When Does a Sexual Advance Amount to Sexual Harassment? An Attorney Explains

When Does a Sexual Advance Amount to Sexual Harassment? An Attorney Explains

By: Ann Fromholz
This article was originally published on October 16, 2017 in The Hollywood Reporter

In the Harvey Weinstein situation, an actor or crew member working on a film that he produced, or any person working at The Weinstein Co., would be an employee under the law.

The old trope of the casting couch has never really died. In recent days, it has been renewed and recast by the news about Harvey Weinstein’s alleged sexual harassment and sexual assault of a growing list of women in hotel rooms and offices across the country. It has become apparent there is no clear understanding of where the line is between harassment and a consensual relationship when something happens between a boss and employee.

The laws against sexual harassment — Title VII in federal law, the Fair Employment and Housing Act in California and the New York Human Rights Law, among others — apply to the employment context. In the Weinstein situation, an actor or crewmember working on a film that he produced, or any person working at The Weinstein Co., would be an employee under the law. But the law also applies to applicants, and women who agreed to meet with him because they hoped that he would cast them for a film likely would be covered by the laws against harassment.

The laws against sexual harassment do not prohibit all sexual conduct in the workplace. If an affair or sexual relationship truly is consensual, it can be legal. But the fact that sexual conduct was voluntary, in that the victim was not forced against her will to participate in the sexual activity, does not make the conduct consensual and legal. The central question of any sexual harassment claim is whether the sexual advances were unwelcome.

When a supervisor dates a subordinate, it is difficult to show that the advances were welcome and the relationship was consensual because of the differential in power. When people have differing levels of power, a sexual advance may feel compulsory. When a supervisor, for example, asks a subordinate employee for sexual favors, that employee could very well believe that their continued employment depends on whether they agree to the sex. The coercive nature of supervisor/employee relationships brings up a serious question of whether sexual relationships between the two parties are truly consensual.

Courts have recognized two kinds of sexual harassment. The first is “quid quo pro” — or “this for that” — harassment, where the person in the position of power promises a job benefit — a role, a job promotion, a compensation increase — if the victim submits to his sexual advances. Quid pro quo harassment also exists where the person in the position of power makes a threat of termination, blacklisting or job loss if the victim refuses the sexual advances. This is the behavior that some women allege that Weinstein engaged in. It often is easy to identify as inappropriate and unlawful.

The second kind of harassment is “hostile work environment” harassment, in which sexual conduct is so severe or pervasive that it creates an abusive working environment. This behavior sometimes is more difficult to identify as unlawful. The Supreme Court recognized this kind of harassment for the first time in 1986, in a case called Meritor Savings Bank v. Vinson. In that case, Mechelle Vinson claimed that Sidney Taylor, the vice president of the bank, coerced her to have sexual relations with him and made demands for sexual favors while at work. Vinson said that she had sexual intercourse with Taylor 40 or 50 times.

The court in Vinson decided that Taylor’s conduct amounted to hostile environment harassment. Even though Vinson and Taylor had sex multiple times and the sex was voluntary, in the sense that Taylor did not force Vinson to have sex with him, the advances and thus the sex were not welcome. The important lesson for people evaluating a situation they are in or know about is that, even if a subordinate employee has sex with her boss one time or many times, the relationship may nonetheless amount to unlawful harassment. The question is whether the advances were welcome and whether the victim by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

Sexual harassment that creates a hostile or offensive environment is a barrier to gender equality in the workplace. The requirement that a person run a gauntlet of sexual abuse in return for the privilege of being allowed to work is demeaning and troubling. If the unwelcome conduct is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, it is unlawful.

If the Harvey Weinstein situation teaches us anything, perhaps it will teach us that sexual conduct and sexual advances, if they are not clearly welcome, are inappropriate and probably illegal. It is up to all of us to make sure that this conduct stops and to change the culture that allowed it to fester.

Rose McGowan implores Jeff Bezos to ‘stop funding rapists.’ Meanwhile, Amazon suspends studio head amid harassment claim

Rose McGowan implores Jeff Bezos to ‘stop funding rapists.’ Meanwhile, Amazon suspends studio head amid harassment claim

By: Meg James & Gus Garcia-Roberts
Los Angeles Times
October 12, 2017

The scandal enveloping Hollywood grew wider Thursday when actress Rose McGowan accused movie producer Harvey Weinstein of raping her, and then pleaded with one of America’s most powerful business titans — Amazon.com founder Jeff Bezos — to end his company’s alleged involvement in a culture of exploitation and abuse.

“@jeffbezos I am calling on you to stop funding rapists, alleged pedo[philes] and sexual harassers,” McGowan said in a Twitter message directed to the Amazon billionaire.

“I love @amazon but there is rot in Hollywood,” McGowan wrote, just hours after Twitter lifted a 12-hour suspension that temporarily blocked the actress from posting.

In a separate development on Thursday, Amazon suspended Roy Price, the head of its studios, after “The Man in the High Castle” producer Isa Hackett told the Hollywood Reporter that he had repeatedly propositioned her and made lewd comments.

“Roy Price is on leave of absence effective immediately,” an Amazon spokesperson said. “We are reviewing our options for the projects we have with The Weinstein Co.”

McGowan is one of a number of Hollywood stars, including Gwyneth Paltrow, Angelina Jolie and Ashley Judd, who have said they were victimized by Weinstein. Last week, the New York Times reported that McGowan reached a $100,000 settlement with Weinstein in 1997 after an incident at the Sundance Film Festival. As part of the settlement, McGowan was not supposed to discuss the incident but she has become increasingly vocal as more women have announced that they also were victims of the co-founder of Miramax and Weinstein Co.

“We are just seeing the tip of the iceberg,” said Caroline Heldman, a college professor who has worked with sexual assault victims. “This is going to touch every major studio in Hollywood.”

McGowan, 44, previously has suggested on Twitter that she had been victimized and has used the social media platform to call out men, including Weinstein’s brother, Bob Weinstein, and actors Ben Affleck, his brother Casey Affleck, and Matt Damon for enabling the misconduct.

