Laura Noble Sits Down With Emily Martin, National Women’s Law Center’s General Counsel at the 2018 Annual NELA Convention in Chicago; Pt. 2

 

Our attorneys recently attended the National Employment Lawyers Association (NELA) annual conference in Chicago. This year’s conference featured breakout sessions on “#MeToo: Hot Topics and Emerging Trends in Harassment Legislation,” “Don’t Be Afraid to Lose,” and the indispensable “Year in Review: Significant Developments in Employment Law.”

 One of the panelists for the “#MeToo: Hot Topics and Emerging Trends in Harassment Legislation” discussion was the dynamic Emily Martin, General Counsel and Vice President for Education for the National Women’s Law Center. I sat down with her for an informal discussion on her incredible

career, what drives her and the NWLC and what still needs to be changed as we move forward.

 

Part two of my interview with Martin continues below:

 

Noble: I have railed against Title VII in private and public sectors for a while. For the National Women’s Law Center, if you have to target three or

Laura Noble (left) & Emily Martin at the 2018 NELA Conference in Chicago, IL

five things that you can change – What are you looking at?

Martin: I would love to hear actually your input because this is the sort of moment where we are answering that question.  It’s some of the things that we have been talking about with lawmakers and with our coalition partners. Our coverage … not everyone is covered by Title VII. There are big chunks of employees who are not covered, which, I think is shocking to the person on the street – that federal law doesn’t have anything to say for a sexually harassed person who works for a company with only ten employees.

 

Noble: If you are in the state of North Carolina there is no state law. There is literally no way for you to get redress if you are sexually harassed and then fired for complaining about it.

Martin: Exactly.

 

Noble: In North Carolina, if you work for an employer with less than fifteen employees…it is shocking.

Martin: People are shocked when they learn that is the case. By the way if you know of individuals who might want to talk to the press about how they have no remedy, there are journalists who would love to tell that story.

 

Noble: I will definitely keep that in mind.

Martin: Independent contractors except for a very few states…you can call the police if there is a criminal issue and we can work on your tort law case, but the web of protections that we have created to address sexual harassment doesn’t cover you. We also have been thinking a lot about how to bring more transparency to the issue of harassers so employers aren’t empowered to impose secrecy and keep serial harassers on the job forever, while finding victims of secrecy over and over again. When we do things on the front-end of nondisclosure agreements that appear to reach harassment allegations – they should be explicitly invalid. I think the issues around nondisclosure and settlement are more complicated but I don’t think the status quo is the right answer. So, we have been talking to a lot of practitioners and lawmakers about ways to shift that balance, so, the confidentiality can’t be part of the price of any sort of remedy for victims of harassment. There are creative ideas that people in the state and federal level are working through about ways in which employers have to disclose settlements. For example, Senator Harris in California and Senator Murkowski introduced an act, a month ago or so called “EMPOWER Act” which among other things would require publicly traded companies to disclose to shareholders number of harassment settlements and judgements whether or not they were against the same person in the company. To just bring some sunlight even into these private settlements.

There are other interesting models being kicked around … a state enforcement agency that would have to sign off on a settlement even prior to litigation. Is there a third party who could set up a red flag if the same employer is settling the same thing over and over again? Is there some ability to say, “there seems to be a problem here”? We have also been thinking about how to increase accountability that includes ideally getting rid of damage caps on Title VII. I don’t think there is any principled argument for them. It is solely a matter of a compromise that was worked out a long time ago. Those numbers have not budged and that leads to a lot of employers thinking “well what is the risk really?”

 

Noble: For me as a practitioner, my concerns are onerous administrative burden of Title VII so having to go through underfunded and overworked government agency makes no sense to me when I am trying to sue someone for stealing my patent. I don’t have to do that – I can just go directly to federal court and have that access to justice. I think EEOC has a place. I can certainly see it do the work for pro se individuals or for larger collective actions, but for most individuals who have a plaintiff’s attorney…

Martin: This is a place you mark time until you get your Right to Sue Letter.

 

Noble: Yes…One, that delay only benefits the defendant employer. It does not help our clients at all. Two, the damage caps make no sense. Three, federal judges’ ability to dismiss a case on a standard of severe or pervasive should be a jury issue – that kills a high percentage of those good cases. Even after they get through the lengthy process of finding the lawyer that practices federal law, and getting through the EEOC process, and filing your complaint under federal law (along with the larger fees associated with litigation), going through all the litigation, you may end up getting to a judge who hasn’t been in a private employment law case for many years, having to decide what kind of conduct, usually against a woman, is severe enough to affect their workplace.

Martin: We have seen that sometimes even judges don’t get trained in complying with any sort of anti-harassment rules. Not only is their own frame of reference often decades out-of-date and skewed by the fact they were possibly a partner at a large law firm in a powerful position. They don’t even get what you would learn from periodically having to sit down and think about how this would look like in your workplace and what are the standards that are appropriate there. I agree that another important piece of the puzzle is trying to reset the ways in which the “severe and pervasive” standard has been applied in so many courts to be a hurdle…it can be incredibly difficult because of the way some courts parse each individual situation and say, “well that wasn’t much and this didn’t happen till a month later, so this is a whole different thing.” Frankly, I am still thinking about how the legislative language is to fix that problem. I think the key issue is that we need to make harassment laws actually remedy the harms.  The rest of the world who hasn’t had to be a plaintiff in these cases, assumes that it does.

 

Noble: Right, right… and the public awareness …I can’t tell you how many times I’ve had a client come in and having to explain to them “look, we can try to do this, but you are probably not going to meet the standard.” They are shocked and they say “Wait, this horrible thing happened to me and I’m having trauma and you are telling me the judge is going to decide that it does not?”

