Keith Rohman recently spoke on the Cuomo investigation at this conference.

From Berkeley Law

By Andrew Cohen

From the searing statistics to the harrowing human impact, a recent Berkeley Law conference on workplace sexual harassment underscored how pernicious and prevalent the issue remains.

A roster of renowned panelists — including former Fox News hosts Gretchen Carlson and Julie Roginsky, both of whom filed sexual harassment lawsuits against then-chairman and CEO Roger Ailes that led to high-profile settlement agreements — offered pragmatic strategies for fighting the problem. Presented by the Berkeley Center on Comparative Equality &  Anti-Discrimination Law, the event examined the issue from a domestic and international point of view, focusing on skills for litigators, advisors, investigators, and human resources professionals.

“We all have a stake in this, men included,” Carlson said during a keynote discussion with Roginsky and Ifeoma Ozoma at the virtual conference. “I never aspired to have on my resume, ‘Poster child for sexual harassment in the workplace.’ … But I heard from so many women — first it was dozens, hundreds, then thousands. I realized this is an epidemic.”

In 2019, Carlson and Roginsky co-founded the nonprofit Lift Our Voices, which strives to end the use of forced arbitration, non-disclosure agreements (NDAs), and other tools organizations wield to prevent women from publicly revealing their experiences with toxic work environments.

Carlson, one of Fox News’ most successful on-air journalists during her 11 years there, was named one of Time Magazine’s 100 Most Influential People in the World. She has become a best-selling author and her story was the subject of the Showtime mini-series “The Loudest Voice” and movie “Bombshell.”

Roginsky, a nationally known political consultant, was a regular Fox News contributor starting in 2005. In 2017, almost a year after Carlson’s lawsuit, she filed a sexual harassment and retaliation suit against Fox News and Ailes, alleging that she was denied a position co-hosting the afternoon show “The Five” after refusing to have a sexual relationship with Ailes.

Pushing to be heard 

“When Gretchen filed her lawsuit in 2016, I remember hearing about it and thinking, ‘This woman is going to get destroyed,’” Roginsky said. “It wasn’t a surprise to me Gretchen was alleging what she was alleging, I was just surprised she was doing it publicly. She was able to take on the most powerful man in the media and succeed. That gave so many of us so much inspiration.”

Now, through legislative advocacy and other policy reform efforts, Roginsky and Carlson aim to remove employer mechanisms that perpetuate workplace harassment. They partnered with a bipartisan coalition to introduce and advocate for the Ending Forced Arbitration of Sexual Harassment Act, which recently passed both the Senate and House Judiciary Committees.

“Fixing this issue is a tangled web,” Carlson said. “Julie and I believe our work is the silver bullet to eradicate NDAs and forced arbitration and getting to equity. All these women want to do is work, and instead we as a culture have pushed them out. That’s what we’re trying to stop.”

At the time of Roginsky’s lawsuit, she says numerous women she worked with on the campaign of Democratic New Jersey Gov. Phil Murphy complained of toxic workplace issues and relayed stories about potential corruption, mysoginy, and sexual harassment.

“I went to the governor and told him about it, and he fired me within 48 hours,” Roginsky said. “He reminded me strongly that I’d signed a very stringent NDA the first day of working for him.” In 2019, she added, Murphy signed into law a bill that bans NDAs in cases alleging discrimination, retaliation, or harassment.

“Whether you’re conservative or liberal, misogyny knows no political affiliation,” Roginsky said.

Turning turmoil into traction  

Ozoma, founder and principal of the consulting firm Earthseed, is a tech policy expert who has led high-level initiatives at Pinterest, Facebook, and Google. A co-sponsor of California’s Silenced No More Act — which Gov. Gavin Newsom signed into law in October to expand protections for people who speak up about discrimination in the workplace — she resigned from Pinterest in 2020 after alleging that she experienced mistreatment and racial discrimination there.

Ozoma helped launch a new website, The Tech Worker Handbook, with whistleblowing information for employees. She said she first voiced a complaint in September 2018 upon learning that she was paid less than half the salary of a white male colleague.

