Editor’s Note: The #MeToo movement has empowered victims of sexual harassment and abuse previously silenced by powerful business and political leaders. No longer silent, these victims are using their experiences to challenge the powerful and raze structures that have permitted abuse. We have compiled a panel of legal experts to analyze how the law and the legal profession failed the workplace. The panelists discuss legal and environmental conditions that led to abuse, and what lawyers and businesses can do to curb the powerful and protect the vulnerable.
In this roundtable discussion, Phillip Maltin, an expert in employment law and a partner at Los Angeles-based Raines Feldman, LLP; Phyllis Cheng, a Los Angeles mediator, former partner at DLA Piper, and former director of the California Department of Fair Employment and Housing; Curt Surls, a plaintiff’s lawyer and workplace investigator in Manhattan Beach, CA; and Bradley Rutt, vice president of Elkins Jones Insurance Agency, and an attorney licensed in the State of California, share their advice their insight for employers to consider when addressing this timely issue. Editor-in-Chief Adam Schlagman serves as the Moderator.
How were so many high-profile individuals able to get away with assaulting women for decades? How could this happen? Who, or what, is responsible?
Phillip Maltin: Neither the law nor years of sexual harassment prevention training have eliminated sexual harassment. Power in Hollywood, and now we see in Washington, DC, has gone unchecked. Lawyers and Human Resources professionals have either failed to confront the problems, or senior executives have ignored their recommendations. In some instances, leaders who are the targets of claims, like Harvey Weinstein, are likely the ones deciding their own fate. Doesn’t it seem like a conflict of interest? I’ve been telling my clients about a multilayered system I’ve developed that includes, literally, tearing up relationships with legal and HR and starting over — rethinking how executives use and communicate with legal and HR. Things have to change.
Phyllis Cheng: The main obstacle to workplace sexual harassment is lack of reporting. As a result, harassers get away with their wrongful conduct without any threat of consequences. This happens because victims are reluctant to speak out, do not believe employers would take action, worry they would be blamed for inviting the conduct, and fear retaliation for having complained. Similarly, coworker witnesses are unwilling to be involved and risk their own positions. Employers are responsible for having clear sexual harassment and retaliation policies, procedures and training that consider victims’ reluctance to speak out, and that make known and carry out explicit job consequences for harassers.
Curt Surls: Much of the blame goes to the silent complicity of the men surrounding Weinstein, who did nothing despite his years of flagrant abuse and criminality. Further, when the problem starts at the very top, what victim is going to expect any justice from an internal complaint? His reprehensible conduct may well have continued indefinitely had it not been for the bravery of the two dozen or more women who collectively called him out despite the potentially dire consequences to their careers.
Bradley Rutt: Harvey Weinstein preyed upon people whom he felt had limited means of reporting the deplorable conduct to anyone who could stop it. Moreover, as the conduct was reported, the victims were attacked and silenced in a systemic campaign to impugn their credibility and limit his own reputational damage. The proverbial “blame game” has begun, even as this story continues to unfold. First and foremost, Harvey Weinstein is responsible for his own conduct. His responsibility only slightly overshadows the responsibility of various enablers including his brother and those many other people aware of the depth, breadth, and severity of what was occurring, regularly.
Do anti-harassment and anti-discrimination laws protect workers or simply compensate them? What needs to change?
Phillip Maltin: It’s really hit-or-miss. Maybe laws don’t protect workers at all. Maybe what makes people do the right thing is upbringing. Or maybe laws cause impulse control that works only if the person has it. I wish I could say that laws stop bad behavior. I’ve prosecuted, and I teach prosecutors, so I know that laws themselves don’t stop bad behavior, they only make self-reflective people think before they act. But money doesn’t seem to change things, particularly among those who have a lot of it. Again, I wish I could say that people who are injured are fairly compensated, but many are not. And some are overcompensated. Maybe the #MeToo confessions, and public opprobrium, have superseded a broken system.
Phyllis Cheng: Anti-discrimination laws both protect and compensate victims. Both Title VII of the Civil Rights Act and California’s Fair Employment and Housing Act protect the right and opportunity of all persons to seek, obtain, and hold employment without discrimination. Both laws provide for compensatory and punitive damages. Title VII provides for back pay and punitive damages based on the size of the employer. More protective than Title VII in a variety of ways, the FEHA has no damages caps and makes employers strictly liable for supervisors’ harassment. The FEHA also requires employers to provide regular sexual harassment prevention training to supervisors.
Curt Surls: The protection and compensation provided by the law are random at best. Many companies won’t take their obligation to provide a workplace free of harassment seriously until they are slammed in the pocketbook. But under federal anti-discrimination law and the laws of most states, the company can take solace in damages limitations. A multi-million dollar compensatory and punitive damages award will be automatically cut, as a matter of law, to a maximum of $300,000 for the very largest companies, and as low as $50,000 for companies with less than 100 employees. These limitations reduce a potentially transformative message from the jury into a mere cost of doing business. California has no such limitations, but dilutes the impact by permitting employers to impose mandatory arbitration agreements on employees to circumvent the right to a jury. One rarely hears of a “runaway arbitrator” awarding exorbitant damages. It’s a pipe dream on my part, but in my state, I would love to see California law prohibit mandatory workplace arbitration.