Martin: And it is so divorced from the public debate, which is – “well we’ve gone so overboard that a hug is unlawful in some way.”  In fact, it is really, really hard to get some sort of legal remedy for harassment – it’s very divorced from where people think the current conversation is.

 

Noble:  There is a media problem too, right because they are attracted to these big powerful men cases and then they leave the perception that all the victim has to do is raise our hand and say, “ten years ago this bad thing happened to me and then money rolls in and the corporation fires him and everybody gets training” and that just doesn’t happen in the private sector. The exact opposite happens – these days she gets fired. I keep saying it over and over again.

Martin: One of the other things the TIME’S UP Legal Defense Fund does… is communication support. To help individuals tell their stories publicly and we try to do that sort of public education through individual stories of what harassment looks like, what are the dynamics, what does it mean for the individual who experiences it, so that people have better understanding of what this looks like and what are the real obstacles.

 

Noble: That’s great.  That’s really great.  So, my last question… you are being honored tonight for your work at the gala… what drives you professionally?

Martin: I am incredibly lucky to get to do the work that I do. What drives me is righteous indignation and anger.  We need to fight for the people who have the fewest resources to fight for themselves. What else drives me is I think that I am more hopeful on some days than others. Overall, I think there is still, even given the really frightening context in which we find ourselves, there is tremendous reason for hope as we have seen through the women’s marches and the outpouring support for TIME’S UP Legal Defense Fund. We are seeing all the women running for office this year. There is opportunity to use that energy to make lasting progress. That also keeps me going.

 

Noble: Keeps me going, too. Thank you so much for sharing part of your evening with me and for sharing your thoughts on these important legal issues affecting woman in the workplace.

 

 

Read Pt. 1 of Laura Noble’s Interview with Emily Martin here

 

 

Posted in Noble News |

Laura Noble Sits Down With Emily Martin, NWLC General Counsel and Vice President for Education and Workplace Justice, 2018 NELA Annual Convention, Chicago

Our attorneys recently attended the National Employment Lawyers Association (NELA) annual conference in Chicago. This year’s conference featured breakout sessions on “#MeToo: Hot Topics and Emerging Trends in Harassment Legislation,” “Don’t Be Afraid to Lose,” and the indispensable “Year in Review: Significant Developments in Employment Law.”

One of the panelists for the “#MeToo: Hot Topics and Emerging Trends in Harassment Legislation” discussion was the dynamic Emily Martin, General Counsel and Vice President for Education for the National Women’s Law Center. I sat down with her for an informal discussion on her incredible career, what drives her, the important work at the NWLC and what still needs to be changed to affect workplace harassment.

 

Noble: Emily Martin, can you give us a brief background on your career and how you ended up at the Women’s Law Center?

Martin: I am really lucky in that I am the one percent of attorneys who went to law school saying, “this is what I am going to do and I ended up getting to do that thing.” I went to law school with the thought that I wanted to do women’s advocacy and I wanted to do impact work and basically, that is what I have done.  I was a fellow with the National Women’s Law Center and then I was at the ACLU with the Women’s Rights Project for about eight years or so, where I mostly did litigation on the range of issues including employment, education, and accommodation issues. In 2009, it was the beginning of the Obama administration, so I went to D.C to be part of that exciting moment. I was ready for

Laura Noble (left) & Emily Martin at the 2018 NELA Conference in Chicago, IL

a shift out of litigation into something else.

I’ve been at the National Women’s Center since then. I have been doing mostly, but not only, policy work on different sets of issues, but much of my time has been spent on workplace issues for women  such as pregnancy discrimination and unequal pay.  In the last year, there has been a lot of harassment work including building our legal network for gender equity and implementing systems that make the TIME’S UP Legal Defense Fund work.

 

Noble: Is the TIME’S UP Legal Defense Fund one a kind?

Martin:  It is certainly at this scope and size. We are aware of some very small funds that provide some support for costs on the plaintiff’s side, usually on impact cases, but the availability of fee support as well as costs at this scale, and without it being a profit-making venture, is pretty unique.

 

Noble: It is remarkable, particularly in these times.

Martin: For people in organizations like mine, one of those silver linings of tough times is the development opportunity. There is a lot of work that needs to be done, but at least there is also some real commitment from people and funding to help make that happen.

 

Noble: What do most people not know about the Women’s Law Center?

Martin: If you are not in D.C. most people probably don’t know us period!  We have been around for more than forty-five years, and for much of our time we have been a very D.C.-based and focused organization and most of our policy work historically has been federally focused. Over the past few years, we have definitely been more purposefully engaging in state policy work across the country, making investments in making sure we have the staff and the ability to do that work and build those coalitions and relationships in a meaningful way.

 

Noble: What are some of the accomplishments of The National Women’s Law Center you are most proud of?

Martin: The National Women’s Law Center has been around a long time.  It has been engaged in work on The Pregnancy Discrimination Act of 1978, the Civil Rights Act of 1991, and the Davis case where the Supreme Court held that damages are available for student on student sexual harassment under Title IX.   There have been a lot of successes over The National Women’s Law Center career.

 

Noble: What are you most proud of about your work at The National Women’s Law Center?

Martin: During my time here, I have been most of proud of having been part of the issue of pregnancy accommodation and ensuring that employers provide the same sort of accommodations that are needed for pregnancy that they provide if accommodation is needed for disability. I am especially proud that this work has led to success not just in blue states, but in red states as well. South Carolina just passed a pregnancy accommodation law that we were deeply involved in drafting. West Virginia and North Dakota passed pregnancy accommodation laws and these states have been part of the new wave of law-making around this issue. That has been really affirming to see progress in a variety of different places bringing together people from a lot of different ideologies. And, obviously, the TIME’S UP Legal Defense Fund is a big moment for the National Women’s Law Center. It is a $22 million initiative, which really gives the opportunity to make sexual harassment law better, as well as making representation available for women, and possibly men, who would not otherwise have been able to have attorneys.

