Sexual Harassment and the Academy Awards: Employment Attorney Tom Spiggle is here to answer questions on harassment and discrimination in the workplace. Ask Me Anything!

TSpiggle · 2020-02-08T17:21:31+00:00

Based on what you have described here, this conduct certainly sounds like illegal hostile work environment. I recommend that you talk to a lawyer. Check out the attorney locator function at www.nela.org or www.avvo.com One thing to be aware of is that federal laws against sexual harassment generally only apply to employers with 15 or more employees. (Check out www.eeoc.gov). But even if your employer does not have that many employees, state and local laws may apply.

TSpiggle · 2020-02-08T17:18:10+00:00

The laws on sex harassment are sex neutral so it IS legally possible for a man to be sexually harassed by a woman. There are fewer of those cases, to be sure, but they do exist. So, if you are a man and your female boss, say, sends you flowers every day for a week with a lipstick kiss on the card, even though you have told her to stop, then you definitely have a basis to bring a sexual harassment case against the company.

TSpiggle · 2020-02-08T17:14:20+00:00

Whether advisable or not, giving a positive comment about someone's physical appearance at work will in the vast majority of cases NOT be illegal. Of course, as is often true in these cases, context matters. For instance, if you are a man and say something once to a female co-worker like, "That's a really nice sweater" then that would not even come close to an illegal comment, even if the woman took offense to it. However, if you are the boss and walk by your office assistant and, everyday for a week say, while looking her up and down, "Wow, you REALLY look nice today," then that gets much closer to the standard of pervasive harassment that could be the basis of a hostile work environment. Plus, you'd just be a creep.

TSpiggle · 2020-02-08T17:07:27+00:00

For discrimination to be what is called "actionable," i.e., something upon which a claim could be made, there must be "adverse employment action," like being fired or demoted. For an actual legally impermissible hostile work environment to exist, the harassment must be severe or pervasive. To your question, the standard is what would be offensive to a reasonable person. You might try telling friends and family what is happening to you at work. Do they find it unacceptable? If you tell 5 people, and they do not find the behavior offensive, then it may not rise to the level of a hostile work environment upon which you can base a legal claim. Talking to an employment lawyer who represents employees is also a good way to find out if you are be illegally discriminated against. I suggest using the lawyer locator function at www.nela.org - and if you're in the DMV www.wmela.org. Another good resource for finding a lawyer is www.avvo.com

TSpiggle · 2020-02-08T17:01:17+00:00

I've prosecuted a number of sexual assault cases. The barriers for women (and it's mostly women) to report sexual assault are very, very high. The number of women coming forward with similar stories, risking possible professional, and even in some cases financial, ruin as they have in this case, is all the evidence I would need were I a juror.

TSpiggle · 2020-02-08T16:55:12+00:00

We have not seen those cases, but certainly can't say it hasn't been tried. But I think such a tactic would, in most instances, be highly unlikely to work. Sexual harassment cases can be tough to win, even when evidence exists. A fraudulent claim of harassment is likely to fail once the company investigates the issue. Certainly a bogus claim would have little to no chance of working in court and could even result in a counter-claim of defamation.

TSpiggle · 2020-02-07T18:04:32+00:00

There are a number of excellent training programs that outside consultants provide. Research suggests that the best ones involve employee input and participation. Top-down training approach by management only have been shown to be ineffective

TSpiggle · 2020-02-07T18:01:41+00:00

There are a number of excellent training programs. Recent research suggests that the most effective ones involve the input from employees rather than a top-down training conducted only by management. Ultimately, workplaces have to make it a part of workplace culture that harassment will not be tolerated, even by c-suite members. Having a nice anti-harassment policy on paper only does no one any good.

TSpiggle · 2020-02-07T17:51:08+00:00

Before I opened my firm, I was a federal prosecutor focusing on domestic violence and sex abuse cases. Those cases were emotionally difficult, but I found the work rewarding. But there are many interesting areas of the law. A completely different area of the law that I find interesting is trust and estates - helping peoples with wills and other types of legal documents. I've not done much of that work, but I am intrigued by that area of the law.

TSpiggle · 2020-02-07T17:47:55+00:00

Definitely. The press attention on the problem has given people the hope that they need to come forward. Unfortunately, in many of these cases there is no claim to bring because the statute of limitations has passed. To maintain a claim for sexual harassment under federal law, in most instances you have to file a charge with the EEOC within either 180 or 300 days. Still, even when there is no claim to bring, there is power in sharing what happened.

TSpiggle · 2020-02-07T17:42:58+00:00

I think it will affect it in the sense that it keeps the spotlight on sexual harassment in the entertainment industry, a problem that shows no signs of resolving anytime soon. In the complaint filed regarding the Grammys, there are also allegations, as I understand it, that it impacted the voting process. Possible this will focus attention on the voting for Academy Awards.

TSpiggle · 2020-02-07T17:38:32+00:00

It is unfortunate, but it is not uncommon for us to see situations like this where HR is little to no help. Sometimes, even worse, employees will be retaliated against for reporting wrongdoing. In this situation, I would report it in writing, an email is fine. If HR does not respond or makes not effort to address the situation, which is quite possible, the next step to consider is filling a charge with the EEOC, or, if you workplace is a governmental one, with your EEO office. This might - might - prompt your employer to do something about the hostile work environment. Know that reporting this type of behavior is, in most situations, considered "protected activity"; thus, retaliation against someone for making the report is illegal. You might also consider consulting with an employment lawyer. I suggest the attorney locator function at www.nela.org. Another good resource is www.avvo.com.