Bradley Rutt: Anti-harassment and anti-discrimination laws serve as both a deterrent and punitive/compensatory framework with some success. However, as illustrated by Harvey Weinstein, there are not only those people who feel they are above the law, but there are those people who have means to stay ahead of the law or blunt its effects. Ultimately, Weinstein’s spiraling demise was brought about by the growing number of victims who spoke publicly, and the media firestorm that followed. Behavior like Weinstein’s must be eradicated. Unfortunately, we are seeing that on a daily basis, similar actions are common across multiple industries. While we work on educating our society, it is prudent, if not more realistic, to set up better mechanisms for the reporting of actual or alleged illegal behaviors. We have made strides in building HR infrastructures for our employees. But what about the third parties with whom companies deal on a regular basis? Little has been done to build mechanisms for their protections.
What is a lawyer’s job? Isn’t a lawyer supposed to protect victims of workplace misconduct by higher-level executives?
Phillip Maltin: A lawyer’s job is to protect the client, even if it means fighting on behalf of bad guys, like Weinstein and Spacey. Behind closed doors, a lawyer has to be heard, and that’s not always easy. I think protecting a business means protecting the victim — that should be an axiom of the workplace, but it applies only if a lawyer can catch and correct the problem early enough. Sometimes I hear about a problem after it’s become a lawsuit. When that happens, I have to protect the business, whether or not it’s filled with good guys. When all the shouting is over, I have to follow my client’s legal directives or quit. Perhaps in Hollywood, Washington, DC, and in business across North America, lawyers haven’t been shouting loud enough.
Phyllis Cheng: Every story has two sides. Each litigant is entitled to legal representation. The lawyer’s job is to provide clients with zealous advocacy, competent representation free of conflict of interest, and to maintain confidentiality under the rules of professional conduct. Lawyers can provide effective advocacy and defense, and negotiate mutually acceptable resolutions to workplace conflicts.
Curt Surls: There has been a steady parade of cable news commentators deploring the practice of confidential settlements, arguing that such agreements protect the harasser and undercut the broader struggle to combat harassment by naming and shaming perpetrators. It’s a fair point. But my retainer agreement is with the client in front of me and not between my office and The Greater Good. And she (and very occasionally he) may have a perfectly reasonable preference for quietly and confidentially resolving the matter without public scrutiny. Nevertheless, with my client’s concurrence, we will occasionally seek some sort of remedial action in a settlement agreement, such as an outside audit of the company’s complaint, and investigation protocols or intense one-on-one harassment training and counseling for the perpetrator. But the short answer is that a lawyer’s job is to advance the interests of his or her client and not society at large.
Bradley Rutt: Protection of victims is just one of a lawyers’ many jobs. Lawyers develop the framework by which employers and employees live and work. Lawyers consult their clients to navigate actual or alleged misconduct situations. As attorneys, we know that both sides are entitled to representation. Lawyers represent the aggrieved parties, but lawyers represent those against whom claims are being made, as well.
Are these situations a failure of law or something else?
Phillip Maltin: The Equal Employment Opportunity Commission (EEOC) may have foreseen these problems when it concluded last year that some of the anti-harassment training lawyers and others deliver focuses on the wrong things and “may actually be counterproductive.” In other words, mandatory anti-harassment training may have contributed to the problem. It’s defective, because it centers on responding to and countering allegations of harassment, not on preventing bad behavior or protecting victims. Deficient training doesn’t entirely explain Weinstein. What does? Checks on power failed. Checks on ego failed. Legal failed. HR failed. Simple human decency disappeared.
Phyllis Cheng: Current laws barring sexual harassment are strong. Most workplaces have in place policies and procedures that mirror the requirements under the law. Unfortunately, laws and policies are only as effective as the human beings who employ, supervise and work within institutions. Without institutional commitment to enforcing these policies, unchecked harassment can become explosive.
Curt Surls: I’m voting for something else! To quote the late, great comic strip “Pogo”: “I have met the enemy and he is us.” By which I mean men. Women are doing their part by risking everything to come forward. But we men need to do more than congratulate ourselves for not personally harassing anyone (cross reference the “#NotAllMen” hashtag). Every one of us has had some version of the “Billy Bush moment,” in which we’ve nervously laughed or failed to call out a powerful male making sexist and derogatory statements about women. Let’s make that sort of conduct unacceptable. Call out the colleague who makes disrespectful, bigoted comments about female colleagues when no women are present. I’m not saying that making raunchy comments objectifying a female co-worker is necessarily a gateway drug to direct verbal or physical harassment. But not tolerating that conduct — when it’s just us guys in the breakroom — would be a huge step toward changing the workplace culture.