 

Noble: What are your particular challenges now at the Women’s Law Center?

Martin: Well, you know it is a challenging federal policy environment. Congress is hard. The administration is hard and the Supreme Court is also difficult. I think the challenges are finding ways to build progress in the face of a lot of deeply polarized oppositions. Whether that is with states, including states that are not necessarily progressive, but where maybe there is not the same deep distrust and dysfunction as at the federal level. Whether it is  trying to create new relationships with corporate leaders, where there are corporate voices saying, “We think this is what we need to do and we are going to do it,” it is building the seeds for longer-term progress.  We are doing work now with some of our champions in Congress to help craft the next generation of sexual harassment laws. It is going to be the model that many states hold themselves to. It is going to be the thing that people can organize around. And, in the long term, I believe it is going to be a legislative change that will happen.

 

Noble: Who are you working with on that?

Martin: Well, it is still underway. There are definitely a variety of senators and house members who are really committed to using this moment to make sure that the goals that we are pushing for are goals that will really make a difference.

 

Part two of our discussion with Emily Martin will appear next week online. – LN

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Strong Brew: National Employer takes a shot at Facing Bias

If you are bummed your local Starbucks is closed today for anti-bias training, consider this uncomfortable, inconvenient feeling as a reminder of the part we all play in the cultural epidemic of racial and sexual harassment and discrimination our country is struggling to come to grips with.  This is a very small price for coffee consumers and the company to pay,[1] but it is a great leap forward in terms of raising awareness and investing in an ounce of prevention.  Some are dismissing today’s effort as a publicity stunt, and it is definitely keeping this coffee company in the news, but even if it is designed to bolster their status, this is a positive development and other companies would do well to follow suit.

As Employment lawyers, we deal with the unfortunate, and sometimes, unintentional consequences of unconscious or implicit bias every day.  This is not a problem that can be solved with one training session, but studies[2] show that increasing awareness of bias, coupled with action-oriented strategies and thoughtful practice in confronting and addressing it, are effective steps in

Jennifer Bills – Attorney, The Noble Law Firm

working towards making American workplaces safer for women, older people, people of color, LGBTQ individuals, people with disabilities, and others.

Whether waiting at a table at Starbucks[3] or applying for a job or promotion as a bank executive, people of color are frequently denied equal opportunities to participate as full citizens in the United States.[4]  Some individuals face unlawful arrest or worse.[5]  The clients we represent suffer pay disparities,[6] hostile and discriminatory work conditions, harassment, denials of promotions, or even being pushed out of the workplace entirely, sometimes to accommodate the unconscious bias, or alleged comfort, of their white co-workers.  We also advise Employers who, like Starbucks, want to make efforts to improve their business environments.

 

Implicit Bias in the Workplace

When someone does not act in a neutral manner, but with a preference for or an aversion to a group of people, they have bias.  Implicit bias is when a person has thoughts, feelings, attitudes and perceptions, without being aware or conscious that they are affecting one’s behavior and actions.  Bias leads to different treatment when actions are based on assumptions about people based on their membership in a group or a single characteristic, such as their race or sex, accent or political party affiliation.  Although biases negatively impact our communities and workplaces, only certain biased conduct is subject to legal limitations.

 

Impact vs. Intent

In 2018, many Americans want to believe that we are not deliberately acting upon racist stereotypes or prejudices, but sadly, the reality for too many people of color belies this wishful thinking.[7]  All too often, there is a disparate impact even when no negative intention is present.  When enough power is behind implicit bias, the consequences can be dire.  The impact of bias and victims paying the ultimate price has been making headlines spurred, in part, by the Movement for Black Lives.[8]  In the employment context, the #MeToo[9] and #Times Up[10] movements have brought increasing awareness to workplace gender bias, but the problem of combatting discrimination remains elusive.  For employers, managers, and supervisors, the power of implicit bias can mean the difference between keeping or losing a valued employee and impacting someone’s career.[11]  Some courts are starting to recognize implicit or unconscious biases as a basis for discrimination,[12] so there is no benefit to putting our heads in the sand any longer or tolerating the status quo.

To understand examples of implicit bias, imagine the supervisor who, after years of observing stellar performance by his lone female engineer, just finds her a bit too aggressive to work with clients and passes her over for a promotion.  Consider the hiring manager, who reviews applications from five equally-qualified candidates, and picks the one from his neighborhood, or the same college, or with a name that sounds familiar rather than difficult to pronounce.  Then there’s the young, Caucasian sales representative, who keeps remarking that he thinks his African-American co-worker is so “articulate” and cannot understand why his colleagues of color do not want to work with him.  Conscious awareness of the potential for biases to show up in the workplace, and practicing different behaviors are good antidotes.  In other words, training, training, training.

 

What is an Employer to do?

In order to reduce the unintended and harmful consequences of implicit biases in the workplace, Employers can take straightforward and relatively simple proactive, preventative actions to begin to address this serious and complex problem, minimize risks of liability, and assure a fairer environment for all employees.

 

Noble Law’s Tips for Employers to Address and Reduce Bias

  1. Acknowledging the problem is the first step to addressing it. Name it; talk about it; and show Employees that you want to discuss it.
  2. Schedule Implicit Bias (anti-discrimination, harassment, and retaliation) Training in advance and on a regular basis. Training on policies and expectations should be a part of onboarding all new employees, and it should be repeated on an annual basis.  Training should be interactive, rather than passive.  The opportunity for people to practice identifying improper motives and interrupting bias is key to success.
  3. Update personnel policies, investigation and complaint procedures, and ensure that managers and supervisors know how to respond appropriately to incidents and complaints.
  4. When an Employee reports an incident or makes a complaint, place her on administrative leave while the Employer conducts an investigation.
  5. Conduct a prompt, thorough and objective investigation to determine whether the Employee violated company policies.
  6. If the Employer determines policies have been violated, the employee should be subject to discipline up to and including termination.
  7. Make it clear to all employees that retaliation will not be tolerated, and pay attention to early warning signs. Encourage employees to come forward about their own experiences and to report behaviors they witness.