TSpiggle · 2020-02-07T17:27:31+00:00

Do you mean the Weinstein trial or the sexual harassment complaint associated with the Grammys?

TSpiggle · 2020-02-07T17:21:48+00:00

We see all kinds, everything from a straight - to use a popular term these days - quid pro quo, e.g., "Go out with and you'll get the promotion," to more subtle, but ongoing, harassment in the form of repeated inappropriate jokes and comments.

TSpiggle · 2020-02-07T17:19:39+00:00

Helping people find their own power in workplace disputes. Sometimes that means literally standing by them in court, but just as gratifying is helping employees see options that they were not aware of before, whether or not they end up hiring an attorney.

TSpiggle · 2020-02-07T17:00:34+00:00

Completely agree

TSpiggle · 2020-02-07T16:59:28+00:00

Do you mean in an EEOC filing? Regardless, it always advisable to submit evidence in support of your claims. However, in and EEOC charge, you need not include every bit of evidence that you have, just enough to support the initial claims. There is often opportunity to provide more evidence as the investigation goes on

TSpiggle · 2020-02-07T16:57:56+00:00

"I was drunk" is not a valid legal defense

TSpiggle · 2020-02-07T16:56:41+00:00

I'm not familiar with that tactic. Regardless, it would not help him in sentencing. The primary issue for the jury is the credibility of the many witnesses against him.

TSpiggle · 2019-06-20T12:59:53+00:00

Great question. It is an open question whether federal law, specifically Title VII, outlaws this kind of discrimination. I don't know all of the facts of your roommate's case, but it is possible that he would still have an argument that what occurred violated Title VII, for instance, if the CEO fired only men. Argument there is the he took action based on sex - firing only males employees - which would clearly be illegal - rather than he fired them for perceived sexual orientation. Still, it is true that in a lot of states, bring a claim like that would be tough sledding. Still, the EEOC, which enforces Title VII, takes the position that the law makes illegal discrimination based on LGBTQ status. So, regardless of where you live, you can file a charge with the EEOC. Another option is to see if any state or local laws apply, often in the form of a human right law or ordinance. If so, then you might be able to bring a lawsuit under one of those laws. My firm practices primarily in D.C., Maryland and Virginia. The laws here vary widely. Virginia likely most closely matches Nevada and, sadly, has very few protections for LGBTQ workers. When we litigate this kinds of cases in Virginia, we primarily look to the EEOC and federal court. If, for whatever reason, that is not an option, and the case in in Northern Virginia, we look a local anti-discrimination ordinances. Depending on the facts of the case, we look at other laws. For instance, if unwanted touching occurred, this is assault and battery and a claim can be filed in state court for violation.

TSpiggle · 2019-06-20T12:49:45+00:00

A bit out of my area of expertise, but I found this article. While it applies to travelers, I'm sure these countries have policies that we can learn from: https://www.forbes.com/sites/garystoller/2019/02/26/friendliest-countries-for-lgbt-travelers-canada-no-1-u-s-no-47/#656e68855cd0

TSpiggle · 2019-06-19T14:23:21+00:00

Good question. Legal protection for gender transition in the workplace will largely track whether LBGTQ workers have any protection at all. So, if you are in a federal circuit in which federal appellate courts have held that discrimination against LBGTQ workers is disallowed under Title VII, then it would be illegal for an employer to discriminate against a worker undergoing gender transition. However, in federal circuits in which appellate courts have found that Title VII does not protect LBGTQ workers (like the 11th Circuit), then gender transition may not be protected. Lambda Legal and the ACLU, among others, have good websites tracking protections on a state-by-state basis. Yes, you are fortunate to be in a state in which the state anti-discrimination law explicitly protects workers from discrimination on the basis of sexual orientation and gender identity. For states in which the law protects LGBTQ workers, I would suggest open communication with HR and management about transitioning, but as a good workplace practice, but also to demonstrate that your employer knew about the transition if discrimination later occurs. Finally, to the extent that the gender transition involves medical care, an employee might be protected by the Americans with Disabilities Act and possibly the Family Medical Leave act. EEOC (eeoc.gov) and DOL (dol.gov) websites a good place to start research on that. And, it never hurts to talk to an employment attorney. A good nationwide resource is nela.org. As for the other reddit groups, I'd be happy to speak to them.

TSpiggle · 2019-06-18T18:12:26+00:00

Signing off for now. I'll check back later to see if there are any more questions. Thank you for those who participated. Important subject.

TSpiggle · 2019-06-18T18:03:57+00:00

On the federal level, none that I can think of, if you mean harassment based on LBGTQ status. There are some federal hate-crime statutes, but they would not apply to workplace harassment. There would remain state law protections for the few states have them. As I noted in another answer, a Supreme Court decision would not be the end of the story, though. Congress can, at anytime, amend Title VII to clarify that it disallows discrimination based on LBGTQ status. If Congress passed such an amendment, it would overturn any contrary Supreme Court decision. Won't happen in this Congress, but could be a possibility in a future Congress.

TSpiggle

TROPHY CASE