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Taking Legal Action After Sexual Harassment: An Attorney Explains the Process

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Ever since last week, when reports of Harvey Weinstein's sexual harassment history began to emerge, attorney Nina Frank has seen an uptick in clients.

Though for Frank, who handles employee-based harassment cases at the New York-based Outten and Golden law firm, the dramatic shift first began last year.

"To be honest, the election of Donald Trump really brought people in," Frank tells Levo. "On the one hand, it made people feel dejected that we elected somebody who’s bragged about sexually assaulting people. But on the other hand, it made people less inclined to sit back and do nothing."

Now, with the spate of harassment accounts in tech and entertainment, women in all industries are taking note — and taking action.

"The more we talk about this stuff, the better," says Frank. "Because more people will realize that there are things they can do, even if they are not sure if they want to pursue a case.

"Speaking about it and just hearing your options is a good idea, because you can protect yourself. You can make sure you’re doing everything in your power to preserve a possible claim or set yourself up so if you are retaliated against, you’ll have some evidence to back you up."

That common, incredulous retaliation we're hearing again this week—“Well, why didn’t these women come forward sooner?”—suggests there are still some public misconceptions about sexual harassment and the victims who endure it. Here, Frank paints a more thorough picture of what sexual harassment cases really look like and debunks some of the myths.

What's the legal difference between the claims against Weinstein and some other recent sexual harassment cases?

There are two different kinds of sexual harassment under the law.

One is hostile work environment sexual harassment: that could be commentary, groping, or inappropriate jokes. It can cover a whole gamut, but it’s really sexually inappropriate subject matter making it really uncomfortable and intolerable to be in the workplace. It doesn’t have to be directed at a specific person. It can just be in general, like talking about sexually explicit things. So that’s the first category.

The second is quid pro quo sexual harassment, and that’s what we’ve been seeing with the whole Harvey Weinstein scandal, which is actually a perfect example of quid pro quo: A supervisor says, “if you submit to my sexual advances, I will make sure your career goes forward. I will give you a promotion. I will not demote you. I will save your job. I will make sure this project goes forward. I will cast you in my next movie. If you don’t, I will fire you. You will never get a job in this town, etc.”

Those are the two categories the law recognizes, but they can sometimes overlap. It’s also important to know that depending on where you work, there might be different applicable laws. For example, the New York City Human Rights Law has a more relaxed standard of what constitutes hostile work environment sexual harassment than federal law.

At what point do clients usually come to see you?

People come to us at all different stages of the process. Sometimes they come to us while they’re still working for their employer, and this conduct has usually been going on for a long time. It’s rare that we get someone who comes in right after the first instance of sexual harassment. And I think that’s really common and understandable. Because the first time it happens, you don’t want to think that that’s what’s really going on. You’d rather not have that be the reality of your job.

And especially for women, nobody wants to have to deal with this, because as we see time and time again, nobody believes women when they come forward with sexual harassment allegations.

Is that part of why it's challenging for women to come forward?

The first thing they hear when they tell someone else is, “Well, if it’s really that bad, then why didn’t you tell him to stop?” Or, “I can’t believe he’d do something so audacious and terrible. I can’t imagine him doing that.” And then there’s “He never did that to me, so of course, he couldn’t have done it to anyone else.”

So just dealing with the fact that this horrible thing happened to you, and you know that you’re probably not going to be believed, is enough to make a lot of people — especially women — pause before they seek help.

With all of this Harvey Weinstein stuff, there’s so much focus on the women. "Why aren’t women coming forward? Why aren’t women speaking up?" And I think that’s so ridiculous. Women have been speaking up, and they have been coming forward. It’s just now that men are starting to listen.

I think we really need to ask, where are the men? Why do men still feel like it’s okay to engage in these behaviors? Or witness them and be silent?

Can you talk a little bit about the challenges people face at work with reporting?

People always ask, “Why didn’t they report?” Well, in many companies, there is no one to report to. A lot of times the sexual harasser is the owner, or even sometimes the sole proprietor. Like with the Harvey Weinstein example: who are you going to complain to? You’re going to complain to HR about the guy whose name is on the masthead? It’s difficult.