Bradley Rutt: The laws continue to develop in the space, and they are by no means infallible. It is prudent to recognize that there were thousands of men and woman who did not even feel comfortable bringing this to attention of authorities or employers, even with the existence of laws. The real failure is that we do not have a system where people can report incidences of workplace misconduct without fear of shame, scrutiny or a ruined career.
How can we prevent situations like this from happening in the future?
Phillip Maltin: No one thing is going to prevent harassment in the future unless you isolate people from each other. I am, however, optimistic that we can take bold steps to make real change. Among a lot of other things, I’ve been telling my clients to establish quality assurance committees authorized to override and correct troubling decisions. They should also reconfigure sexual harassment prevention seminars, to ground them in the kind of civility training that lawyers have avoided. Can you ask someone out? Yes. If the person says “no,” move on. In addition, training shouldn’t be “defensive.” It shouldn’t focus on how to counter allegations or protect business leaders. It should emphasize that swiftly reacting to complaints is the single most important thing a business can do after it learns of a problem.
We need something like a workers’ “bill of rights” that identifies immediately suspect behavior, such as invitations to off-campus meetings, or just about anything having to do with a hotel room. We should tear up relationships between executives and their legal departments and HR functions, and start over with new protocols for communicating unpopular advice. We can do more, a lot more.
Phyllis Cheng: Workplaces should promote a culture of civility and professionalism free of unlawful discrimination, harassment, and retaliation. Employers should have in place clear sexual harassment and retaliation policies, procedures, and training that consider victims’ reluctance to speak out, and that make known and carry out explicit job consequences for harassers.
Curt Surls: I am tremendously heartened by the reception of the Hollywood/Washington/Sacramento complainants by the press and the public (for the most part). For the first time in history, the victims are largely being given the benefit of the doubt. With notable exceptions, they are not all being reflexively attacked by the accused and their protectors. If this is indeed a cultural change, and more victims are emboldened to come forward without fear of renewed victimization by their powerful harassers, the perpetrators who used to consider themselves invincible will think twice. I hope. The law is there. The culture has to change. And maybe it is.
Bradley Rutt: An important first step is for companies to develop a “Third Party” or “Independent Contractor” Bill of Rights or Conduct Handbook. Understand that certain legal protections, and certainly criminal protections, extend beyond the traditional employer/employee relationship. As attorneys, and perhaps employers ourselves, we need to make sure proper reporting framework is in place in case of actual or alleged workplace misconduct. Without judgment, we need to anticipate that anyone can be accused. It is important to anticipate what a report against a CEO or person of power would look like, and to whom it would be made.
What does the future look like given this “post-#MeToo” environment?
Phillip Maltin: Something else is coming, perhaps worse than what we’ve heard so far. It’s an after-shock called “compassion fatigue.” This is the gradual loss of empathy for victims of sexual assault. It’s the next chapter. People “burn out” when they get overwhelmed by, or simply tired of, complaints about something calling for empathy. When stories about Weinstein (and others) create compassion fatigue, professionals will start accusing victims. You can see that starting to happen now in the media. We need to prepare for, train for and control compassion fatigue. Train everyone involved to always ask a simple question when they hear a complaint and they quickly conclude the “victim” has an agenda. Ask, “How do I know that?” It’s that simple. Colleagues need to press each other by asking, “Do you know that?” “How do you know that?” “Give me the evidence.” Suspicions, decisions based on circumstances, and conclusions grounded in intuition are nothing more than feeble support for biases.
Phyllis Cheng: Sexual harassment incidents are not new. The topic became viral with the Anita Hill/Clarence Thomas controversy in the early 90s. Litigation, legislation, regulation and training followed. While training produced greater awareness, sexual harassment claims did not diminish, but perhaps the claims did not grow as much as they could have without the preventive measures. Now, more than two decades later, the Weinstein matter has revived sexual harassment as a burning issue once more. Another cycle of litigation, legislation, regulation and training is expected, likely to be followed by a plateauing before the cycle begins once more.
Curt Surls: The #MeToo Facebook movement was extraordinarily powerful. I think it was eye-opening for a lot of men. The #MeToo movement may very well have been the catalyst for the cultural change I hope we are undergoing. However, I completely agree with Phil’s concern about “compassion fatigue.” I am waiting for the backlash — the backlash that will inevitably come when the press uncovers the first high-profile bogus complaint. There will be a media feeding frenzy, which may partially undo the progress we’ve made in the way that complainants’ accounts of harassment are evaluated. I also worry that the extraordinarily lurid and sensational nature of some of the allegations will raise the bar for what the average juror considers to be compensable sexual harassment. But we’re lawyers — we can deal with that nuance. On the whole, I think the events of the last two months have totally transformed the way the public thinks about harassment and its victims. In a good way.
Bradley Rutt: For the perpetrators of workplace misconduct, the future looks bleak. It seems as though not a day goes by where another star, politician, or titan of industry is accused of misconduct. Victims, more so than ever before, realize that they have a voice. While that is certainly a positive step, as a society, we have an obligation to make this sort of behavior a complete exception to the rule. There should be no more victims.
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.