 

Employers can make a huge impact in addressing, preventing and redressing implicit bias and discrimination and reduce their potential liability!  Employees can make a difference by speaking up and not remaining silent bystanders.

Contact the Noble Law Firm for training, advice or a consultation on your workplace rights and responsibilities.

 

[1] http://money.cnn.com/2018/05/28/news/companies/starbucks-closure-anti-bias-training/index.html (Starbucks claims training will cost tens of millions.)

[2] https://hbr.org/2017/04/dont-give-up-on-unconscious-bias-training-make-it-better

[3] https://www.cnn.com/2018/04/17/health/implicit-bias-philadelphia-starbucks/index.html

[4] A recent Harvard Business Review study confirms racial discrimination stubbornly persists. https://hbr.org/2017/10/hiring-discrimination-against-black-americans-hasnt-declined-in-25-years

[5] https://www.aclu.org/blog/criminal-law-reform/reforming-police-practices/keith-lamont-scotts-disability-may-have-gotten

[6] The Equal Employment Opportunity Commission (“EEOC”) and Bureau of Labor Statistics continue to document persistent pay disparities by race and other factors.  African-American ($639) and Hispanic/Latinx ($594) employees continue to earn considerably less than Caucasian ($816) and Asian-American ($953) workers. https://www.bls.gov/opub/reports/race-and-ethnicity/archive/labor-force-characteristics-by-race-and-ethnicity-2014.pdf

[7] https://www.npr.org/sections/codeswitch/2017/10/25/559015355/how-black-americans-see-discrimination (92% of Black Americans recently surveyed say discrimination against African-Americans is alive and well in the United States.); https://www.hsph.harvard.edu/news/press-releases/black-americans-discrimination-work-police/ (At least half of African-Americans surveyed reported experiencing discrimination themselves.).

[8] https://blacklivesmatter.com/pressroom/blm-sacramento-releases-statement-on-the-murder-of-stephon-clark/

[9] https://metoomvmt.org

[10] https://www.timesupnow.com

[11] http://www.newsobserver.com/news/local/counties/durham-county/article210735884.html

(Customer complaint about employee’s rap music leads to firing and then bold company response.) http://www.newsobserver.com/news/local/article210946959.html  (Company leaves University to preserve the company’s “brand independence without conditions.”)

[12] See, e.g., Woods v. City of Greensboro, 855 F.3d 639, 652, 2017 U.S. App. LEXIS 8011, *29-30  (2017) (There is… a real risk that legitimate discrimination claims, particularly claims based on more subtle theories of stereotyping or implicit bias, will be dismissed should a judge substitute his or her view of the likely reason for a particular action in place of the controlling plausibility standard.”)

Posted in Noble Notes |

Laura Noble discusses challenges facing sexual harassment survivors in the Carolinas with WBTV

May 15, 2018

In the WBTV article, “Why many women aren’t able to file sexual harassment lawsuits in North Carolina,” Laura Noble discusses the legal road blocks many women in the state face when trying to report sexual harassment.

Laura Noble with Molly Grantham on WBTV

Since the #MeToo era began, the Noble Law Firm has seen a 500% increase in calls from women claiming sexual harassment in their workplace. Despite making the decision to report the harassment, though, there are often limitations in the law that prevent these women from taking legal action.

“Awareness is there,” Laura told WBTV. “The problem is that state laws – in particular, the Carolinas, haven’t kept up with where I think the national mindset is in the workplace.”

Laura discussed two major challenges facing women in North Carolina: the six-month statute of limitations on filing sexual harassment claims under Federal law and the fact that North Carolina has no specific state law against sexual harassment.

Laura noted sexual harassment is, in fact, not actually about sex, but rather about an assertion of power.

“Study after study has shown it’s based on power,” she said. “CEO’s of companies don’t usually get harassed.

Noble offered advice to any woman who feels she is being sexually harassed in the workplace. She encourages them to document everything, tell a trusted ally or mentor and follow the guidelines set in employee handbooks.

“And remember,” she emphasized. “The time for filing your claim is only six months.”

 

Read the full WBTV article here.

Posted in Noble News |

Laura Noble at Pink Petro’s HERWORLD2018 Energy Forum

Laura Noble will be at the Pink Petro #herworld2018 event in Houston, TX! Houston area friends should stop by the Norris Conference Center March 7th – 8th to participate in an innovative and inclusive learning event that addresses new frontiers in the energy industry where business, workforce, innovation and geo-policy intersect.

Go to Pink Petro TV to listen to a global think-tank discuss the future of the energy industry. #GRIT18 #ENERGYPROUD #TheNobleLaw

Laura Noble’s Pink Petro speaker bio:

“Laura Noble is managing partner of The Noble Law Firm, a firm who has represented thousands of employment law and sexual harassment cases. She is a former New York City prosecutor and workplace incident investigator. She is an advocate for updating federal and state laws regarding sexual harassment to be defined for modern times.”

 

Posted in Noble News |

Laura Noble Named a North Carolina Super Lawyer for the Second Year In a Row

 Chapel Hill, N.C., February 1, 2018 – For the second year, The Noble Law Firm’s Managing Partner Laura Noble has been named a 2018 North Carolina Super Lawyer, recognized as one of the Top Rated Employment Litigation Attorneys in the state.