Harvey Weinstein gave Ben Affleck and Damon their big break, acquiring their breakout movie “Good Will Hunting,” which won the Oscar in 1998 for best original screenplay.

McGowan is best known for starring in the now-defunct WB network hit “Charmed,” but also appeared in Wes Craven’s 1996 slasher “Scream” — distributed by Dimension Films, the film label owned by the Weinstein Co.

In 1998 she starred opposite Ben Affleck in the horror film “Phantoms,” produced by Dimension and distributed by Miramax. She played dual roles in 2007’s “Grindhouse,” starring in both of the film’s two segments for Quentin Tarantino (“Death Proof”) and Robert Rodriguez (“Planet Terror”). The film was also distributed by Dimension.

Last year, using the hashtag #WhyWomenDontReport, she vented on Twitter, saying: “My ex sold our movie to my rapist for distribution.” She did not spell out who she meant as her “rapist,” but some Hollywood insiders speculated that it was Weinstein.

Weinstein’s spokesperson, Sallie Hofmeister, said in a statement: “Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein.”

Then, last September at an IFP Film Week event in New York, McGowan announced that she had sold a show she had written to Amazon Studios. Some speculated that the project may have been inspired by McGowan’s own childhood spent in the Children of God cult, which she fled with her family at the age of 9 after her father feared she might be subjected to child sexual abuse by cult members.

But a formal announcement from Amazon never materialized. On Thursday, McGowan shed more light on the project, tweeting: “I called my attorney & said I want to get my script back, but before I could #2 @amazonstudios called to say my show was dead.”

Her Twitter barrage included her — now very public claim — that Weinstein had raped her.

“@jeffbezos I told the head of your studio that HW raped me. Over & Over I said it. He said it hadn’t been proven. I said I was the proof,” she wrote.

“@jeffbezos I forcefully begged studio head to do the right thing. I was ignored. Deal was done. Amazon won a dirty Oscar,” she wrote, an apparent reference to Amazon’s movie, “Manchester by the Sea,” and its star Casey Affleck, who was accused of sexually assaulting a woman. Casey Affleck has denied the allegation.

Heldman, the women’s advocate, praised McGowan’s courage.

“Once again, Rose has been taking a lead in taking this to the next level — and holding to account other powerful men who have been complicit in covering up sexual violence,” Heldman said.

McGowan’s new accusations add another dimension to the controversy because it suggests that she took her allegations to other powerful players in Hollywood.

Ann Fromholz, a Pasadena attorney who has handled sexual harassment cases, said she believes McGowan’s latest salvo is part of a growing storm that will make it easier for sexual harassment victims in Hollywood and other industries to speak out.

“I expect that because of the publicity this is getting, because of the support the victims are getting, people likely will be more willing to complain when something like this happens in the future, with Weinstein or anybody else,” Fromholz said.

In addition to McGowan’s challenge to Bezos, Amazon is also facing other allegations.

Hackett, a producer for “The Man in the High Castle,” told the Hollywood Reporter that Price repeatedly propositioned her. She reported the incident to Amazon executives, who hired an outside investigator to look into her allegations.

Hackett’s legal representative, Christopher Tricarico, on Thursday confirmed that the statements attributed to Hackett in the Hollywood Reporter were accurate.

However, Hackett, he said, did not wish to comment further.

Tricarico said Hackett participated in the internal investigation at Amazon Studios but was never told if it was concluded or how it was resolved. She followed up with Amazon’s Human Resources department, but was told the findings were confidential, the attorney said.

“It was basically the company line, that they were doing what they needed to do internally but were not at liberty to give any details,” Tricarico said.

Amazon said in a statement to the Hollywood Reporter that they “looked closely at this specific concern and addressed it directly with those involved.”

Harvey Weinstein Scandal Spurs Lawmakers To Go After Nondisclosure Agreements

Harvey Weinstein Scandal Spurs Lawmakers To Go After Nondisclosure Agreements

By: Claudia Koerner
BuzzFeed News Reporter
October 12, 2017

A pair of New York lawmakers are aiming to end the sort of confidentiality agreements that shield workplace sexual harassment and that have been cited in the ongoing Harvey Weinstein scandal.

The new language to an existing bill, to be introduced on Friday, would void any contract provision where an employer can force an employee to keep quiet about sexual harassment and discrimination claims. It would include claims that are settled in arbitration, where nondisclosure agreements routinely keep the details of allegations secret.

State Sen. Brad Hoylman, who is cosponsoring the bill with Assemblywoman Nily Rozic, said the legislation was rewritten after sexual assault and harassment allegations against Harvey Weinstein were published by the New York Times and the New Yorker. Several people contacted in those stories said they were prevented from speaking out because of nondisclosure agreements.

“As we’ve seen in the Weinstein matter, these types of settlement agreements perpetuate harassment of other people for decades,” said Hoylman, a Manhattan Democrat who counts Weinstein among his constituents.

Hoylman added that because of the secrecy surrounding confidentiality agreements, no one knows how extensive they are.

“Employees who are in a position of very little agency, power, are being forced, it would appear, to sign away their rights,” he said.

The bill amends the state’s labor law and only applies to formal employment contracts or agreements. The allegations against Weinstein run that gamut, with misconduct or retaliation reportedly experienced by assistants and other employees. Other claims have come from young actors who Weinstein allegedly asked to private meetings to discuss potential roles — outside any employment that could be regulated by state law.

But Rozic, a Democrat, said the recent attention to sexual misconduct allegations against famous figures like Weinstein has made people more open to talking about sexual misconduct.

“There are men in every industry in positions of power who use that against ambitious women who are starting out in their careers,” she said.

And though the issue is a longstanding and multifaceted one, she said the new legislation aims to chip away at the workplace norms that leave employees at a disadvantage.

“It focuses on not just the physical power, but the economic power someone can hold over you,” she said.

The legislation is the first in the country to go so far and would completely change the landscape of sexual harassment settlements, said Ann Fromholz, who practices employment law and does workplace investigations for the Fromholz Firm. California last year similarly banned confidentiality agreements in cases of workplace harassment, but only where a potential felony was involved.

