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?