#MeToo — Here, Too?

In a year filled with more relentless political and social upheavals than at any time in recent history, TIME magazine saw fit to make sexual harassment the most important news event of 2017. In naming “the silence breakers” its persons of the year, TIME put this issue above not only Kim Jong-Un’s nukes and Vladimir Putin’s election tampering but also healthcare replacement, tax overhaul, the refugee crisis, immigration policy — even above the Trump presidency.

And it is hard to discredit that choice.

Ever since the allegations against movie mogul Harvey Weinstein surfaced, a seemingly daily perp walk of sexual predators has (dis)graced the front pages of newspapers around the globe. Closer to home, it was revealed that former Fox News star Bill O’Reilly paid out the biggest sexual-harassment settlement on record — a stunning $32 million — to Lis Wiehl, a former federal prosecutor and Fox News commentator who resides in Westchester. Sexual harassment is pervasive under the media radar, as well, and the 914 is not immune. “Here in Westchester, I believe it’s no different than the rest of the country,” says Cindy Kanusher, executive director of the Pace Women’s Justice Center at Pace University Law School. “It happens here at the same rate as everywhere.”

“The only good thing coming out of this is people are getting the message that it is okay to talk about it.”

—Cindy Kanusher, Executive Director, Pace Women’s Justice Center

It’s hard to come up with statistics on sexual harassment in Westchester, she says. “There may not be a place where this information is being collected or stored or even looked at,” Kanusher explains. The county’s Department of Human Rights requires a Freedom of Information request to get its data — but even those numbers are likely not representative of what’s really happening, as far more cases of sexual predation are not reported than are. No matter what any official stats may show, the reality that the world is being forced to acknowledge is that sexual harassment occurs with unsettling frequency. “The only good thing coming out of this is people are getting the message that it is okay to talk about it,” Kanusher says. “You don’t need to be ashamed or afraid. People will believe you. The whole Me Too movement shows the breadth of what has been happening for years. This is not just a Hollywood story.”

As a Westchester story, the current climate can be described as “concerned.” Karen M. Hertz, an attorney in Croton-on-Hudson who specializes in workplace law, says she has seen an uptick in inquiries about sexual harassment in HR departments and small businesses. “They are asking, ‘Should we be concerned about this?’” The obvious answer is yes. Hertz notes that the largest lawsuit settlement she knows about in the county was $150,000, awarded from the owner of a Dunkin Donuts franchise. That’s not Bill O’Reilly dollars, to be sure, but it’s not chump change either. “And not only is the harasser potentially liable, so is his or her supervisor and the entire company as an entity,” she says.

What is sexual harassment? The US Equal Employment Opportunity Commission defines sexual harassment as follows: Unwanted sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature, where: 1. submission to such conduct is made explicitly or implicitly a term or condition of one’s employment, or 2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or 3. such conduct has the purpose or effect of unreasonable interference with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.  “The keywords here, and what the courts use as a barometer to determine if sexual harassment did occur, are ‘reasonable’ and ‘unwanted,’” Westchester attorney Karen M. Hertz says, emphasizing that it is a misconception among many that there must be a power disparity between the parties involved. - Advertisement - “Sexual harassment can and does occur even if the people involved work for different departments or are at essentially the same rank or level of seniority within the company,” she says. “The key is: Would a reasonable person, in the same situation, find the behavior offensive? Would you want someone treating your daughter, mother, sister, brother, in that manner in the workplace — or anywhere, for that matter?” —DL

In response to this wave of harassment news, legislators at the national and state levels are proposing new laws that would eliminate some of the protections companies now have against such claims. Governor Andrew Cuomo has suggested that the state limit the ability of publicly traded companies and government entities to secretly settle sexual harassment allegations. Senator Kirsten Gillibrand (D-NY) cosponsored bipartisan legislation that would void forced arbitration agreements that prevent sexual harassment survivors from going to court and from discussing their cases publicly. In January, Gillibrand was joined in this effort by a coalition of New York State legislators, who have composed a package of bills that would dramatically affect how sexual harassment cases are handled both in the public and private sectors. Among other things, the package voids most confidentiality agreements in settlements of sexual harassment claims and bars contracts from from denying workers’ procedural rights in arbitration agreements as a condition for employment. It also imposes new fines on public officers, as well as the personal financial responsibility of legislators for monetary settlements arising from sexual harassment cases.

Kanusher believes that such initiatives could radically change the landscape of the American business world. “The even bigger unanswered question is: In the climate we’re seeing right now, whether victims of sexual harassment will have appropriate remedies against an employer that knew — or should have known — about similar violations in the past yet said or did nothing to protect that and other employees from potential victimization?

“We are very aggressive with [sexual harrasment]training at Westmed.”

—Joseph DiCarlo, Chief Talent and Engagement Officer, Westmed Medical Group

“I believe we are going to see a lot of legislative activity over the course of the next year designed to provide appropriate legal remedies for victims and unmask the veil of corporate secrecy,” she adds. “In light of this, we can reasonably expect to see a significant rise in lawsuits relating to sexual harassment and assault in the workplace.”

As a result, Hertz believes that employers are now addressing the issue more rigorously. “They realize that not only is it good sense to provide harassment-prevention training, which is what our firm does, but to take complaints seriously and encourage a safe place to report issues,” she says. In her trainings, Hertz discusses how to recognize sexual harassment, how to prevent and deal with it in the workplace, and what to do if an event is reported. Hertz says such trainings are not  mandatory in New York State, so her sessions here are “kind of like team building. Keeping communication channels open is the most important thing.”

Training and education are key for savvy business leaders, like Joseph DiCarlo, chief talent and engagement officer for Westmed Practice Partners and Westmed Medical Group. “We are very aggressive with training at Westmed. We train our managers annually on sexual-harassment prevention, and all our physicians are trained on the definition and prevention of harassment.” The company is rolling out a new training program for rank-and-file staff, as well, DiCarlo notes, to help employees “understand what is acceptable and what is not. We already talk about acceptable behavior during our new-hire orientations, and we thought it would be good to offer a refresher course to them.

“Organizations have to make this a social norm within the organization,” he adds, “with no tolerance, regardless of rank, or the amount of revenue they generate — no tolerance to break this norm of being a good citizen and good colleague.” 

David Levine is a frequent contributor to 914INC. and Westchester Magazine.