Currently, settlements allow employers to take back payouts in part or in full from employees who break confidentiality agreements.

The new bill “is ensuring the light can still be shone on bad behavior, even if the company pays money to avoid the risk of litigation,” she said.

The dollar amount of settlements may still remain secret under the bill, but employees would be allowed to talk about their experiences.

“In the end that benefits companies, because if people talking and complaining stops sexual harassment — and makes the workplace safer — that’s better for everyone,” Fromholz said.

The legal fallout from the mushrooming Weinstein sex scandal could be big

The legal fallout from the mushrooming Weinstein sex scandal could be big

By: Daniel Miller, Ryan Faughnder & David Ng
Los Angeles Times
October 10, 2017

The mounting sexual assault and harassment claims against disgraced Hollywood mogul Harvey Weinstein could have severe legal consequences for the executive and his already struggling namesake company.

Although it may be difficult to build a criminal case against Weinstein, his alleged mistreatment of women could expose him and his film and TV company to costly civil lawsuits, according to attorneys and professors specializing in sexual misconduct.

“The potential liability is significant,” said Ann Fromholz, a Pasadena attorney who has handled sexual harassment cases.

Under California law, Weinstein Co. could be liable for Weinstein’s alleged actions, according to Doug Silverstein, an attorney specializing in employment and discrimination. “They are on the hook just like him,” he said.

Whether an alleged victim could bring a lawsuit against Weinstein, 65, would hinge, in part, on the applicable statute of limitations. In California, the statute of limitations for civil sexual assault is two years and in New York it is three years; Weinstein has been accused of misconduct in both states.

“I expect a flood of lawsuits to be headed his way if they are timely and he hasn’t already bought off the victims,” said Laurie Levenson, a professor at Loyola Law School.

Weinstein Co., based in New York, fired the executive over the weekend after an investigation by the New York Times said he’d reached at least eight legal settlements, dating to 1990, with women over alleged harassment. On Tuesday, the New Yorker published a story that included, among other allegations, claims that Weinstein had raped three women in the last 20 years. Among them was actress Asia Argento, who appeared in “B. Monkey,” a 1999 drama distributed by Miramax, then headed by Weinstein.

Weinstein, who previously apologized for some of his behavior, denied the rape claims. “Any allegations of non-consensual sex are unequivocally denied by Mr. Weinstein,” a representative said in a statement, adding that “Weinstein believes that all of these relationships were consensual.”

In a statement Tuesday night, Weinstein Co.’s board of directors said they were “shocked and dismayed” by the latest allegations and that they are “committed to assisting with our full energies in all criminal or other investigations of these alleged acts.”

Legal experts said that Weinstein could face criminal liability over his alleged behavior. In New York, there is no statute of limitations for criminal sexual assault — the result of a 2005 law that did away with a prior timing restriction. Any alleged act that occurred after that year can be prosecuted in the state.

In California, a previous 10-year criminal statute of limitations for rape and other sexual misconduct was removed last year after Gov. Jerry Brown signed legislation amending the penal code. The new law went into effect Jan. 1 and affects certain sex crimes that have occurred in 2017 or will transpire in the future. It also applies to alleged offenses for which the prior statute of limitations had not expired by Jan. 1.

But bringing a criminal case against Weinstein, known for producing Oscar-winning films such as “Shakespeare in Love,” would be more difficult than a civil action, experts said, in part because alleged victims may have signed affidavits repudiating their allegations. In one 2015 matter, fashion model Ambra Battilana Gutierrez told police in New York that Weinstein had groped her, but the Manhattan district attorney decided against charging the executive. Gutierrez reached a settlement with Weinstein, according to reports.

“If we could have prosecuted Harvey Weinstein … we would have,” a spokesperson for Manhattan Dist. Atty. Cyrus R. Vance Jr. said in a statement. “Mr. Weinstein’s pattern of mistreating women, as recounted in recent reports, is disgraceful and shocks the conscience.”

Levenson cited Bill Cosby — one of several entertainment and media personalities recently accused of sexual assault — to illustrate the difficulty in prosecuting high-profile figures for alleged acts committed years ago. Dozens of women have accused Cosby of rape, sexual battery and other misconduct, and many of the entertainer’s alleged victims have sued him. However, only one criminal case over alleged sexual assault has been brought against Cosby, and the Pennsylvania trial, which focused on an alleged 2004 incident, ended in a hung jury in June. Cosby has denied wrongdoing.

Levenson, a former assistant U.S. attorney, said a criminal case being brought against Weinstein would be “possible, but still not likely.”

In recent days, Weinstein Co., which was started in 2005 and produced hits including “The King’s Speech” and “Django Unchained,” has been working to distance itself from its co-founder. Still, questions remain over how much others at the company knew about Weinstein’s alleged behavior.

The New Yorker article described a “culture of complicity” at the Weinstein Co. Some current and former employees told the magazine that they were enlisted to help trick women into being alone with Weinstein in supposedly professional meetings that were pretexts for his sexual advances.

In California and New York, companies can be found liable if a manager has engaged in harassment, even if others at the firm weren’t aware of the inappropriate behavior, Fromholz said. Weinstein was co-chairman of his company and, with his brother Bob, owns 42%.

“If a manager of a company engages in harassment conduct, the company is liable even if they didn’t know about it,” Fromholz said.

Potential damages in such cases could include loss of wages, for example, if the victim is unable to work or find work because of the harassment. Companies can also be hit with demands for damages for emotional distress, among other claims.

Weinstein could also face lawsuits from the company he led until Sunday. Other shareholders of Weinstein Co. could sue him for breach of contract if he broke the company’s covenants or policies, according to one legal expert. However, if those shareholders knew about his alleged behavior and failed to act or were complicit, they would be unable to reap the prospective gains of a lawsuit.

Can the Weinstein Co. survive without Harvey Weinstein?
A flood of high-profile Hollywood and political players spoke out against Weinstein on Tuesday, among them Hillary Clinton, whose political career was long supported by the executive. Also on Tuesday, more women came forward to allege that they too had been harassed by Weinstein, including A-list actresses Gwyneth Paltrow and Angelina Jolie.

