Published December 2018
On Saturday July 21st, our friends at Technical Tools of the Trade (Tech Tools) hosted a presentation on Discrimination and Harassment Law. It was presented by Justin D Cummins, Esq. of Cummins and Cummins Law – who focuses on retaliation, harassment, and discrimination in employment, as well as other employment and labor law cases. In addition to being a law professor at the University of Minnesota, he provides legal counsel for IATSE Local 13. The event was well attended, and I found Justin to be a very approachable instructor. Tech Tools still has copies of his PowerPoint presentation if you are interested. Although advertised as Harassment and Discrimination Law generally, Mr. Cummins emphasized sex harassment law since the #MeToo movement had brought to light not only its importance but the ability to speak about it publicly.
Mr. Cummins began with leading an introduction of terms. After discussion, it was clear that we struggled to articulate definitions. The legal definition of harassment and discrimination are not totally inclusive of all forms of experienced harassment and discrimination. The hope is that we can converge the technical (law “as written”) and the practical realities (law “in action”) into capital J Justice.
Discrimination is when an individual or group is being treated unfairly or unequally based on a protected characteristic. Discrimination can occur as a result of stereotype or intentional discrimination, or it can occur when an organization’s policy or practice affects a group of people differently than another group. Protected Characteristics (in Minnesota) include race, color, creed, religion, national origin, sex, age, marital status, or status with regard to public assistance, sexual orientation, or disability.
Harassment is a form of discrimination. Under the law, harassment means engaging in intentional conduct which, (1) the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated; and, (2) causes this reaction on the part of the victim. A Hostile Work Environment (HWE) is unlawful harassment where (1) enduring the offensive conduct becomes a condition of continued employment; or (2) the conduct is severe or [sometimes “and”] pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive (EEOC). In my experience as a technician, HWEs are the most common and pervasive forms of harassment and are so hard to deal with because they are often composed of microaggressions. Note that when a victim quits their job because of the experienced harassment, this is called Constructive Discharge and basically nullifies all opportunity for a legal case. Another type of harassment is the Quid Pro Quo (“this for that”) which is almost always an exchange specific to sex harassment cases. Though more obviously illegal, it is almost never litigated for lack of proof or finalized in a settlement payment with a gag order. Both in instances of construction discharge or in a gag order, the actor can continue the behavior unimpeded. Considering the emotional burden required by the victim to speak up and fight the injustice, no wonder why the culture of victimization and silence pervades.
Another form of discrimination is retaliation. Retaliation is an “adverse action taken because of the victim’s status within a protected class.” Courts require proof of causation between the action and the class.
QUESTIONS AND ANSWERS
My favorite part of any of the Tech Tools hosted discussions is Q&A, where the audience gets to ask for clarification or voice their burning questions based on practical experiences in our industry. Below I summarize the major things I learned from this section including the importance of solidarity and role of the ally, worker classification and discrimination, potential union actions in a harassment case, steps and people involved in reporting, and tips on lawyering up.
Empowerment of Allies
Question: If a witness approached HR on behalf of the victim, can HR insist on the victim’s direct testimony before following up?
Answer: It is bad practice not to follow up with or without a victim’s testimony. It is in the employer’s best interest to deal with potentially dangerous or shameful situations before they snowball into a major organizational liability. Not all employers agree with this, however. Your best chances of getting someone to address the issue is to approach HR (or applicable “employer” representative) in a group including victim(s) and ally(/allies) together.
Independent contractors and volunteers, if victims, are not protected by Title VII or any other worker rights laws. Contractors and volunteers, if perpetrators, can be charged since they could be considered “contributing to a hostile work environment.”
Role of Unions
Your union is NOT your employer and harassment in the workplace is an employer issue. The unions’ responsibility is to enforce the contract and protect all workers in the work environment. Filing a grievance is possible but harassment may be a conflict of interest.
That said, unions may be able to help in other ways. For instance, they can provide you help with private counsel or recommend legal support. Secondly, they can help workers come together to address the problem in larger groups. Third, your union can contact the employer saying, “we know this is happening.” In some ways this is an empty threat, but it does force the employer to admit awareness of an issue. According to members of the audience, Actors Equity Association has been known to do this option particularly effectively.
Introduction to Legal Counsel
When looking for a lawyer, referrals are the best. Technical Tools of the Trade, IATSE, Minnesota Theater Alliance, and Springboard for the Arts can recommend lawyers that understand your industry. Employment lawyers are probably more appropriate than entertainment lawyers for a sex harassment case.
The audience at the Tech Tools discussion had a lot of concerns about paying for lawyers, especially since the victim of a crime may bear the additional burden of paying to fight it. Many lawyers will be willing to meet with you for a 1-hour free consultation. Bring all your physical evidence and tell your story – by the end they will be able to determine if they will or will not take your case. In either case, they will be able to recommend what your next steps need to be. When I sought a lawyer for my workplace injury, I interviewed 3 based on recommendations and chose one of them. Luckily, each was willing to meet me for a free interview, so I could find someone that I trusted and connected with before moving forward.
Contingent Fees are when a lawyer doesn’t get paid unless you get paid (via settlement or court decision). This is also common in personal injury litigation. In harassment cases, contingent fees may be in conjunction with a fee-shifting mechanism option. This was enacted to encourage people to come forward (accepting that there is a personal risk to outed-victims but also a public benefit for prosecution). In this scenario, if the defendant wins, the employer is required to pay for the lawyers who sued them.
There is one additional fee that you may run into. A retainer fee is a small fee used to pay for expenses incurred by your lawyer on your behalf (mostly filing and printing fees). Kept in a trust fund, lawyers only have access to what is required for the case, and any unused retainer will be returned to the client.
It is important to understand the terms of your representation but do not let potential lawyers fees deter you from finding justice.
Steps and Actors in a Sex Harassment Case
There was enough content, both in the chronology of actions and in the possible avenues of reporting, that I felt this section required an entirely different article. My goal was to condense this into one page so it that it could printed, scanned, or otherwise quickly referenced. The audience encouraged Tech Tools to host another of these discussions specifically on this topic (steps of reporting and whom to report to) so my hope is that this one pager will reinvigorate those conversations.
For more info on Workplace and Sex Harassment, see also…
- (PDFs) Royal Court Theatre’s Code of Behavior and Harassment/Bullying Policy
- (Podcast) The Alberta Filmmaker’s Podcast- Respectful Workplaces with Natasha Tony and Damian Petti
- (PDF) What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment
- (Video) Eastside Freedom Library Hosts “Labor and #MeToo” panel discussion
- (PDF) Harvard Research Study– Toxic Workers
- (Podcast) Hidden Brain- The Psychological Forces Behind A Cultural Reckoning: Understanding #MeToo
- (Podcast) Battle Tactics For Your Sexist Workplace- Men: You have more power than you realize. Here’s how to use it.