Last week, I had the opportunity to again represent Connecticut as the State Delegate for the American Bar Association’s House of Delegates at the Vancouver ABA Midyear Meeting.

Among the resolutions debated was Resolution 302 which “urges all employers, and specifically all employers in the legal profession, to adopt and enforce policies and procedures that

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?
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roadIf you had a million dollars (or more) to investigate your culture, what would you find out? (Music fans may appreciate the classic “If I Had a Million Dollars” song from the Barenaked Ladies. You’re welcome.)

Well, Uber engaged a lawfirm, Covington & Burling, and the former Attorney General Eric Holder to do just that

Lucan_J_WebMy colleague Jarad Lucan returns today with an update on a post regarding the impact that recent labor law decisions are having on colleges and universities.

Two years ago, my colleagues and I reported on the case before the National Labor Relations Board (the “Board”) related to the Northwestern University’s scholarship football players seeking the

I sound like a broken record, but once again, the NLRB is striking down reasonable rules as unreasonable. 

My colleague, Gary Starr (as always, read his bio here), today shares a recent case from the NLRB that found that a “Values and Standards of Behavior Policy” of one employer — something that you might think

Earlier this week, I wrote about the perception among some that the CHRO has been retaining more cases for investigation by letting more cases through the Merit Assessment Review.  These cases that used to be dismissed — mainly “frivolous” ones as  I’ve collectively termed them — mean more headaches for employers who have to spend time and money defending against them.

(To simplify the blog post for readers, I labelled all these cases that had been dismissed at MAR together as “frivolous” even though there are technically different reasons why the CHRO may dismiss a case on Merit Assessment Review, including that there is “no reasonable possibility” that an investigation will lead to a reasonable cause finding of discrimination. )

In response to my blog post, CHRO Principal Attorney Charles Krich crafted a reply. While it is attached to the original blog post, I thought it notable enough that it warranted its own blog post.   While he indicated that there were no statistics yet available, he “would not be surprised if fewer cases are being dismissed for no reasonable possibility” under the Merit Assessment Review.

Here’s his reply in full (my further comments are below):
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