And at a news conference Tuesday, former actress and screenwriter Louisette Geiss accused Weinstein of harassing her in a hotel room during the Sundance Film Festival in Park City, Utah, in 2008. The statute of limitations related to the alleged incident has expired, but Geiss’ attorney, Gloria Allred, urged Weinstein to waive the civil statute of limitations.

“Why would he do it? Because I think he wants to work in this town again,” Allred said.

But efforts are rapidly underway to erase Weinstein’s connections to projects, people and institutions with which he was affiliated. Weinstein Co. has given television networks permission to remove his name from their shows’ credits. Also, several U.S. senators are giving away political donations that the executive made to them.

On Tuesday afternoon, USC said it would decline Weinstein’s pledge to fund a $5-million endowment for female filmmakers. An hour or so later, Weinstein’s wife of a decade, Marchesa designer Georgina Chapman, announced that she is leaving him.

Fox’s Suddenly Swift Action on Harassment Claims: “The Pendulum Has Swung the Other Way”

Fox’s Suddenly Swift Action on Harassment Claims: “The Pendulum Has Swung the Other Way”

By: Marisa Guthrie & Ashley Cullins
The Hollywood Reporter

Ousted Fox Sports exec Jamie Horowitz preps a lawsuit and Fox Business anchor Charles Payne vows to fight allegations of sex bias as the Murdochs adopt a “zero tolerance” policy in the wake of the Roger Ailes and Bill O’Reilly scandals and payouts.

When Fox Sports executive Jamie Horowitz was summoned to meet with a workplace investigator Friday, June 30, it was not necessarily cause for alarm. After all, he’d been given no indication anything was amiss with his job performance. Even when Horowitz, 40, was asked general questions about his interactions with colleagues — including if he’d ever gone for a drink or dinner with a female subordinate — he was not confronted with any specific allegation against him.

But after the meeting, when Fox asked him to surrender his company ID, leave the West Los Angeles lot and return at 8 a.m. on Monday of that holiday weekend, he called Patty Glaser, the fiery L.A. litigator, who advised him to do as commanded. When Horowitz arrived, he was told he was being terminated for cause and that the Los Angeles Times was about to post a story reporting his firing. Nobody explained why exactly. But Daniel Petrocelli, the top litigator who was hired to represent Fox Sports in the matter, tells The Hollywood Reporter: “We are confident that Mr. Horowitz knows why his employment was terminated, and we presume that he would prefer that the matter not publicly be discussed.”

Horowitz’s dismissal after two high-profile years as Fox Sports national networks president surprised many in the industry for the swift and public way it went down. In the aftermath of the sexual harassment scandals engulfing fellow 21st Century Fox outlet Fox News and the ouster of late founder Roger Ailes and anchor Bill O’Reilly amid at least $85 million in payments to women, CEO James Murdoch and Fox executive Peter Rice, who oversees Fox Sports, acted quickly and brazenly. Three days after Horowitz’s firing, Charles Payne, a Fox Business Network anchor, was suspended pending an investigation into an extramarital affair with a woman who appeard on the network. Payne’s lawyer says he “categorically denies” any harassment.

Payne admitted a romantic relationship with a Fox News contributor, who reported him because she said she was “blackballed.”

Glaser also has denied Horowitz harassed anyone, and she calls his treatment by Fox “appalling.” One source not involved in the ouster, while not discounting the seriousness of the allegations, describes it as “vicious.”

Sources within Fox Sports say the Horowitz firing came after more than one allegation of misconduct with a female employee and that the specifics of the interactions made immediate termination a necessity. Fox Sports president Eric Shanks told employees in a July 3 memo that the company’s “values are non-negotiable.”

But Glaser is said to be preparing a lawsuit and conducting her own investigation with an eye on arguing that Fox, hypersensitive due to the Fox News scandal and nervous about regulatory scrutiny of its planned acquisition of Sky Television in the U.K., acted impulsively and without all the facts.

Glaser’s first move is to attempt to gain access to any investigative report on Horowitz so he can see for the first time what specifically has been alleged and by whom. Sports Illustrated on July 3 quoted an unnamed female production staffer at Fox Sports who said that Horowitz, married with three young sons, tried to kiss her. “I have been working in sports for a long time, and no one has ever been that bold with me,” she told the magazine. Both Fox and Horowitz declined to comment.

According to sources, Horowitz also is being accused of an inappropriate incident with another woman, who came forward during the investigation, which took less than a month and was handled by an outside investigator, not a law firm (as is the case in the New York-based probe at Fox News). Fox Sports hired Petrocelli and his firm, but only after Glaser began representing Horowitz. (Petrocelli calls Glaser’s view of the situation “ill-informed and misguided.”)

Anticipating a lawsuit, a Fox Sports in-house attorney, Raquel Braun, has sent a “litigation hold” email to everyone potentially involved in the case, including Fox executives and talent and their representatives. Such requests to preserve documents are standard, but the broad nature of this request further suggests that Fox is girding for an intense legal battle. The company is still in the throes of litigation stemming from the investigations at Fox News.

Horowitz’s ouster and Payne’s suspension are a sign that Fox and the Murdochs are taking a zero tolerance approach when it comes to inappropriate workplace behavior. Also leaked to the media in the Horowitz matter was the fact that no settlements have been offered. (A federal probe into whether Fox News improperly structured settlement payments to minimize impact on the company’s financial disclosures is ongoing.) Multiple sources point to the company’s $15 billion bid for full control of Sky as a motivating factor to clean house.

Horowitz landed at Fox Sports in 2015 after a very short stint at NBC News, where he rankled employees of NBC’s Today show after taking what many have characterized as a scorched earth approach to turning around a ratings slide. Insiders note that Shanks was aware of Horowitz’s hard-charging style but needed an executive with the fortitude and vision to forge an identity for the unit’s cable networks.

And Horowitz, who rose through the ranks at ESPN, turned over much of the original lineups at Fox Sports 1 and Fox Sports 2, which not surprisingly alienated many staffers. Days before his ouster, he laid off nearly all the writers on Fox Sports’ websites to focus on video.

