Employment law expert offers take on recent harassment scandals

File photo Attorney Nancy Erika Smith of Smith Mullin.

Harvey Weinstein. Bill O’Reilly. Travis Kalanick.

Just a handful of names of top employers and personalities who have resigned or have been fired this year in the wake of sexual harassment accusations and lawsuits.

A lot can happen in a year, Nancy Erika Smith, partner and co-founder of Smith Mullin in Montclair, said.

It was just last July that Smith signed up as co-counsel for former Fox News anchor Gretchen Carlson to file her high-profile sexual harassment suit against Roger Ailes, the former chairman and top executive of Fox News.

The work hasn’t stopped since, Smith, a longtime leader in employment law in New Jersey, said.

ROI-NJ spoke with Smith regarding the influx of work and how her case has since influenced corporate culture.

Here’s what she had to say:

ROI-NJ: Just how much of an uptick have you and your firm seen in workplace harassment suits since taking on Gretchen Carlson’s case last year?

Nancy Erika Smith: We have definitely seen more women emboldened to bravely speak out. There’s no question that more women are coming forward, talking openly, and going to lawyers — including us — about sexual harassment since July 2016. … A lot of these cases have been slipped under the rug because of fears of retaliation, being attacked, being smeared and never working again. Women are trying to turn that around now — they have decided to stop being silenced. I think Gretchen raised consciousness about the role of nondisclosure agreements and forced arbitration in shutting women up and empowering and enabling harassers to keep harassing.

So, it is a very busy time. We are a small law firm, but we partner with other law firms in order to handle the volume and make sure that these women are getting their day in court.

ROI: Has the risk of women losing their jobs when reporting harassment decreased at all?

NES: I don’t think that has changed, unfortunately. Maybe we are on the cusp of it. But a woman who complains of sexual harassment, in my 37 years’ experience as a lawyer, does not keep her job and often does not work in that industry again if it goes public. That is a real problem and one that I really want to think creatively about how to tackle.

ROI: You said last year that ‘social media has given you hope for both women and men going forward.’ How, in your opinion, have social media movements in this space changed and expanded since?

NES: That hope has been realized — social media has enabled many women whose voices would not have been heard to be heard, and has the ability to empower and comfort women by reminding them that they are not alone. … The scope of the problem of sexual harassment in our country, in every industry, also has been revealed thanks to hashtags such as #MeToo, which even inspired U.S. senators, (people) in Hollywood and entertainment, and in business to speak out, and #BeFierce, Gretchen’s book, which includes some ‘how-tos’ on what to do if you are sexually harassed.

What we need now is for men who love these women to also create an ‘I support #MeToo’ type of campaign. We need the support of men to change this world. And we cannot minimize the role of journalists — good journalism has revealed O’Reilly and now Weinstein.

ROI: What role do human resources departments play when it comes to the handling of such allegations?

NES: I recently read an article about how New Orleans celebrity chef John Besh was fired after numerous allegations of sexual harassment came out. His company said that they were going to have HR meetings and training in response — but, really, a lot of corporations have that. It’s much, much more than that.

We need more women in positions of power. We need women on boards. We need boards to be actively responsible for keeping the workplace safe for everybody, including women and minorities. We need committees on boards who get the reports about how many complaints are made and how they are handled. We need real responsibility. We need independent investigations of discrimination and harassment.

If the company and the executives who are reviewing your work, giving you your performance review, your bonus and your pay, are the people you’re investing, it is an inherent conflict. Unless we have fundamental changes, HR can’t fix this — HR doesn’t have the power to fix this. HR and legal departments are there to protect the corporation.

ROI: How might this change how corporations handle such allegations, then?

NES: I don’t think men are going to relinquish power and give up the patriarchy easily or voluntarily — but I think women are going to start demanding it. And, without secrecy and forced arbitration and nondisclosure agreements, the public is going to become much more aware of the pervasiveness of this problem. That may lead to some change.

ROI: Let’s talk about those nondisclosure and forced arbitration agreements. How are they contributing to the problem?

NES: When an employee complains of discrimination or harassment, immediately the focus is on keeping everything quiet, getting them out, giving them some money and shutting them up. A nondisclosure agreement is always required to resolve the case. So, unless a woman wants to spend three years litigating and being targeted and potentially unemployable while she sues an employer, she is forced to agree to shut up.

(State) Sen. Loretta Weinberg is introducing a bill that will ban nondisclosure agreements under such circumstances. The ultimate (result) of that, I believe, will be an incredible decrease in harassment. Now, when you work for an employer, your employer, in exchange for working, may force you to give up your Seventh Amendment right to a jury trial. That forces you into a secret corporate court system where you have a single arbitrator, a usually-retired judge — who often is a white, older male — you cannot appeal, the rules of evidence don’t apply, the rules of court don’t apply and you have limited discovery. (Forced arbitration) is therefore an interesting concept, because corporations will tell you that it is a cheaper process. But the employer has access to all the information. The employer can talk to all its employees, witnesses and others. The employer has all the documents, emails and text messages. So, when you limit discovery, you are limiting discovery to one party. The whole system is skewed against the employee.

Cornell did a study of it and employees lose those cases at an astonishing rate of 80 percent. And, when they win, they get much less money than juries typically award. It is a rigged system and it is secret. By keeping it secret, say, if you were one of the Weinstein women forced into arbitration, you wouldn’t know that there are 40 other victims, which is incredible evidence; you wouldn’t know that he’s paid off eight women or more.

Forced arbitration should be illegal. It’s a Seventh Amendment right in the (Constitution) — the right to a jury trial. The idea that, in order to work, you have to give up such an important right — and a right that affects all of us, because that means that we don’t know what’s going on in our country and in our corporations — should be made illegal. (U.S. Sen. Al) Franken has introduced the Fairness in Arbitration Act. Gretchen is regularly in Washington, D.C., working in a bipartisan way to get support for that act. It should be called the “Let’s Stop Enabling Harassers” act.