Will the #MeToo era herald a new day in court for women who file gender discrimination or sexual harassment lawsuits against prominent people or institutions?
The 2017 deposition of a former vice president of investment banking for a major Australian bank operating in 34 countries including the U.S., illustrates what women can face. The woman, who worked in the bank’s New York office for two years, was one of two women in her department and one of four black people in the 100-person office. She sued for race and sex discrimination in federal court in 2016, two years after being let go. Her lawsuit alleges that her male colleagues constantly commented about the size of women’s breasts and their own physical assets in addition to asking the woman about her sex life. The woman also alleges that a former manager called her a “monkey” on numerous occasions.
Large companies and powerful individuals tend to fight such charges, sometimes viciously with the intent of shaming and humiliating the accuser. They work to raise questions that turn the accuser into the accused: Why would someone wait so long to come forward? Why would anyone put up with the behavior for so long? Is the plaintiff really after justice, or just a fat check?
In this particular case, the bank’s deposition of the accuser veered into several extremely personal issues that did not directly stem from the case: details of a rape the woman had suffered as a college student, whether the woman attended “sex workshops” (she said no), whether the woman had mental health issues, and whether she had ever contracted an STD.
While the woman’s lawyers objected to the questions, the bank’s attorney insisted the questions gave a window into what the woman considered to be sexual harassment. A harsh backlash quickly built, and the bank, along with its CEO, publicly apologized and claimed to be “disappointed” in questions that did not reflect the bank’s “culture or values.” The bank also blamed differences in American and Australian law practice for fomenting the line of questioning.
The bank also has said the Q-and-A from the deposition will not be part of the defense case when the trial begins in September, although it continues to deny the harassment or discrimination. Whatever the case may be, the deposition serves as a rare window into such exchanges since they seldom become public, providing a dismaying reality check to anyone who might have hoped such shaming tactics were a thing of the past.
While lawyers must provide a vigorous defense for their clients, and litigation is undoubtedly a contact sport, questions unrelated to the actual allegations of sex discrimination cases seem designed not so much to elicit useful information as to warn women away from pursuing legal action. Those who do may be forced to endure verbal and emotional harassment from defense counsel that will feel similarly invasive and upsetting as the incidents from which the case stems. Combined with the financial resources they will need to expend in pursuit of a case against a prominent person or company, these cases can become cost-prohibitive on more levels than one.
Potentially compounding these issues of intentional humiliation of accusers in the name of advocacy is the recent Supreme Court decision in Epic Systems Corp. v. Lewis. While the Epic Systems case does not deal directly with complaints of gender discrimination, the Supreme Court held that employees could be forced to sign binding arbitration agreements that prohibit class action suits. This means that any woman forced to sign such an agreement seeking to file a claim of sexual harassment against their employer must do so alone, often with a confidentiality agreement attached to arbitration awards or settlements. Without the benefit of supportive co-plaintiffs, even when the harassment is pervasive and there are multiple victims, any alleged victim must face their employer alone, no matter how large and powerful a corporation they might be.
The recent #MeToo movement gained popularity largely because it was easier for women to come forward when they were not alone. Consider, for example, the case of Larry Nassar and U.S.A. Gymnastics. The first woman to publicly level accusations while using her real name was treated in a manner very similar to the aforementioned bank executive, with Nassar’s defense attorneys publicly slandering her reputation in the name of zealous defense.
While many states do have laws that somewhat limit the extent to which victims of sexual violence can be asked about their sexual past, these laws do not extend to civil court allegations of harassment in the workplace. In fact, allegations of sexual harassment have been raised against high powered men from Hollywood to the Supreme Court and generally speaking, the more isolated the female victim, the more her character and actions become the issue. Giants like Harvey Weinstein and Larry Nassar only fell when the cacophony of voices raised against them became too deafening to ignore.
The Supreme Court has now denied many victims the ability to form their own chorus, leaving them, like the former bank vice president, alone to take on a big corporation behind closed doors with no avenue for appeal when lines are crossed. The battle for equality will continue to be fought on many fronts, and ultimately the courts will have to give full recognition to the problem and be part of the solution.