Compared to the salacious allegations against O’Reilly and Ailes, the reported accusations against Horowitz may seem relatively innocuous — but any outside-the-office conduct with a subordinate still might violate corporate policy. It’s also likely that Horowitz’s place high on the Fox food chain subjected him to higher standards — especially given recent allegations that the company’s leadership ignored systemic misogyny and harassment.

“From what we saw at Fox News, it seems they weren’t swift in taking corrective action,” says Ann Fromholz, who specializes in corporate harassment investigations. “It seems that the pendulum has now swung the other way. Fox may have reached a point that anything they determine violates their policy would lead to significant punishment, if not termination.”

While Horowitz is absorbing the full force of the zeitgeist, Fox’s swift and severe reaction is likely to trigger aftershocks among its competitors.

“I expect other companies will tread more carefully,” says Fromholz. “I know that there are plaintiffs’ employment lawyers who are using this situation at Fox News as a barometer when they write a demand letter to a company saying, ‘You have a Fox News problem.'”

More big firms hit with sex discrimination suits

More big firms hit with sex discrimination suits

By:  Nicolas Sonnenburg
Los Angeles Daily Journal
June 30, 2017

Steptoe & Johnson LLP has become the latest of several national law firms to be hit with a gender discrimination lawsuit from a former employee alleging pay disparity between male and female partners and a lack of female partnership promotions.

The majority of these recent cases have been filed on the East Coast. The federal claim facing Steptoe in Los Angeles is only the second to reach California. The suit might shed light on the state’s potential as a venue for such actions. The plaintiff filed her complaint under California’s Fair Pay Act, which became law in 2016.

Last Thursday, plaintiff Ji-In Houck filed a proposed class action against Steptoe, alleging the pay she received as an associate was not commensurate to that of her male counterparts. Houck v. Steptoe & Johnson LLP, 17-CV04595 (C.D. Cal., filed June 22, 2017).

Houck, who started at Steptoe’s Century City office in 2013, was hired as a contract attorney with an $85,000 salary. Her complaint alleged that, as a contract lawyer, she did the same work as male associates who were admitted to the bar the same year she was, 2011. According to the complaint, these male attorneys were paid $165,000.

A year later, Houck was made an associate and her salary was raised to $130,000. She alleged, however, that work she did as a contract attorney was equivalent to that of other associates in the firm and that other 2011 bar-passers at her firm were making $175,000 when she made associate status.

The complaint also alleged a lack of response by the firm to Houck’s inquiries into the pay disparity and a failure to involve her in women’s initiative programs in the firm, despite her request to participate.

Steptoe has denied the allegations, describing itself as a “strong supporter of women lawyers and professionals.”

“The allegations of associate pay discrimination in this lawsuit by a former junior associate who was hired as a contract attorney and stayed with the firm for less than three years are completely without merit, and we will vigorously defend ourselves against such baseless claims,” the firm said in a statement.

Earlier this month, the firm was named in Yale Law Women’s 2017 “Top Ten Family Friendly Firms” survey in its gender equity category for promoting a partner class in 2016 that was at least half female.

Steptoe joins a growing list of prestigious firms facing similar charges. Chadbourne & Parke LLP, which will soon merge with Norton Rose Fulbright, is facing a gender bias claim from three former female partners in the Southern District of New York. Proskauer Rose LLP was hit with a $50 million lawsuit in the District of Columbia from an anonymous female partner.

A case alleging pay discrimination at Sedgwick LLP, filed by a female partner in Chicago, made its way to California where Sedgwick is based, but it was settled for an undisclosed amount after being moved to arbitration.

The claims all share allegations of gender-based pay disparity and a lack of female partnership promotions. Houck is represented by Lori Andrus of Andrus Anderson LLP in San Francisco, a civil attorney who lists equal pay among her areas of practice. Houck’s case, if it goes to trial, would be the first to test the viability of such a lawsuit under California’s Fair Pay Act.

Under the new California statute, Houck will not need to establish intent to discriminate in order to be successful on her claim. Under the law, an employer many not pay employees of opposite sexes different wages for “substantially similar work,” except when the employer can establish appropriately different factors between the employees like seniority or experience.

“I imagine that in this case the question will come down to what constitutes ‘substantially similar work,'” commented Ann Fromholz, a Pasadena-based labor attorney. “If other women in her peer group were making less than men, that would seem to support her claim.”

Who exactly the court considers to be Houck’s peers likely will determine how the case unfolds. Throughout her complaint, Houck compares her pay to those of “male counterparts.” The complaint does not specify whether those male associates, who also passed the bar in 2011, were hired by Steptoe at the same time as Houck or earlier.

In a section of the complaint alleging that the firm underpaid other female attorneys, Houck cites two anonymous female associates – one of whom was originally hired as a contract attorney – that made considerably less than what she describes as “male counterparts.”

“The California Equal Pay Act doesn’t require proof of intent,” emphasized labor and employment lawyer David A. Lowe of Rudy Exelrod Zieff & Lowe LLP, who is not involved in the case. “What the associate attorney needs to establish is a pattern of paying female associates lower than their male counterparts for similar work. The key is paying a comparable rate of pay; that doesn’t require intent.”

Lisa Von Eschen, a Los Angeles partner at Lamb & Kawakami LLP who is also not involved in the case, said the salary numbers presented in the complaint removed much of the subjectivity defense available in similar gender bias suits regarding the value of things like promotions and office culture. She also said the case isn’t a home run.

“You can’t just look at the numbers without looking at more than the associate’s background. The woman here had been hired as a contract attorney. Some people say that that doesn’t make a difference, but it could make a world of difference. She could have been brought on to fill a small role originally, which would have a bearing on salary decisions,” Von Eschen said.

As to why the influx of suits now, lawyers say that changing perceptions about gender in the workplace are likely to be a motivating factor.

“It used to be that the received wisdom was that it was professional suicide to sue for this sort of issue,” said Deborah L. Rhode, a Stanford Law School professor. “I think what you’re seeing is an increased willingness on the part of women lawyers who have been subject to gender bias to file lawsuits to change it. Gender bias is nothing new. It’s been there from the outset.”