The annual list is published by Super Lawyers, a rating service of outstanding lawyers in North Carolina who have attained a high degree of peer recognition and professional achievement. Super Lawyers selects attorneys using a patented multiphase selection process which combines peer nominations and evaluations with independent research. Only five percent of the state’s top attorneys are selected to be awarded the distinction of Super Lawyer.

 “It is an honor to be named among such accomplished North Carolina attorneys and I am very grateful to be recognized by my peers,” Laura said. “For more than 20 years, I have dedicated my career to providing clients with exceptional personal and powerful representation, navigating complex issues into potential solutions for each and every one of them.”

 

Learn more about the Super Lawyers selection process here.

Posted in Noble News |

The Noble Law Firm’s Josh Kalish Named to NC Lawyers Weekly’s 2017 “Unsung Legal Heroes”

The Noble Law Firm’s Director of Marketing and Client Services Josh Kalish has been named to North Carolina Lawyers Weekly’s Class of 2017 of “Unsung Legal Heroes,” a recognition program honoring law firm staffers across the state for their dedication to duty. Josh was recognized as a Legal Marketing Professional honoree, one of eight professional categories the new program celebrates.

As part of a special section for the magazine’s December special issue, North Carolina Lawyers Weekly’s Tiara Benfield spoke with Josh to learn more about his career and professional accomplishments. Asked why he chose to pursue a career in the legal field, Josh shared he finds it very rewarding to help clients navigate legal processes to resolve workplace issues. “In my opinion, employment law offers a nice balance of solving client issues in the workplace with both creative business solutions and legal remedies” he added.  With the exponential increase of calls into the Firm by victims of sexual harassment and assault, in large part due to #metoo and #timesup movements, it is very rewarding to be able to offer top-tier legal representation and counsel to those in need.

Josh began his career at the American Bar Association in Washington, DC, working on public policy projects with three different attorneys. “I learned that coming straight out of college, you have to be humble and learn the basic office skills required to be successful in a professional environment,” Josh said. “I also learned the importance of good project management and authentic people skills to create productive teams.”

Reflecting on his work with the Noble Law Firm, Josh points to the “Client Journey Blueprint” as one of his proudest professional accomplishments. “We know that some people dread having to deal with a law firm, particularly when other things in their life are not going well,” he explained. Josh interviewed several clients, past and current, to learn from their perspective of working with the Firm throughout the lifecycle of their legal matter, identifying the key “moments” in these interactions that defined their experience.   Armed with this first-hand knowledge, Josh created unique internal service level agreements that set the standard for how the Firm and its attorneys engage with and support clients. “Our reward is that our clients tell us that working with us doesn’t feel like a ‘typical’ law firm,” he added.

Josh joined The Noble Law Firm full-time in 2015, after several years in an advisory capacity, to lead the development of Digital Capabilities.  He is currently Director of Marketing and Client Services where he leads the outreach efforts to promote the Firm’s growing legal services offerings.

 

Look for Josh’s full responses in North Carolina Lawyers Weekly’s special issue on December 25, 2017.

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Golden Globes: Time Is (Not) Up (Yet)

The 2018 Golden Globe Awards highlighted the national movement against sexual harassment with a multitude of actors and activists speaking out on the topic. Celebrities, many of who appeared in solidarity wearing black, seized on the movement’s momentum, pledging meaningful change.  The #metoo movement and the resulting “Time’s Up” initiative have underscored the urgency of the movement and seem to underlie an opportunity to define and desist sexual harassment in our country.

Laura Dern eloquently described a future where “we teach our children that speaking out without the fear of retribution is our culture’s new North Star.”  Oprah Winfrey said, “For too long, women have not been heard or believed if they dared to speak the truth to the power of those men. But their time is up. Their time is up.”

Inspirational as these speeches were, the cultural movement is greatly outpacing legal reform. Oprah told the Globes audience how, as a child, sitting on a linoleum floor in 1964 in her mother’s kitchen, she watched Anne Bancroft present the award for best actor at the Academy Awards to Sidney Poitier. Last night, as I watched the awards show and impassioned speeches with my own young daughter, I was well aware that 1964 was also the year that Title VII was created. Title VII is more than 50 years old and badly needs to be updated to reflect our society’s current challenges in defending against discrimination and harassment. Today, many states do not even have laws expressly prohibiting sexual harassment, much less providing a clear definition of and consequences for the courts to consider. Until these changes are made, time is “not up.”

In a speech that has since spurned calls for a presidential run in 2020, Oprah also said, “Speaking your truth is the most powerful tool we all have.” Speaking truth is, indeed, one of our core requirements for our judicial system to function equitably. However, noble as the truth maybe, the true power of justice comes from consequences and remedies prescribed by law, both as a way to establish our cultural morality and to provide a deterrent to the offensive actions. Absent a comprehensive, contemporary body of laws defining and governing sexual harassment, at both the federal and state levels, I’m afraid our time has not (yet) come.

 

Laura Noble is Managing Partner of The Noble Law Firm, with offices in Raleigh, Chapel Hill and Charlotte.  The Firm provides forward-thinking and trusted counsel to victims of sexual harassment and discrimination in the workplace.  www.thenoblelawcom 

Press Contact:  josh.kalish@thenoblelaw.com. 919.724.9000

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Listen to Laura Noble defend victims of sexual harassment and rape on Smerconish today (11/2/2017)

On the disturbing new topic of “Weinsteining”, Laura Noble makes it clear that “Sexual harassment is legally defined.  It is not a wink or a one-off flirt. It has to be either severe or pervasive.”  Sexual harassment victims are often not taken seriously by HR, are often demoted, professionally side-lined or fired.  As an attorney that represents victims of sexual harassment and assault, Laura Noble warns that “Weinsteining” may actually highlight the potential for creating an atmosphere that “makes women go further underground”.

