#metoo lawyer

Lift Our Voices: National Effort to Curb the Use of NDAs

December 12, 2019 | Smith Eibeler LLC

On December 11, 2019 at The Hollywood Reporter’s Annual Women in Entertainment breakfast gala, Gretchen Carlson announced the formation and launch of “Lift of our Voices,” an education and advocacy organization focused on putting an end to the practice of using Non-Disclosure Agreements (“NDAs”) to silence victims of sexual harassment and discrimination. In making the announcement, Carlson was joined on stage by Charlize Theron, an actress who is portraying Megyn Kelly in the upcoming film “Bombshell,” which details the Fox News sexual harassment scandal that saw then-CEO Roger Ailes forced to resign from the company. Carlson’s sexual harassment complaint against Ailes ultimately lead to his resignation, but her settlement with Fox News, and the NDA she was required to sign to enter into that settlement, have prevented her from speaking publicly about the case.

An NDA is a contract that identifies certain information or topics that the parties agree they will not discuss with anyone following execution of the contract or agreement. NDAs typically are entered into in connection with an additional contract or agreement, such as an employment contract or a settlement or severance agreement. Often in the context of employment contracts, a prospective employee will agree not to discuss or disclose certain information regarding their employment to anyone outside the company, in exchange for being hired. In the context of settlement or severance agreements, a departing employee agrees not to discuss or disclose certain information regarding their employment or their reason for leaving the employment, in exchange for a settlement or severance payment.

In either situation, the NDA agreement can be used by the employer to facially “resolve” issues of harassment and discrimination without truly addressing systemic issues within their organization. In such a case, new prospective employees are unaware that they are entering a workplace where they may be unsafe. The public at large is likewise kept unaware, and individuals will then unwittingly support companies that they otherwise may choose not to support. Consumers are unable to apply commercial pressure to businesses that harbor and protect harassers, allowing those companies to circumvent a powerful societal check on business practices. Carlson and her organization are aiming to solve this problem, to give society at large access to this information, and more importantly, as Carlson stated, to give victims “back the voices they deserve.”

Sexual Harassment on the Campaign Trail

December 11, 2019 | Smith Eibeler LLC

The #MeToo movement has shined much-needed light on the prevalence of sexual harassment within political campaign organizations. Operating a political campaign, a transient organization — comprised of the candidate, and his or her workers, applicants, consultants and invitees – presents unique challenges. These challenges, however, do not shield campaigns the legal obligation to keep women safe from sexual harassment and misconduct within the campaign environment. Women who are sexually harassed while working in campaigns are increasingly speaking, including filing lawsuits against the campaign entities when they fall victim to sexual harassment and assault.

Most recently, it was reported that a Chicago-based political staffer, Alaina Hampton, settled a sexual harassment lawsuit against a campaign, several political entities, and the campaign supervisor who sexually harassed her. Ms. Hampton, a former political staffer and campaign manager, filed the lawsuit in March 2018. She first began working on Chicago-based political campaigns in 2012 after graduating college with a degree in political science. In or about July 2016, Ms. Hampton began working on three separate democratic campaigns for the Democratic Party of Illinois for which she was paid a salary. Kevin Quinn, Ms. Hampton’s supervisor, was a well-known, high-ranking political operative for Speaker Madigan and the Madigan Defendants. Mr. Quinn directed Ms. Hampton’s work on any one of the three campaigns to which she was assigned.

Shortly after Ms. Hampton began working with Mr. Quinn, she alleges he began to subject her to severe and pervasive sexual harassment. According to Ms. Hampton’s complaint, Mr. Quinn regularly pursued Ms. Hampton for a romantic and sexual relationship. Mr. Quinn’s purported sexually harassing behavior included repeated late-night text messages asking Ms. Hampton out, telling her she was “smoking hot,” and insisting she go out with him. Ms. Hampton asserts that she repeatedly told Mr. Quinn that she did not want to become involved with him and wanted to keep their relationship professional. Ms. Hampton alleges that despite her repeated rejections, Mr. Quinn refused to take “no” for an answer.

When is an Employer Responsible for Sexual Harassment?

January 2, 2019 | Smith Eibeler LLC

Most people know what sexual harassment is when they see it. Whether an employer is responsible for sexual harassment that occurs at the workplace, however, is a more complicated fact specific inquiry.

It is first important to understand the definition of unlawful sexual harassment. Sexual harassment is a form of unlawful discrimination under the New Jersey Law Against Discrimination. The first form of sexual harassment is quid pro quo harassment. A claim of quid pro sexual harassment occurs when an employer attempts to make an employee’s submission upon a sexual demand or sexual proposition a condition of employment. The second form of sexual harassment is a claim of hostile work environment sexual harassment. The elements of a hostile work environment sexual harassment is when the harassment (1) would not have occurred but for the employee’s sex, and the harassment was (2) severe and pervasive enough to make a (3) reasonable woman believe that (4) the conditions of the employment are altered and the working environment is hostile or abusive.

The first issue to determining whether an employer can be liable for sexual harassment that occurs at its workplace in a lawsuit is to identify the damages an employee is seeking in the case. An employer will be liable for equitable damages and relief if he or she seeks restoration of the terms, conditions and privileges of employment that he or she would have enjoyed but for the discrimination or sexual harassment. Equitable relief is not money damages. Instead, an employee who seeks equitable relief as a result of sexual harassment is looking for the court to require the employer to act or refrain from performing a particular act such as stopping the harassment, job reinstatement or other non-monetary relief.