Rhode said women across the job market have increasingly found luck in challenging top corporate leadership, coming out with substantial settlements and moving onto successful careers afterward – in particular, noting major leadership changes at Uber and Fox News following allegations of sexual discrimination and harassment.

Houck herself left Steptoe in March 2016 and has been working at the Stalwart Law Group since.

Ann Fromholz Named Fellow to Top Employment Lawyers’ Group

Ann Fromholz Named Fellow to Top Employment Lawyers’ Group

Expert Workplace Investigator Honored by College of Labor and Employment Lawyers

 Top employment attorney Ann Fromholz, an expert workplace investigator, has been elected a Fellow of the College of Labor and Employment Lawyers (CLEL).

“It is truly an honor to be named a Fellow because I believe it represents my commitment to clients, to excellence and to the profession,” said Fromholz, who investigates sensitive workplace complaints and is certified to conduct Title IX investigations.

Fromholz is one of 79 inductees in 2017 joining nearly 1,400 Fellows internationally.  She is one of only four 2017 inductees from across California and the only attorney selected from Los Angeles County.

The inductees will be honored on November 11, 2017 in Washington, D.C.

Fromholz, who has been in practice 22 years, serves on the Los Angeles County Bar Association’s Judicial Appointments Committee. She’s also a member of the American Bar Association Section of Civil Rights and Social Justice and the American and Los Angeles County bar associations’ labor and employment sections.

At the LACBA Domestic Violence Legal Services Project, Ann helps victims of domestic violence and elder abuse obtain temporary and permanent restraining orders. She helps nonprofits, such as APLA Health and Homeboy Industries. Through the Constitutional Rights Foundation, she spent the past four years coaching the Animo Pat Brown Charter High School mock trial team.

Booze, Sex and Legal Drama: How the ‘Bachelor’ Scandal Could Reshape Reality TV

Booze, Sex and Legal Drama: How the ‘Bachelor’ Scandal Could Reshape Reality TV

By:  Ashley Cullin
The Hollywood Reporter, June 21, 2017

To any lawyer who regularly investigates sexual misconduct in college or corporate settings, the premise of ABC’s Bachelor in Paradise is a legal minefield: Men and women who were romantically rejected on national television are sent to a Mexican resort and supplied with a seemingly endless well of free booze for a second chance at finding love.So it is no surprise to legal observers that a recent allegation of sexual misconduct on the set involving questions about alcohol and consent could reshape the reality television genre — even though Warner Bros. TV, which produces the show, announced on Tuesday it found no evidence of wrongdoing in its internal investigation.

A trip to paradise became hell for two BIP contestants, Corinne Olympios and DeMario Jackson, who on June 4, the first day of filming, engaged in sexual activity while under the influence of alcohol. Confirmed details are scarce amid conflicting accounts, but according to multiple reports attributed to sources close to the situation, the pair began kissing and then moved to the pool, where the intimacy escalated but did not include sex. The following day, a producer on the show lodged an internal complaint that sparked an immediate investigation by Warners.

In a statement, Olympios said she doesn’t remember what happened, but sources insist the fan favorite appears to be “lucid” in the footage from that day, and neither party thought anything questionable had happened between them until they were later filled in by producers and castmembers.

So who, if anyone, is potentially liable?

“Anyone can unwittingly commit sexual assault if there isn’t informed and proper consent,” says criminal defense lawyer Priya Sopori. Here, because both parties had consumed alcohol, there is a chance that each was too intoxicated to realize the other couldn’t consent. Sopori explains that, while it might sound strange, “It’s possible that both parties can claim that they were sexually assaulted if they were both in a position in which they were unable to give consent.”

Olympios, who is represented by litigator Marty Singer, says she holds the show responsible for what happened, not Jackson. For his part, Jackson says he has lost his job because of the damage this situation has caused his reputation.

Sopori notes that sexual stereotypes can lead the public to place blame without having all the facts. “The assumption is that, in order to have an erection, the man has to be sexually aroused and provide consent,” she says. “Going through the motions does not equal consent.”

Unlike the scenarios that lawyers routinely investigate, this case involves people who are filmed 24/7. Warners says it won’t release the tape out of respect for the privacy of those involved. “We can say, however, that the tape does not support any charge of misconduct by a cast member,” said the studio in a statement. “Nor does the tape show, contrary to many press reports, that the safety of any cast member was ever in jeopardy.”

It remains to be seen whether ABC will air any film of Jackson and Olympios from day one. “Putting aside constraints of the FCC, ABC has every right to air the non-sexual footage,” says Sopori.

Even if no evidence of wrongdoing is present on the tapes, this situation brings to the forefront questions of responsibility. “It raises the issue of, where is the line and at what point do producers have to step in and not let the story unfold, even if it might make for great TV,” says Los Angeles-based employment litigator Lisa Von Eschen.

It’s a virtual certainty that the contracts signed by contestants indemnify the show and its staff from legal liability and require that any disputes be resolved in confidential arbitration.

But there are some lines that cannot be crossed, falling outside the scope of the contract. While the show shoots in Mexico, experts say the contracts most likely dictate that any disputes would be subject to California law — which requires affirmative consent for any sexual conduct.

Regardless of the outcome — the matter almost certainly will settle before it reaches a courtroom — and who ultimately is held responsible, Warners and ABC face a possible negligence claim and increased liability moving forward because they have been put on notice that issues of alcohol and consent could arise among the shows’ contestants.

Any changes to behind-the-scenes protocol could affect the product onscreen, and an entire genre of reality TV. One source equates such scrutiny to requiring porn actors to wear condoms. But for producers, while the issues involved are complicated and sensitive, the steps forward are fairly clear-cut: weigh the revenue generated by the show, its reception from fans and whether changing the formula to mitigate risk would hurt the franchise.

“It’s honestly a risk-benefit analysis,” says attorney Ann Fromholz, who specializes in workplace and campus investigations of harassment claims.”Is the benefit of having the show in its current form worth the risk?”

Apparently so. Warners on Tuesday announced that production of the show would resume and it will “implement certain changes to the show’s policies and procedures to enhance and further ensure the safety and security of all participants.”

