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Weinstein Conviction Doesn’t Erase #MeToo Barriers in Workplace

March 12, 2020, 4:25 PM

A central target of the #MeToo movement now faces more than two decades in prison, but in the workplace, some advocates say the scales remain tilted against victims of harassment and discrimination.

Harvey Weinstein’s 23-year sentence for sexual assault marks a watershed moment for the movement, which was sparked in part by claims the Hollywood producer harassed, manipulated, and raped dozens of women over decades. Since late 2017, unprecedented attention has been drawn to harassment, as a wave of victims came forward and high-profile men in a wide array of industries were publicly shamed.

The criminal case stands in contrast to battles playing out in civil court, where a rising number of lawsuits aiming to hold companies accountable for unequal pay and promotion practices, as well as harassment, have been filed.

Barriers remain steep for those fighting to vindicate or eradicate harassment and discrimination, thanks to practices that can insulate companies from liability, contracts that stifle patterns of misconduct, and roadblocks for discrimination class actions, said Kalpana Kotagal, partner with Cohen Milstein Sellers & Toll. This is particularly true for low-wage workers with limited financial resources and diminishing options to band together to avoid retaliation.

“We are all worried about harassment in the workplace, but what we miss is that the barriers that prevent workers are structural ones,” Kotagal said. “Weinstein’s conviction is an important moment, but we need to ask where do we go next? What are the hurdles for workers that experience harassment?”

Dozens of states proposed laws to address harassment in various ways and companies adopted new trainings and reevaluated how to address employee complaints. But these employers are largely left to self-police and invest in these practices, while imbalances still exist in pay and promotions for women and people of color. In surveys, female employees say they don’t think their own workplaces have changed since #MeToo, and many say they still fear retaliation for reporting harassment.

Tools to Stifle Claims

Some of the tools used to keep accusations out of the spotlight include non-disclosure agreements, non-disparagement agreements, and forced arbitration. Some of the biggest U.S. corporations—including Facebook Inc., Alphabet Inc.’s Google, and, most recently, Wells Fargo & Co.—have ended forced arbitration for sexual harassment claims.

Conde Nast and Bloomberg LP both have said they would stop using the agreements to settle harassment-related complaints. Bloomberg’s change came after founder Michael Bloomberg was criticized in a Democratic presidential debate for their usage. He also said he would release three women from nondisclosure agreements with his company. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Non-disclosure agreements shouldn’t be viewed as a fix after harassment’s occurred, because they limit the worker’s ability to explain a departure from a company, or why there’s a gap of employment on a resume, said Gretchen Carlson, co-founder of Lift Our Voices, a nonprofit seeking to abolish non-disclosure agreements related to workplace harassment.

Carlson, a former Fox News anchor who accused former Fox CEO and Chairman Roger Ailes of sexual harassment, has been outspoken against these contracts.

“We are never, ever going to fix this problem by quoting lawyers saying that NDAs are good for women,” she said. “Women just want to work.”

The stakes are high for low-wage workers or victims of harassment or discrimination, particularly those with pre-dispute contracts as a term of employment. A high-profile harassment case in 2018 filed in Washington federal court focused on a provision in a contract required for workers at celebrity chef Mike Isabella’s restaurant chain. The clause allegedly said the workers—many of whom made $3.33 an hour—would face a $500,000 penalty if they released confidential information in “the employee’s lifetime.”

The suit, settled before a court ruled on whether the agreement could be enforced, alleged pervasive sexual harassment against women employees. Yet the agreements are still common in settlements and difficult to track publicly.

Gender Parity in Focus

The #MeToo movement expanded beyond harassment and brought new scrutiny to discrimination in the workplace, as well, including the roadblocks in place to ensure that women can get relief as a group. The stakes are evident in a case before the U.S. Court of Appeals for the Ninth Circuit, where former and current Microsoft Corp. employees are trying to revive their class action citing promotion and pay imbalances.

It’s among many ongoing lawsuits against major companies, including law firms, tech companies, and accounting giants, that allege unequal treatment and pay. The U.S. Supreme Court’s 8-year old decision in Walmart Stores, Inc. v. Dukes casts a long shadow over these disputes because it created a higher standard for groups to proceed as a class. This hits low-income workers who fear retaliation if they can’t proceed as a group particularly hard.

Another Supreme Court case in 2018, Epic Systems Corp. v. Lewis, clashes with the idea of women joining as a group. The ruling upheld class action waivers in arbitration agreements, despite federal labor law rules that say workers have a right to complain about workplace conditions collectively.

The Federal Arbitration Act also proves powerful against new state laws that take aim at arbitration. States proposed these laws to limit the practice, similar to NDAs, but in New York a judge said the federal law preempted the state in a case against Morgan Stanley. A recent California law aimed at limiting arbitration also has been challenged.

Bringing a sexual harassment claim is difficult for employees “at every turn,” said Angela Cornell, the director of Cornell Law School’s Labor Law Clinic. It’s especially costly for low-wage workers to sue their employers on their own, she said, and the Epic Systems ruling further undermines their rights to bring disputes to court as a group.

“You know that five other women have also been subject to sexual harassment by the same supervisor, you can’t join your case with them,” she said. “This is a major impediment to the vindication of their rights.”

Sex and harassment claims to the Equal Employment Opportunity Commission, the agency tasked with enforcing federal anti-discrimination laws, climbed in the #MeToo era. The agency resolved 48 harassment lawsuits last fiscal year, according to its 2019 Annual Performance Report. It also ensured 63% of federal agencies have compliant anti-harassment policies, the report stated.

The EEOC primarily used litigation and partnerships with other agencies to combat sexual harassment, but its own guidance on the issue has been on ice since 2017.

Not a ‘Flash in the Pan’

Companies have come to take harassment seriously, and see it as a way to protect their reputation and ultimately bottom lines. There are still areas where unconscious bias and lax training techniques fail, and it remains a problem that some powerful men on Wall Street and elsewhere fear being alone with subordinate women to avoid accusations.

“I have no doubt that #MeToo is not a flash in the pan,” said Chai Feldblum, director of workplace culture consulting at Morgan, Lewis & Bockius. “I think if we have learned anything over the last two and a half years, it’s that attention is being paid to what is a deep-seated structural problem. It’s no longer dependent on one news story or another. I do think it will take time to make the changes to affect and fix structural problems.”

Feldblum, a former EEOC commissioner who co-authored the agency’s guidance on harassment, said that companies are realizing harassment is bad for business, even if they’re never sued. She said laws that mandate harassment training are good steps, and more companies are taking those measures seriously, including bystander training, improving reporting mechanisms, and disciplining the perpetrators.

That work requires companies to invest before there is an obvious issue, she acknowledged. It also must address all forms of harassment and bias that could bubble up in the workplace, and not solely focusing on women.

“The biggest barrier is leadership understanding that they have to commit the time and resources into preventive mechanisms,” Feldblum said. “When push comes to shove, they have to decide to put the money in. That’s often tough. If it’s not required, it’s just hard.”

Companies are also learning they should focus on diversity at the top and recruit and help female and minority workers to combat unconscious bias, said Ivy Kagan Bierman, partner at Loeb & Loeb, who advises companies on culture and best practices.

“That is one of the biggest challenges for companies. Sometimes when I go in, they will say to me, look we treat everyone fairly,” she said. “Where you have your issues is that you have predominantly white males on the chart. The #MeToo movement is not just about the harassment aspect, it’s also about equity.”

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com