“What was different for me personally was just how aggressively the company was willing to go,” Ozoma said. “I figured they’re not going to want to fix it, but they’ll fix it to keep me quiet. But they didn’t do that. When I hired a lawyer I thought surely now they’ll find a solution, but instead the retaliation started.”

Ozoma said when she left Pinterest, she was presented with an NDA.

“If I didn’t sign, I wouldn’t have been able to keep my health insurance,” she explained. “We were at the beginning of a global pandemic and I didn’t want to lose my medical coverage. But after signing it, and talking with my lawyer about the legal risk, I decided to break the agreement and talk about what I experienced. Since then I’ve heard from thousands of tech workers at Pinterest and outside the company who had the exact same experiences I did.”

Noting that many workers can’t afford a lawyer, Ozoma said NDAs and mandatory arbitration “are just another way of retraumatizing folks to force them to be silent.”

Exploring all angles 

The two-day conference provided a deep dive into the problem’s many layers. Panels addressed new legal developments, the link between diversity and inclusion and gender-based harassment and violence prevention, new ideas for legislation and policy changes, changing corporate culture and governance, sexual harassment in the legal profession, lessons from the Andrew Cuomo investigation, addressing harassment at the Ninth Circuit, prevention and training, legal ethics in investigations, and the social science of workplace harassment.

Speakers also described how technology has fueled both new arenas for harassment and new ways to combat it.

“It’s now a 24/7 ability to harass or bully,” said Sheppard Mullin partner Tracey Adano Kennedy. “The lines are increasingly blurred between work and play.”

Workplace rights lawyer Latika Malkani, a partner at Siegel LeWitter Malkani, noted that, “If we were living in the material world in the ’80s, post-2020 we’re living in the digital world. It’s on Slack and other internal communication systems. You see suggestive or coercive emails or texts, and people forget it’s a writing you can’t erase.”

David Lowe ’95, managing partner at Rudy Exelrod Zieff & Lowe, noted that while companies have increasingly better harassment policies and more tools available to conduct investigations when employees lodge complaints, the underlying problems persist.

“We’re continuing to see gaslighting of sexual harassment claims,” he said. “If the outcome to the employee is, ‘We didn’t find violation of our policies,’ or ‘We’re open to providing an apology if you felt offended,’ there’s a concern about not being taken seriously. It’s not a matter of having better policies; there’s a cultural shift that needs to happen.”

Former California State Sen. Hannah Beth Jackson discussed progress in diversifying company boards. She noted the Securities and Exchange Commission’s recent decision requiring NASDAQ-listed companies to have at least one woman on their board of directors, as well as one person from a racial minority or who identifies as LGBTQ.

The path forward

Roginsky said over one-third of American workers are restricted by NDAs, and cited research showing that almost 65% of workers making $13 or less an hour are subject to forced arbitration.

“These are the most disadvantaged people of our society bound by these concealment clauses,” she said. “The reality is that all women want to do is work, be treated with respect, go home to their family, and advance in their career based on the merits.”

Noting that “this issue crosses every socioeconomic background, race, and profession,” Carlson described the movement of shareholders to pressure companies to eliminate NDAs and forced arbitration in their contracts.

A Goldman Sachs shareholder, she said that while the board voted unanimously to keep forced arbitration, 53% of shareholders voted to abolish it. As a result, “Goldman Sachs changed their stance, and in a Friday night news dump said they’d examine their use of forced arbitration.”

Carlson also touted the importance of bipartisan support for legislation, noting that Republican Sen. Lindsey Graham and Democratic Sen. Kirsten Gillibrand are co-sponsoring the Senate bill to end forced arbitration for sexual harassment and assault.

“This would be one of the biggest labor law changes of the past 100 years,” she said.

Urging students and young professionals to fight workplace harassment, Carlson said, “You have the power. They want to hire you; it’s an employee market now like it’s never been before. When they come to recruit you, say you’re not going to work there unless they take these clauses out. That’s one way young people can help this movement.”