Sopori says immediately launching a thorough internal investigation is the best defense to any potential claim, and she’s not surprised the show will continue. “If you have cleared your producers and your cast of any misconduct, to not move forward would suggest you lack faith in the results of the investigation,” she says.

Philip Bonoli, an employment lawyer at Brutzkus Gubner, questions why there would be a need to implement changes if Warners’ investigation found no misconduct, but says taking measures to prevent future issues could lower liability in the event of another incident. “They should, and it sounds like they will, institute training regarding harassment or other training to prevent something like this from happening again,” he says. “It sounds drastic, but serious thought should be given to restrict the availability and consumption of alcohol by the contestants.”

In a guest column for THRBachelor in Paradise alum Evan Bass says the contracts make clear that each contestants’ alcohol consumption is his or her own responsibility but adds, “Alcohol is treated with the respect it deserves, and sometimes contestants are asked to stop.”

One option attorneys recommend, which based on Bass’ statements could merely be a strengthening of the current protocol, is to essentially train the crew to recognize the same signs of excessive intoxication that bartenders look for.

“The show’s producers will want to make certain to step in if activities cross the line from attention-grabbing television to conduct that places the participants in danger and/or violates civil or criminal statutes,” says Von Eschen.

Jackson’s camp did not comment on Warners’ announcement, but Singer says he’ll continue investigating what happened on behalf of Olympios. It’s unclear whether either of them will return to set — and that will likely hinge on whether either is still considering a lawsuit. Odds are both parties are in negotiations with producers, which will likely address how much footage from that day, if any, will air and if either will continue to be part of the franchise.

“Companies generally do not like to pay someone in exchange for an agreement not to sue and then have that person keep working as an employee,” says Fromholz, opining on the likely outcome in a more traditional corporate setting. “Having both contestants return probably would generate big ratings, but it also likely would increase risk to the company.”

What To Do When A Workplace Investigation Jumps The Tracks

What To Do When A Workplace Investigation Jumps The Tracks

By:  Ann Fromholz
Originally published in Law360 on June 2, 2017

Much like other types of investigations, a workplace investigation can unearth all kinds of unexpected information.

The Chicago Tribune reported recently that an investigation into whether a water district superintendent used his government email account for gun deals blew up into a finding of racist and sexist behavior at the highest levels, which led to resignations by top city officials.

And according to a San Jose Mercury News report in March, a workplace investigation at Tesla into an employee’s complaints about racist behavior took a tricky turn when the company later discovered that many of the employees involved, including the one who complained, would socialize outside work and freely use the language that the employee complained about.

Recently, I was hired to conduct an investigation at a private firm that had received a complaint of sexual harassment from one of the few women in management. She alleged that the harassment had been going on for months and that it had gotten so bad that she could no longer work at the firm.

During the investigation into her complaints, witnesses told me what they knew about the complaining party’s claims. They also told me about sexual overtures by a male senior executive toward numerous junior women at the company. The witnesses told me that his conduct was well known, but none of them had complained to the company about it until I showed up to investigate a different complaint.

The rules aren’t always clear as to what the investigator is supposed to do with the information when the case takes an unanticipated turn. This article offers some guidance on this.

Define The Scope of the Investigation

First, define the scope of the investigation from the beginning. This is one of the first rules that any would-be investigator learns about conducting workplace investigations.

It is common for the complaining party or other witnesses to raise issues or allegations that clearly are outside the scope of the investigation

Once the investigator, who is functioning as an agent of the employer, knows of the new allegations, the company is on notice of the allegations and has an obligation to investigate. The investigator therefore should notify the appropriate person within the employer’s reporting structure of the new allegations as soon as possible. If the investigator is internal, she may notify the head of human resources, the head of the legal department, or another internal resource who is overseeing the investigation. If the investigator is external, she should notify the person at the employer who is responsible for the investigation (often, but not always, someone within the legal or human resources departments). The employer then should determine whether to expand the scope of the current investigation or initiate a new investigation. The employer also will determine whether a different investigator will investigate the new allegations.

Document Decisions

The investigator should document any decision to change the scope of the investigation. Likewise, if the investigator notifies the employer of new allegations and is instructed not to investigate those new allegations, the employer should document this instruction.

Avoid Risk for Retaliation Claims

Sometimes, an expanded investigation can put the investigator in a difficult position and put the employer at risk for claims of retaliation. Let’s use as an example an investigation into an employee’s claim of sexual harassment against her supervisor. The responding party — the person accused of harassment — tells the investigator that the claims are baseless and that the employee made the claim to protect herself because she is a poor performer and knew that she was about to receive discipline for her unacceptable performance.

The employer should not request that the investigator expand the scope of the investigation to include the allegations of poor performance and the assertion that the complaining employee made the complaint of harassment to stave off discipline. The investigation should remain focused on the allegations of workplace misconduct, which in this scenario are the original claims of sexual harassment. The company’s human resources department should manage the complaining party’s job performance separate from the misconduct investigation.

The investigator may determine that the complaining party’s job performance, and the possibility that she made the harassment claim as a preemptive strike, affects the complaining party’s credibility.

Performance Management

Beyond that credibility determination, workplace investigations should not be used as a substitute for performance management. If the employer charges the investigator with investigating the complaining party’s performance, and that inquiry becomes intertwined with the original investigation, the employer runs the risk that the complaining party may well allege that the investigation itself was retaliatory.

Instead, the employer should have separate employment counsel — whether in-house or external — who can advise the human resources staff on how to manage the employee’s performance and how to ensure that such performance management is separate from her complaint of workplace harassment. With the advice of counsel, the employer should take steps to address the performance issue that was raised in the course of the investigation. Avoiding the issue of performance because the employee has complained of harassment — or other workplace misconduct — only serves to prolong a performance problem.

Other Conflicts

Perhaps the most difficult dilemma for an investigator arises when the investigator’s view of the investigation contradicts what the employer believes should happen. No matter how careful the investigator is to define the scope of the investigation at the outset, such conflicts nonetheless can arise.