Even when there is an HR or employee relations department, their general job is to minimize risk for the employer. The job of HR is not necessarily to protect employees, or necessarily to make sure no one gets sexually harassed. Their job is to minimize risk. So their priorities are not always in line with the victim of sexual harassment. Sometimes it’s in HR’s best interest to play things down, or to amplify the fact that this is a he said/she said situation. Sort of like, “well, we can’t really be sure of what happened.”

Right. It’s something that often happens behind closed doors.

That’s the nature of a lot of sexual harassment: it’s a he said/she said situation. It’s rare that you get a sexual harasser who will do it in front of a lot of witnesses. Usually, you’re alone when it happens.

Then you feel bad you were alone. You question yourself. You question: did it really happen that way? And that gets exacerbated when you go to someone and they say, “did it really happen that way?”

There’s a lot of assumptions that accusers are just looking for money. What do your clients really want when they come to you?

Most people who come to us and are still in their jobs just want the bad situation to end. They would love to have their harassing boss just be fired. But it’s close to impossible to get that to happen, legally. Even if you were to file a lawsuit and win on your sexual harassment claim, the employer still may not fire anyone.

It’s not really a remedy you can ask for unless you bring a class action claim for what’s called injunctive relief — for the court to provide some non-monetary relief for an entire class of people. Courts will award money damages, but they don’t want to get involved in who gets fired and who doesn’t. So a lot of people come in wanting that to happen and we usually have to explain that that’s not probable.

Other times we’ll be retained to help people secure a different position out from under the harassing boss. But that’s also difficult. Especially because these are people in their chosen careers and they don’t want to have to move their entire careers just to get away from this harasser.

What’s really difficult — but quite common — is when women come to us after they’ve quit, and they’ll say “it was an intolerable work environment for me. I had to quit. I couldn’t go in there one more day.” And I believe them. But the hard thing is that the legal standard for constructive discharge — which basically is the argument that “they forced me to quit” — the legal standard is very high. So you have to prove that a reasonable person would also have quit under these circumstances. So basically, the bar is just higher for women who have already quit. But I completely understand: a lot of people don’t feel like they should have to endure sexual harassment every day, which is fair.

What about people who are fired?

We also get people coming to us after they’ve been fired. They have been sexually harassed and they went to HR or another boss, or they told the harasser directly, “stop harassing me.” And then they were promptly terminated or demoted, or given an inferior position, or transferred to an inferior office, or denied a promotion. That’s called an adverse employment action. And it’s incredibly common. I know in the Harvey Weinstein story, multiple actresses said they didn’t get parts or callbacks after they rejected his advances.

Sexual harassment by itself can sometimes be very hard to prove. As I said before, a lot of times it is a he said/she said situation. So it’s a credibility issue. It’s hard to prove the harassment actually occurred. But with retaliation, which is a separate legal claim, an adverse employment action by the employer is comparably easy to prove.

If someone comes to us and they’ve been terminated after complaining about sexual harassment, that’s an adverse employment action. So in a lot of ways, retaliation claims can be easier to bring than sexual harassment claims, and these claims can be brought in tandem.

Walk us through what happens when someone comes to you to file a suit.

It’s a big undertaking that involves a lot of collaboration with the client. It’s hard for individuals to bring lawsuits against companies, and I think the process is designed to make it difficult. We guide people through the process to make a difficult situation as easy as possible.

An important part of our role is being good listeners. A lot of times, these clients just haven’t been listened to, or they’ve been listened to and not believed. These experiences can be really traumatic.

Many people who come to us feel powerless because a powerful person has harassed them. So we try to give our clients the power to be making their own decisions about where they want to go. We give them all the information they need to make their own decision. But we ultimately support that decision.

What impact can these cases have?

People need to remember that if your claim is strong enough, you can certainly prevail. And especially with court cases, a lot of good can be done from a major victory. A lot of people will see it and come forward. But even if you aren’t interested in filing a claim, there may be other options available to you to be able to move forward.

The vast majority of people I’ve worked with are so glad they pursued it and didn’t just let it go. Because it was something that was eating at them for a long time, and they weren’t able to move on until they felt like they got some justice from it. And whether that justice comes from a court ruling or a settlement agreement — whatever it looks like for them — it made them feel less powerless.

Also, I think the prospect of having to pay money damages actually does change employers’ behavior. I think that sometimes it’s the only thing that changes employers’ behavior.

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(Image via Unsplash)

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