John Winer Quoted in the Wall Street Journal

Posted in Legal News on November 27, 2017

(See link at bottom for original article in the Wall Street Journal, Nov 23, 2017)

Harassment Complaints Mount, But Successful Suits Remain Elusive –

By Sara Randazzo
Nov. 23, 2017 7:00 a.m. ET

The number of inquiries hitting California attorney John Winer’s office each week has risen sharply since the Harvey Weinstein scandal broke.

Women who endured unwanted touching at work, gay men harassed by co-workers, and others who say they were terminated for reporting inappropriate behavior have all asked him to consider taking their cases.

But because of hurdles in the laws meant to protect workers from harassment, many of the inbound calls won’t become lawsuits.

“We’re getting a lot of cases we just can’t bring,” said Mr. Winer. To some potential clients who say they are finally ready to have their day in court, “I have to tell them their day is passed.”

In recent weeks, many accusing powerful figures of sexual impropriety have done so through the press and social media. But increasingly, those with complaints of workplace harassment are looking for help through the courts, prompting calls for reforms around Title VII of the federal Civil Rights Act of 1964.

Statistics show that the deck is stacked against people making claims, plaintiffs’ lawyers say.

Legal analytics company Lex Machina found that while more than 75% of employment cases settle, almost always under nonpublic terms, when the courts do reach a determination on sex or gender discrimination under Title VII, they favor defendants more than 95% of the time.

Title VII broadly covers workplace discrimination based on race, color, religion, sex and national origin. Sexual harassment was hardly a concept when the law was created in 1964, but the Equal Employment Opportunity Commission and courts began recognizing it under Title VII in the following decades.

Defense lawyers say the low win rate for plaintiffs reflects that many meritorious claims settle before reaching a judge or jury. Relaxing the law, they say, might encourage workers to run to federal court over grievances that have little to do with discrimination.

Plaintiffs lawyers say the bar is set too high. Employees using the federal law face tight statutes of limitations, employer-friendly court precedent and high burdens of proof required to show harassment was severe or pervasive. Some states and cities offer broader legal protections for employees than the federal law.

In employment-related harassment cases, plaintiffs have either 180 or 300 days from the most recent incident, depending on the state, to file a claim under Title VII.

Coming forward is often personally challenging and professionally risky, lawyers say, resulting in many people missing the time frame.

Those facing discrimination or harassment at work can “fear retaliation, loss of promotion potential…physical or emotional abuse,” said Christine Saah Nazer, a spokeswoman at the EEOC. The agency—which saw a fourfold increase in visitors to the sexual harassment section of its website the week after the Weinstein news came out—serves as a mandatory first stop for plaintiffs looking to bring workplace discrimination claims under federal laws.

Defense lawyers argue the statutes of limitations ensure employers still have access to evidence and witnesses needed to complete investigations and don’t have the threat of liability hanging over them for years after alleged misconduct.

In court, employers can defeat Title VII claims by showing they have an internal mechanism in place to report harassment and that the plaintiff didn’t use it. Defense lawyers say the requirement makes sense, as it ensures employees “give employers an opportunity to investigate,” and possibly fix a problem, said Anthony Oncidi, an employment defense lawyer at Proskauer Rose LLP.

But some plaintiffs’ lawyers say the requirement fails to address that victims fear retaliation or may not know the official channel to report bad behavior.

Morgan Cramer was a 17-year-old high-school student when she started working part time shifts at a Bojangles restaurant outside Atlanta in 2010. When a co-worker made graphic, lewd remarks to her several times, she told the branch manager he was saying nasty things, according to a Title VII lawsuit she filed. After the co-worker forced her against a wall and forcibly tried to touch and kiss her, she quit. That incident eventually led to his termination less than a month later, court filings show.

In 2012, a judge found Ms. Cramer didn’t bring her complaint through the right channels—the handbook called for her to tell higher-up managers—and that she wasn’t specific enough when she did tell her local manager.

“I was crushed,” said Ms. Cramer, now 25, of the court’s decision. “I thought, nobody was taking me seriously. They were calling me a liar.”

Bojangles said in court filings it took prompt action once it learned of the assault.

Legal scholars and practitioners say that as long as disputes are handled in secrecy, either in private arbitration or confidential settlements, widespread change will be difficult.

For some plaintiffs, the transparency that comes by merely filing a suit is meaningful.

Patent attorney Ellen Wei sued her former law firm, Hickman Palermo Becker Bingham LLP, earlier this year over what she alleges was frequent inappropriate remarks by a male colleague that the firm refused to properly address. The firm said it takes the allegations seriously but disputes her claims.

“Whether I’m successful or not, they have to acknowledge it,” she said of the behavior laid out in the lawsuit, filed under California state laws in Santa Clara County Superior Court. “That in itself is already enough for what I’m doing to be worth it.”

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