In many investigations, the investigator determines that certain employees — who were not in the original investigation plan — likely have knowledge relevant to the investigation and therefore should be interviewed. The investigator should explain to the employer what new information has arisen, why the new witnesses appear to be relevant, and why their interviews are necessary. In most cases, the employer will willingly allow the investigator access to those employees and, if necessary, help schedule interviews.

However, employers sometimes choose to restrict the investigator’s access to certain employees or information. This may happen because the information is particularly sensitive or because the employees are very highly placed or very visible. In rare cases, employers have prohibited investigators access to employees (or former employees) without giving any reason or demurring because the additional interviews would increase costs too much.

Whatever the reason, the employer’s decision to restrict the investigator’s access to certain employees or information is a problem. It can create a serious ethical dilemma, especially when the information relates to the established scope of the investigation.

If the investigator cannot convince the employer to allow her access to the necessary witnesses or information, the investigator often will elect to document her request to the employer, the employer’s denial of the request, and the investigator’s perception of the ensuing impact. If the witnesses and information are crucial to the investigation, the investigator might determine that she cannot continue the investigation with the restrictions imposed by the employer. Of course, she will document this decision as well.

The way the investigator and the employer frame the scope of the investigation will dictate the resources available to the investigator, the expectations of the investigation, and the availability of corrective action to address any problems that the investigation unearths.

If the employer views the investigation as a tool to find and correct problems in the workplace — and not as a necessary evil required by Draconian employment laws and employment lawyers — the employer is more likely to support the investigator and the investigation with the resources necessary to accomplish those goals.

The “Dead Man’s Statute” isn’t Johnny Depp’s latest “Pirates of the Caribbean” movie

The “Dead Man’s Statute” isn’t Johnny Depp’s latest “Pirates of the Caribbean” movie

By:  Todd Cunningham, The Recorder
May 19, 2017

It’s a rule of evidence—adopted in many states, including New York—that could help 21st Century Fox attorneys mount an effective defense in the raft of sexual harassment suits it’s facing, despite the death earlier this week of Roger Ailes. The Fox News founder, who paid $20 million to end a suit brought by former anchor Gretchen Carlson, was accused in several of the disputes that followed her explosive allegations.

The principle underlying the dead man’s statute dates back to the 19th century and is used today mainly in probate cases. Designed to prevent perjury, it prohibits a party with an interest in civil litigation from testifying against a dead party about communications with the deceased.

It would apply only in cases where Ailes, accused of making unwanted advances toward several female Fox News anchors and guests, was named as a defendant.

Jack Schaedel, part of the labor and employment group in the Los Angeles office of Dykema Gossett, said the Ailes scenario illustrates the reason for the rule.

“Harassment cases like these often involve ‘she said/he said’ situations,” Schaedel said, adding, “What’s to stop the plaintiff from saying that Ailes promised her $10 million for sex? If he’s not there to rebut it, does that mean she can say it and she wins?”

If there was any doubt that attorney Douglas Wigdor, the New York attorney who represents 21 plaintiffs who have sued Fox, would attempt to exploit defense weaknesses caused by the death of the 77-year-old conservative icon, it didn’t last long.

“The sudden passing of Roger Ailes will make it difficult for Fox News to refute the allegations against him as his testimony was not secured by sworn testimony to date,” he said in a statement released hours after the news of Ailes’ death broke.

He then cited accusations made in a pending Southern District of New York complaint by Fox reporter Lidija Ujkic. Ujkic, who does not name Ailes as a defendant in the suit, claims that he asked her to turn around so he could see her from behind and commented that he liked what he saw, and also called her ex-boyfriend to ask whether she “put out” and “how’s the sex?”

A suit filed in New York state court last month by Fox News contributor Julie Roginsky does name Ailes as a defendant. Roginsky claims Ailes made repeated unwanted sexual advances and that she was denied on-air opportunities for refusing him.

Even with the dead man’s statute, there are ways of getting the testimony in, said Ann Fromholz, an employment attorney who founded the Pasadena, California-based Fromholz Firm.

“He may have recounted one of the incidents to someone, or sent emails giving his side of the story, and that would be admissible as an exception to the hearsay rule,” said Fromholz, who suggested the absence of Ailes could present other challenges for Fox.

“It is going to complicate the discovery process, because they won’t have his take on some of the events in question. They will only have the accusations. He can’t help his own lawyers,” she said, noting that Ailes’ death will also affect who’s liable.

“We haven’t seen all the suits, but typically the estate would be responsible for any damages or monetary awards against the defendant,” Fromholz said.

Quinn Emanuel Urquhart & Sullivan partner Susan Estrich, who represented Ailes, did not return a call seeking comment. A call to Fox’s corporate headquarters was also not returned.

“Roger Ailes has left behind a grieving widow and teenage child. They did nothing wrong and surely deserve our sympathy,” Judd Burstein, a New York-based attorney representing former Fox News anchor Andrea Tantaros in a sexual harassment suit, said Thursday. His team is appealing a New York Supreme Court ruling which found that the dispute should be handled in arbitration. Burstein declined to comment on his team’s legal strategy, saying it would be “unseemly and heartless.”

“It seems odd to say,” said Schaedel, “but at some point a sympathy factor could kick in. Generally, juries tend not to want to criticize someone who’s dead, and his widow could testify, for example, that he was a wonderful husband, and took great pride in his helping young journalists make their way.”

Schaedel said there could also be a backlash if the jury perceives there is an element of “me too” in some of these suits, and thinks some of the plaintiffs are trying to cash in. Fox News has already paid out more than $45 million to settle suits involving Ailes, according to a recent U.S. Securities and Exchange Commission filing.

“Fox could make the point that these filings can be contagious, and suggest that with all the reports of these payouts, some of them may be treating Fox News like an ATM,” he said.

Ailes’ absence could also make it more difficult for Fox to defend itself against charges that its leadership should have done more once it became aware of the problems, leaving itself vulnerable to significant punitive damage awards.

“Typically, it’s the obligation of the top leadership of the company to see that there was a problem and take steps to correct it and prevent it from happening again,” Fromholz said. “In these cases, the top leadership of the company are the ones accused of creating the problem, and Ailes won’t be around to explain what happened.”