To hear the whole conversation, click here:

 

Attorney Laura Noble on “The Michael Smerconish Show” on POTUS Sirius XM

Posted in Noble News |

Sexual Harassment: 10 Things You May Not Know

About the Author    

Laura Noble is an Employment Attorney and Managing Partner of The Noble Law Firm, with offices in Raleigh, Chapel Hill and Charlotte. NC.  She is a former Assistant District Attorney in Brooklyn and has defended victims of sexual harassment and rape in the workplace. 

Laura Noble is available as to serve as legal expert on workplace sexual harassment issues to local and national media outlets. 

 

OVERVIEW

I’m an employment attorney, and I represent people, mostly women[1], who were sexually harassed at work.  While the current news stories capture our attention with salacious facts about famous people, I write this hoping to give attention to the other stories. The stories of women who will never be on TV and who are not receiving ample six-figure settlements must be told. Here’s what you may be missing about sexual harassment and assault at work.

 

  1. Sexual Harassment Including Physical Assault, is Not Rare

I have represented women who have been verbally accosted, physically assaulted, temporarily imprisoned and raped at work.  What did these women experience? Things like:

  • Being forced to commit fellatio to prevent job termination;
  • Being asked for sex at the job interview;
  • Being forcibly trapped in a small room by a harasser demanding sex before allowing release;
  • Being sent pictures of male genitalia;
  • Having breasts groped by a drunk boss,
  • Having a co-worker bang a hotel door room for 30 minutes demanding sex;
  • Being forced to listen to a boss’s graphic accounts of fantasized sex acts.

I won’t get into to the details of the rape cases, but they are as shocking and horrifying as you can imagine.

Outraged and surprised reactions to the recent spate of stories about high-profile men are frankly disappointing.  If anyone had been paying attention, they would know that women being sexually harassed and assaulted at work is not a rare occurrence. The #metoo campaign provides anecdotal support that sexual harassment at work is commonplace. Hard data is more difficult to come by. Researchers have concluded that sexual harassment and sexual assault at work are both extremely underreported.[2]  Given this, studies that conclude only 38-40% of women have experienced sexual harassment in the workplace should be viewed critically,[3] however, even that number should make our hair light on fire.  Instead, unless someone famous is involved, we speak little about it in public or at work.

Sadly, there are no recent, reliable statistics about sexual violence at work.  However, the most recent data from the Bureau of Justice Statistics estimated there were more than 43,000 workplace rapes and sexual assaults a year.[4] Worse still, there is a legal black hole that many rape victims fall into when they try to pursue remedies for rape at work.  Many jurisdictions around the country limit recovery for rape at work to a workers’ compensation claim for recovery of their rape “injuries.”[5]  This means the victim cannot sue the employer for negligence around the unsafe workplace conditions where the rape occurred nor recover for significant emotional distress damages. Even if a rape victim is allowed to sue the employer directly, often courts will dismiss the claim because the rapist was not acting “within the course and scope of employment.” In other words, the case may be dismissed if the company shows that the rapist was not carrying out company business, or otherwise acting on the employer’s behalf when he raped the employee.  Without the ability to hold companies responsible, sexual abuse victims are forced to seek compensation from the perpetrators themselves, most of whom do not have the resources or insurance to compensate the victims fairly for the injuries that they caused.

 

  1. All Industries and All Positions are Susceptible to Sexual Harassment & Assault

Sexual harassment transcends occupational and professional categories, age groups, educational backgrounds, racial and ethnic groups, and income levels. For example, one-third of female physicians have reported that they have been sexually harassed at work.[6]  My clients have ranged in race, national origin, sexual orientation, education, and age.  I have had low wage clients in blue collar jobs, and extremely educated highly compensated women all in the unenviable group of “women harassed at work.”

I do recognize that specific groups of women are particularly vulnerable to sexual harassment. The European Commission has noted that “[d]ivorced and separated women, young women, new entrants to the labor market, women with irregular or precarious employment contracts, women in non-traditional jobs, women with disabilities, lesbians, widows, women working in informal sectors of the economy, migrant workers and women from racial minorities are disproportionately at risk.”[7]  Reading that list over, it makes me realize that actually few of us in the workplace are not “at risk.”

 

  1. Sexual Harassment and Violence is a Form of Gender Discrimination

It has been more than 50 years since the U.S. passed the groundbreaking federal law prohibiting gender discrimination and sexual harassment at work.[8]  Yet, gender discrimination still rears its ugly head in obvious ways. Some examples:

  • A male partner at a law firm tells a female associate that she can’t try cases while pregnant because he claims she will get crazy with hormones;
  • A woman is selected for a layoff because “she doesn’t have a family to support” like her male counterparts;
  • A man is hired for the same exact role as the woman employee, yet he is paid $30,000 a year more in salary.[9]

What do fewer job opportunities, lower wages, and demeaning sexist attitudes have to do with sexual harassment?  If it’s not apparent, the World Health Organization sums it up nicely, “gender inequalities increase the risk of violence by men against women and inhibit the ability of those affected to seek protection.”[10]

 

  1. Why They “Give In” or Why They Don’t “Just Leave.” Part 1

There is always someone who responds to sexual harassment conversations with a line of questioning that goes something like this: “Why do women put up with harassment or even, in some cases, acquiesce to unwelcome sex acts?  Why not just say no? Or leave the job?” I will break this down in parts because I really want people to understand what it is like to be a woman pursued and trapped by a sexual harasser.

Part 1:      Predators are good at what they do. 

  • They understand when they are in a corporate culture that turns a blind eye and stays quiet when sexual harassment is reported. This is their green light to begin their search for women to harass or assault.
  • Studies show that they tend to pick women who are economically or otherwise vulnerable. My unscientific analysis is that they also look for women who have a history of sex or child abuse.
  • They are master manipulators and use a variety of tools to confuse, erode confidence, and bully women into acquiescing.

