The Dialogue, a online conversation between yours truly and a prominent employee-side attorney, Nina Pirrotti, returns today with another installment — this time tackling the topic of sexual harassment in the workplace.   For prior installments, check out these posts here and here.  As for the promised redesign and relaunch of the blog, it’s nearly complete. Can’t wait to share it with you soon.    

Dan: Last time we promised to tackle a serious topic: Pizza. Given that you’re based on New Haven, surely you have thoughts on the subject. Pepe’s? Sally’s? Modern? Or something else? 

But in the meantime, I wanted to tackle a really serious topic and get your thoughts on the state of sexual harassment claims.  It feels like we’re hearing more about it of late.  It’s been about two months since Bill O’Reilly was fired from Fox News amid allegations of sexual harassment, and the news this month is of a major shakeup at Uber in light of an internal investigation looking at workplace culture.  Indeed, the Uber CEO just announcement his resignation yesterday! We won’t get statistics out from the agencies that receive harassment complaints (EEOC and CHRO), but anecdotally, it feels like we’re seeing more awareness of the issue and more questions from employers.  What are you seeing from the employee-perspective this year?

Nina: This is the bone-chilling reality and the reason why, even if I won the lottery tomorrow I would never give up my day job:  Sexual harassment continues to infect the workplace at the same alarming levels as it did in the days of Mad Men.  Indeed, the only aspects of it that have changed over the years is that now  men of power have much greater variety in the manner of delivery.  So in addition to groping, fondling and yes, even raping women in the workplace ala Don Draper and his C-Suite buddies, men of power these days are also sexting, Snapchatting  and otherwise exploiting social media to prime, intimidate and conquer their victims.  Hell, the president of the United States is even doing it!

Long before a SunTrust recruiter made headlines when he sent a nude photo of himself to a female prospective hire, exposing his genitals and inviting her to “play,” my client, a factory worker who spoke little English, endured daily groping and sexual taunts from her assembly line supervisor.  The smoking gun in that case?  A naked photo of himself that he texted her during work hours.   That case settled quickly, and despite her paltry salary, very, very well.

The main problem I encounter is, even if by some miracle such women summon the courage to come to me (the factory worker, for example, cancelled two appointments before she showed up at my office) , they often are petrified to take it to the next level.   Even when they have damning evidence, these men have such a hold on them that they fear for their jobs and even their physical safety if they come forward.   I will never forget the time I had to meet with a client at an undisclosed location far away from her workplace and my office to consult with her on a case in which the powerful, rainmaker chief of her department was subjecting her to unrelenting sexual harassment and she had the “goods” (graphic e-mails) to prove it!  She, an otherwise rational, grounded person, was convinced he would discover what she was doing and harm her.

What makes matters worse is that too often these victims’ worst fears are reinforced by employers who fail to take swift, decisive action when sexual harassment allegations are brought to light. This is far more apt to happen when the predator is a money maker for the employer.    In the case of the harassment by the department chief, for example, several other women had complained about his conduct to no avail.  Such non-response packs two punches.  First, it emboldens the predator who now  has first-hand knowledge he can act with impunity.  Second, it chills fresh victims, like my client, from taking action to protect themselves.   At some point, the hope for we plaintiffs’ employment lawyers, though, is that the lid explodes off the boiling pot.   We have seen this time and again in the media with Bill O’Reilly, Roger Ailes and the folks at Uber et al and, closer to home, that fearful employee who was sexually harassed by the “untouchable” chief ended up convincing four other employees to come forward (three of which were senior executives) and that case settled for well over $1 million even though the hospital finally terminated the chief and all five employees  kept their jobs.

I know your clients would never face such a predicament because they are getting advice from the best, Dan!  Perhaps you could share with us, though, how you counsel those employers who learn that an otherwise valuable employee is being accused of sexual harassment?

As for Pepes, Sally,Modern, Bar or others go, they are all great but I prefer making my own.  The secret is in my sauce . . .

Dan:  Well that’s a lot to respond to! But I don’t think it’s a fair argument to elevate rape (a horrific violent crime) into an analysis of sexual harassment cases in general.   No legitimate employer or their counsel is going to countenance sexual assault (much less outright sexual harassment either.)  Everyone agrees such conduct is wrong.   
Continue Reading The Dialogue: Sex Harassment in the Workplace — Still an Issue, but How Much?