By Sharon Stern Gerstman, President
During the month of October,
dozens of Facebook posts
appeared in my newsfeed with #MeToo in the header. The first few of these included the “instructions” that if you had ever been the victim of sexual harassment to post #MeToo and to cut and paste the instructions. Since cutting and pasting is not easy on my iPhone, I did what many
others did: I just posted #MeToo.
After a while, everyone knew what the message meant.
My Facebook “friends” are a wide variety of those with whom I have crossed paths. Some are lawyers, some knitters, some tennis players, some bridge players, and some old high school friends. Some of my male friends were surprised at how many of us had
posted. I was not surprised. While we come from all walks of life, we posters all had something in common: We all had worked within a male-dominated industry at some point in our lives.
Ask any woman lawyer, journalist, actress, politician, etc. if she has been sexually harassed at any time, and the answer almost certainly will be “yes.” We might not be willing to give you the particulars, but it has happened to almost all of us. It
may have been many years ago, when we were younger and more vulnerable (and some would say
more attractive). We probably did not
report it or even talk about it then, but
we are talking about it now.
For me, it was a fairly large number of mostly inappropriate remarks and touching. One such remark came from a supervisor who told me that I could find the reference books at “bazoom” level. Another came from a supervi- sor who pointed out a co-worker
and me (both pregnant) to a room full of people with the remark, “Look what I did.” One judge hugged me inappro- priately and asked me, “Does Danny know how lucky he is?” I don’t think a single one of these men thought he was guilty of sexual harassment.
After all, any of these behaviors alone probably does not rise to the legal definition of “Quid Pro Quo” or “Hostile Environment,” as set out in New York’s Executive Law §§ 290 et seq. But they are uncomfortable and demeaning and have obviously
stayed with me.
There have been very public accusations which have resulted in public firings and shamings: Harvey Weinstein, Bill O’Reilly, Roy Price, Bill Cosby, Mark Halperin, to name a few. None of these was a surprise to others in their industries. As Tom Hanks
said in an interview, “There has always been the concept of the casting couch.”1 We are hearing reports of very large settlements in some of these cases. One can only guess what Bill O’Reilly did to Lis Wiehl to cause a $32 million settlement.
Non-disclosure has always been at the heart of why this persists. Corporations close ranks and make it unbearable for the women who report the problems. It took incredible fortitude for the women of the Eveleth Taconite Company in Minnesota to
bring the first sexual harassment class-action lawsuit in the United States in 1988. The movie North Country, based upon the lawsuit, gives a fair account of what women who report harassment are likely to face. Even after the corporation was found
liable and the case referred to a referee for damages, the women’s travail was not over. The Special Master called them “histrionic” and published details about their private lives in his 416-page report; the average award was $10,000. After the Eighth
Circuit reversed the judgment, the case settled and the 15 awardees received $3.5 million.
For decades, law professors Joanna Grossman of Southern Methodist University and Deborah Rhode of Stanford have been advocating for changes to the law and the workplace to address the problem of sexual harassment.
Women who are considering making a formal complaint should be realistic about the financial, psychological, and reputational cost of pursuing it. Defendants typically have deeper pockets than victims, and the price of hiring a lawyer is often prohibitive. To be sure, attorneys specializing in harassment cases are often willing to work on a contingent fee....But unless damages and the likelihood of recovery are
substantial, few lawyers will want to take the case. Employment discrimination cases have the lowest win rate for plaintiffs of any civil cause of action. And in sexual harassment cases it is the complainant as much as the harasser who is on trial.2
Now, they have published in Harvard Business Review3 a primer for victims to follow. The primer covers what the victim can hope to achieve, keeping a diary, telling friends and family, how to report to the employer, the pros and cons of hiring
a lawyer, and the considerations of going public. Still, the authors recognize that the law often does not provide remedies and that most victims will not seek redress:
They wait to see whether the
behavior will stop on its own, or
they keep silent because they fear
that reporting will be futile or that
the harasser will retaliate. Rather
than filing internal or external
complaints, harassment targets
tend to resort to informal and nonconfrontational
vent, cope, laugh it off, treat it as
some kind of less threatening misunderstanding,
or simply try to get
on with their jobs (and lives). They
may blame themselves, pretend it
is not happening, or fall into self-destructive
behaviors like eating
disorders or drinking problems.4
We all know what Anita Hill endured at the hands of an all-male Senate judiciary committee, who asked her why she hadn’t spoken up before and why she endured Clarence Thomas’s behavior. In her words, “They were exhibiting the exact kind of behavior
that keeps people from coming forward.”5 While many belittled or chose not to believe the harassment
her testimony awakened many to the truth about sexual harassment and its pervasiveness.
As Anita Hill’s experience reminds
us, law offices are not immune from
the pervasiveness of sexual harassment6
or other forms of gender-based
discrimination. There has been an
increase of lawsuits against law firms,
large and small, by attorneys who
recognize the need to stand up for
women’s access to positions of power.
The Report of the Commercial and
Federal Litigation Section, which was
adopted by the House of Delegates on
November 4, 2017, reflects both the sad
statistics of how women attorneys are
left behind when it comes to arguing
or trying a case in court and the hope
that a concerted effort by judges and
law firms can ensure that women have
a front and center position in litigation.
Two things are clear: (1) The truth
of a corrected version of Donald
Trump’s famous “Access Hollywood”
statement: “When you’re a star [or the
employer], they [feel powerless to do
anything but] let you do it. You can do
anything.” (2) There is strength when
large numbers of women are willing
to come forward, and the possibility of change.
1. PBS News Hour, October 23, 2017.
2. Grossman and Rhodes,
Understanding Your Legal Options if You’ve Been Sexually
Harassed, Harvard Business Review, June 22, 2017.
5. NPR “All Things Considered,” October 27, 2017.
6. The American Lawyer, Sexual Harassment Is Thriving in Big Law, July 11, 2017