For example, listen to the tape recording of Harvey Weinstein who used these kinds of tactics on one woman.  The following are excerpts from his attempts to get her into his hotel room:

Confuse: “I’m sorry…I won’t do it again… I swear on my children.”

Erode Confidence: “You’re embarrassing me… Don’t embarrass me in this hotel…Don’t have a fight with me in the hallway.”

Bully: “You must sit here and have a drink…You must come here now…Go to the bathroom. Listen to me.”

We know how (sickly) effective he was at these tactics on women who seem intelligent, confident and resilient.  But, predators are quite good at what they do, some of them having practiced these tactics for years, even decades.

 

  1. Why They “Give In” or Why They Don’t “Just Leave.” Part 2

Part II: Women have few good choices, particularly when the harasser is a powerful superior.

Women are terrified of the consequences to their current and future opportunities if they say no to the advances of the powerful male supervisor.

  • Women do not often have the luxury of losing their salary, health care, or savings plan
  • Because of the wage and leadership disparity with men, it will likely take a woman a longer time than a man to find a job with equivalent stature, pay and benefits to her current position.
  • Women still get fired for making sexual harassment claims.[11]
  • Women often blame themselves, feel guilt and shame, and then get caught in a cycle of continued abuse.

 

  1. What Really Happens When Women Report Sexual Harassment or Assault

We have heard from some famous men accused of sexual harassment that the accusers are simply trying to “cash in” on their allegations or get their fifteen minutes of fame. For most women who report sexual harassment, neither of those results are very likely.  In fact, I have never met a client who’s super psyched to have been sexually harassed because now she can get her “big payout.” Literally never. Most of what I hear is “I just don’t want another woman to have to experience what I went through.”

Here are the more common experiences of my clients before lawyers get involved:

  • The company moves her out of the office or department away from the harasser because it’s uncomfortable for him to see her every day. The move diminishes her career opportunities but not his.
  • Potential male mentors shun her out of concern that they will be “misinterpreted” when alone with her.
  • She has PTSD and must take a leave of absence from work, further hurting her job security and career advancement.
  • HR does a poor investigation and concludes that “there was no evidence that their sexual harassment policy was violated.” Now, she’s viewed as a troublemaker and a liar.
  • Her work goes under a microscope, and suddenly the company finds her attitude poor or her work deficient.
  • She’s fired.
  • She can’t get another job because she has no reference and can’t tell the prospective employer the real reason she was fired

The harasser? Well, if he’s the company’s top salesperson or the founder of the business or a Chief Operating Officer, chances are he’s not going anywhere.  Or, if he does, it will be with a generous six or seven-figure separation agreement in his back pocket.

There are ways to navigate this stressful and challenging path, but again, no woman wants to find herself having to take this journey.

 

  1. Companies Don’t Always Walk the Talk

Almost all companies with more than fifteen employees understand that they need to have a written anti-harassment and anti-discrimination policy.  And, most of them do write one. Then, they neatly tuck it away in a desk drawer and never look at it again.

We do not talk about sexual harassment and assault at the workplace well or with any meaningful frequency.  We are still awkward, giggly inappropriate teenagers about this topic, and it’s time to grow up. Companies need to move past their uncomfortable feelings and engage in frequent communication and training about sexual harassment.

I provide Anti-Harassment and Anti-Discrimination training to companies on a regular basis. And, yes, people make jokes and roll their eyes at my lecture, but I trudge on.  I talk about how a woman harassed at work may feel scared to go to the office or may re-experience trauma from childhood after an assault.  I talk about the low morale everyone feels in a company when the investigators and lawyers start to pour in to examine someone’s claims.  I give concrete examples of words, images, and physical acts that are not appropriate for the workplace.

I hope that having a female lawyer stand in front of managers and employees for hours explaining in excruciating detail how and why this is not only wrong but in violation of the law makes a difference.  But, I can only do so much without the help of the company.  Predators know when the company truly means Zero Tolerance and when it’s just lip service.  The companies that buy in and wholeheartedly embrace the idea that the workplace should be free of all harassment and a safe place to work have the best chance of achieving that goal.

 

  1. Consequences Should be Swift and Severe. Usually, They’re Not.

First, it typically takes more time than it should for companies to complete their factual inquiry and investigations. It takes more time than it should for the EEOC to engage in a meaningful investigation.  Lawsuits maddeningly creep along at an interminable pace.

When a company finally gets to the point of agreeing to a settlement over sexual harassment or assault claims, they typically agree to make a payment of monetary damages to the woman harmed by the harasser’s conduct.  Many women also seek nonmonetary remedies like an apology, termination of the harasser, revision of the anti-harassment policy, or meaningful anti-harassment training.  This may be surprising but, in my experience, it is exceedingly rare for a company to agree to any of these terms. Not even an apology? Nope.  More training so this doesn’t happen again? Nah. In fact, it is standard for a settlement agreement to state emphatically that the payment of money to the woman harmed in no way should be construed as the company admitting “any liability whatsoever” for the acts.  You can imagine how good this feels to a woman who was hoping to effect change by her brave act of coming forward with her complaint.

