not be fired, only sent to “sensitivity training.” Just from a liability perspective this seemed incredibly irresponsible. Why would a company want to risk continuing to employ a person who has been caught on camera assaulting a co-worker? Yet this kind of thing does happen, and known predators are allowed to stay in place. The Weinstein Company is the most obvious and most glaring example, but see also NBC, CBS, Fox, etc.
In another case from last winter, a female client who worked for a major advertising firm was being forced out of her job, along with almost all the other senior-level women at the company because of the toxic and discriminatory environment. At almost every turn it seemed that this agency was determined to undermine its few female leaders. In one instance, when the company was considering hiring a particular man to a C-level position, our client and other women at the company complained to the all-male hiring team and warned that this man was a known harasser. The male executives ignored their concerns and hired the guy anyway. Within three months of hiring him, the company was forced to terminate him because he had hit the ground running harassing women.
Around this time last year, I found myself unexpectedly swept up in the sexual harassment hurricane that arose out of #MeToo. Because my legal practice focuses on both entertainment and employment law, when #MeToo exploded, I found myself representing several women in harassment cases against prominent men. Through that experience, some clear patterns emerged.
One was that so often it seemed that companies, all of course led by men, were acting against their own interests and electing to keep bad guys in power. What was also inevitable was at some point in discussions with opposing counsel, the harasser’s attorney would tell me that the man was “hurt” and “felt betrayed” by the accusations. This is when my brain would short circuit. But then I would remember that we need a law, we need to actually make it illegal for men to sexually harass women at work. In one case involving a particularly virulent and long period of abuse, after we reached a settlement, the predator’s attorney called to tell me that his client was fond of my client and was hoping he could he give her a call. Apparently, it wasn’t enough that he had terrorized her for an extensive period of time and forced her to leave her job, he needed to make himself feel better about it.
When the articles on Weinstein and others surfaced, women started coming forward in droves and I began hearing about assault and abuse on a level that shocked me. It seemed that every time the phone rang, there was a woman on the other end of the line with a story of harassment and abuse that made my head spin. It felt like the earth had cracked open and revealed layer upon layer of toxic masculinity.
As an attorney working with women who have suffered harassment and abuse, you are working with clients who are suffering a trauma, and often because of confidentiality concerns, one of the only people those clients can confide in is their attorney. As I became a confidante and co-warrior in the battles faced by my clients, I gained a new understanding of the deep wounds inflicted by workplace hostility and harassment. I thought I knew what the pain was like, but it wasn’t until this year that I started to understand the complex feelings of fear, sadness, anger, shame and guilt accompanying the experience of workplace harassment and abuse. Nor did I understand the bravery required in speaking up and fighting back.
Because most of the women we represented were complaining about rich and powerful men with strong networks comprised of other rich and powerful men, they had to deal with the very real fear of retaliation or other negative repercussions, like being blacklisted or the destruction of their careers. Exhibit A — Dr. Christine Blasey Ford, who faces all of that along with threats to her safety and that of her family. Watching Dr. Ford testify, I was reminded of so many of the women I represent. I thought of the impressive stamina and strength of a client who had to sit through a mediation for her sexual harassment case against her famous boss that began at 9 a.m. and ended at 3 a.m. the next morning. I thought of the strength it took for one of my clients to speak out against an industry titan when she knew full well the depths of his power and all the men (and sadly some women) who were lined up and ready to help him keep his power.
The trauma I witnessed was heartbreaking and revelatory and enraging. Even more infuriating was what I came to think of as the “male protection system.” As in the Catholic Church, where pedophile priests are shuffled from one church to another without any accountability or repercussions, what became apparent was that most often the harassers would retain their positions while the women, no matter how talented or skilled, would have to a) bear the burden of reporting the harassment or abuse, along with all the emotional and financial exposure that involves, and b) leave their jobs. Even if a woman is not going up against a famous man, she is typically still facing a company who can hire a team of attorneys and outspend her at every turn. It is almost always a David-and-Goliath situation.
On the more positive side, as the year progressed and famous heads began to roll, we saw shifts occurring. Almost every day has seemed to bring a new story about another powerful man facing consequences for his mistreatment of women. But as we can see with Louis C.K., it’s just a matter of minutes before these creeps crawl back out from under their rocks to see if we are willing to forgive and forget. And then there’s Brett Kavanaugh, the frat boy poster child who believes in the sanctity of beer but is utterly dismissive of a woman’s right to choose.
Still, I’m gratified by how frequently women and men want to talk about sexual harassment now. It’s a beautiful thing to talk with men who are equally horrified by the behaviors on display and who want to be part of the fight for change. I see more and more women wearing their rage proudly. It feels like at least some part of the population is finally appreciating the realities of what women have to deal with just to support themselves and their families. #MeToo empowered many women to openly complain and seek redress for harassment they had long endured just for working while female.
We are also seeing some states changing their laws to better address the realities of workplace harassment. In 2018, New York made sexual harassment training mandatory, prohibited non-disclosure provisions in settlement agreements involving sexual harassment claims, unless the complainant requests confidentiality, and extended the statute of limitations on sexual harassment claims to three years from one. California just overhauled its sexual harassment laws with a series of bills, including Senate Bill 826, which mandates that public companies based in California have at least one woman on their boards by the end of 2019. But as we have seen over and over, this movement and this moment has to be about much more than passing laws. After all, anti-discrimination laws have been on the books for decades. Without a complete revamping of our cultural mythology about both men and women in society, the laws on their own won’t get us very far. What I am hopeful about is the bravery of women like Dr. Ford and the incredible women I represent and the domino effect that women speaking out encourages more women to do so. I am hopeful about the men out there who see why our culture needs to change. I am hopeful that one day soon we can stop shouting “Me Too.”
This article was written by RPJ Partner Nicole Page. It is intended as a general discussion, not to be considered legal advice or relied upon. Ms. Page practices in employment, entertainment and intellectual property law and regularly counsels clients on matters pertaining to harassment and discrimination. Please feel free to contact her for more information.