 

  1. Confidentiality Agreements Are Not Helping Stem the Harassment

Perhaps some folks were indeed surprised when they learned about the claims by multiple women against Roger Ailes, Bill O’Reilly, Bill Cosby, and Harvey Weinstein.  Why do I think this? Because I am confident that the women who settled their claims against these men had to sign away their rights to talk about the harassment or assault in exchange for the settlement.  I am equally confident that those agreements contained harsh consequences if the woman harassed later spilled the beans about her harasser (such as having to pay back the entire settlement and the company’s attorneys’ fees).  Given what we know about the difficulty of staying in the job or finding a comparable job and maintaining a reputation in the field after the complaint, it seems like a reasonable choice for women to accept the monetary benefits in exchange for a gag order.  What if companies didn’t insist on silence and the harasser was identified and tagged in the industry the same way that women who complain are? We might see fewer harassers attempt harassment again. As it stands now, we know the pattern:  he harasses or assaults, she leaves, (maybe money is paid and a confidentiality order is signed), he stays at work to harass or assault again.

  1. Mandatory Employment Arbitration Agreement are Unfair to Sexual Assault Victims

Americans have a right to a trial by a jury.  However, fewer Americans can exercise that right because they sign it away when they go to work for corporate America.  Many people don’t even realize what they’ve signed until something terrible happens at work, and they need an attorney.  Then they discover that the “onboarding” paperwork that Human Resources sent them included a “binding arbitration” clause for any employment claims. That means, instead of having your case filed publically and your evidence heard in open court by a jury of your peers, your case is filed privately, and your claims are decided by a private arbitrator(s).  The arbitrator’s decision is final meaning that you have no right to an appeal.  Arbitration further stacks the deck in favor of employers because: i) it can be much more expensive than court; ii) arbitration can limit the amount of evidence that you can get from the company that will support your claims; and iii) the arbitrator(s) have to be agreed to by the employer, and they are usually ones that have incentive to be hired frequently by large law firms defending companies.

 

Conclusion

Like most women, I have experienced sexual harassment at work.  One summer during law school I worked in a bank. Many days while I say at my computer the much older VP of the Bank would come to my desk, rub my shoulders and ask me to “relax.” My “#metoo” moments did not end there. I was sexually harassed by a law school professor and later while working as an Assistant District Attorney in New York.   It never crossed my mind to tell anyone about these incidents. I thought the cost of working as a woman was that occasionally you had to fend off the advances of a sexual harasser. It never occurred to me to be angry that my male lawyer colleagues did not have to spend their precious energy dealing with this crap.

Supervisors (and co-workers), mostly men, need to learn that the sexual harassment and assault is against the law.  Companies need to do a better job teaching this fact to their employees and taking swift and certain action against those who violate the law. Employees who have been sexually harassed or assaulted at work should not have to be bound by a gag order when they seek the justice to which they are entitled.  Finally, American workers should not be limited to a private binding arbitration to seek redress for sexual harassment and assault at work.

If you’re not convinced, do this. Go to your next professional conference – and I mean in any industry- film, car sales, pharmaceuticals, legal, medical, academic, etc.- and ask the attendees in the room to raise their hands if they’ve ever experienced sexual harassment at work.  If they’re honest, scores of women’s hands will go up in your group. Scores and scores.

 

[1] I have represented men sexually harassed by other men or women. I have represented women sexually harassed by other women. However, by a landslide, my cases involve men in power sexually harassing female subordinates, so I am addressing the legal and practical effects of these scenarios in this article.

[2] See,  Report of the Secretary-General of the United Nations, In-depth Study on all Forms of Violence Against Women 68 (July 2006) at page 68.

[3] Potter & Banyard, 2011 survey concluding that 38% of women in the workplace have experienced sexual harassment at work.

[4] http://www.npr.org/2016/02/23/467826376/underreporting-makes-sexual-violence-at-work-difficult-to-address.

[5] Wood v. Safeway, Inc., 121 Nev. 724 (2005)(woman sexually assaulted at work could not bring lawsuit against the employer; workers’ compensation was her only remedy); McGowan v. Our Savior’s Lutheran Church, 527 N.W.2d 830 (Minn. 1995)(Employee raped by a visitor to the shelter where she worked was barred from bring a lawsuit against her employer for negligence; workers’ compensation was her exclusive remedy.) See also, Andrea Giampetro-Meyer, et al., Raped at Work: Just Another Slip, Twist, and Fall Case, 11 U.C.L.A. Women’s L.J. 67, 98 (Winter 2000).

[6] Committee on Pediatric Workforce. (2006). Prevention of sexual harassment in the workplace and educational settings: Policy statement. Pediatrics, 118, 1752-1756. doi:10.1542/peds.2006-1816

[7]  European Commission Recommendation of 27 November 1991 on the protection of the dignity of women and men at work, 1992.

[8] Title VII of the Civil Rights Act of 1964. Perhaps enforcement has been less than ideal given that protection against gender discrimination was incorporated by accident into the law. According to the legislative record, sex discrimination was not included in the original draft of the law, but was added at the last minute in an effort to prevent passage of the Act. 110 CONG. REC. 2577-84 (1964).

[9] While there is some controversy around the causes of the wage disparity, we know that overall women still earn about 81% of what men earn and that women are disproportionally represented in low-wage jobs even though more women are earning college degrees than men. These statistics are much worse for women of color:

  1. Native Hawaiian & Pacific Islander women make 65%
  2. African-American women make 64%
  3. American Indian & Alaskan Native women make 59%
  4. Hispanic women make 54%

compared to white male counterparts
Asian American women are the only group doing better than white women, making 90% of white men
– U.S. Census Bureau

[10] http://www.who.int/violence_injury_prevention/violence/gender.pdf

[11] A report by the Equal Employment Opportunity Commission noted that in Fiscal Year 2012 retaliation charges represented 37.8% of all charges filed (nearly 100,000) – the highest percentage of any claim for that year, and the highest number of retaliation charges ever received by the EEOC in any fiscal year. William R. Tamayo, Retaliation in Harassment Cases and Threats to Deter Reporting 12-17 (June 2013), http://www.americanbar.org/content/ dam/aba/events/labor_law/am/2013/06tamayo.authcheckdam.pdf.

 
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