THE LATEST DEVELOPMENTS IN THE #METOO MOVEMENT - SONJA J. MCGILL DALLAS BAR ASSOCIATION MAY 20, 2019 - DALLAS BAR ...
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THE LATEST DEVELOPMENTS IN
THE #METOO MOVEMENT
Sonja J. McGill
Dallas Bar Association
May 20, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 2
#MeToo Movement’s
Notable Events
July 2016: Fox News’ Gretchen
Carlson files a sexual harassment
against Roger Ailes, which sets off
a stream of allegations from other
current and former Fox
employees, including Megyn Kelly.
Approximately 3 weeks later, Ailes
resigns despite denying the
allegations.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 3
#MeToo Movement’s
Notable Events
February 2017: Uber Founder
January 21, 2017: On the second Travis Kalanik resigns and the
day of the Trump Presidency, the company dismisses 20 other
Women’s March on Washington employees who allegedly
becomes the largest, single-day contributed to a toxic workplace
demonstration in U.S. History culture as reported by Susan
Fowler’s 3,000 word essay.
Notably in October 2014: Andy Rubin,
the Father of the Android, leaves
Google with a $90 million payout after
being accused by one of his
subordinates of coercing her into oral
sex—a claim the company finds
credible.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 4
#MeToo Movement’s
Notable Events
April 2017: Fox News’ Bill O’Reilly
resigns 3 weeks after a New York Times
report detailing 5 women’s
accusations of sexual harassment and
misconduct.
October 2017: The New York Times
reports allegations of sexual
harassment against Harvey Weinstein.
The accusers:
− Actors Ashley Judd, Mira Sorvino,
Uma Thurman, Selma Hayek
− Current and former Weinstein
Company employees
− Ultimately more than 100 women
bring charges of sexual harassment
and assault against him.
The Board fires Weinstein 3 days later;
his sexual assault trial in NYC is
scheduled for late 2019.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 5
#MeToo Movement’s
Notable Events
October 2017: A few days after the
Weinstein expose, Amazon suspends
Roy Price, the head of Amazon
Studios, following accusations of sexual
harassment from 2015. Price resigns
five days after his suspension.
October 16, 2017: Actor Alyssa Milano
initiates the hashtag #MeToo,
encouraging people to speak up
about personal sexual harassment
experiences. The hashtag is credited to
Activist Tarana Burke, founder of Just
Be Inc., an organization serving
survivors of sexual harassment and
abuse.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 6
#MeToo Movement’s
Notable Events
October 18, 2017: Olympic Gymnast McKayla Late October 2017: The
Maroney tweets her #MeToo story, naming first of many men accuse
USA Gymnastics doctor Larry Nassar for his actor Kevin Spacey of
years of abuse against her.
making sexual advances
− More than 150 women share similar stories
of Dr. Nassar’s abuse. against them when they
− Nassar is later sentenced to 40-175 years in were very young.
prison.
− High ranking officials from both Michigan There are 6 open cases of
State University and USA Gymnastics find sexual assault against
themselves in legal jeopardy. Spacey in the U.K.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 7
#MeToo Movement’s
Notable Events
November 2017: Roy Moore is accused of The same day,
sexual misconduct by 4 women in a
Comedian Louis C.K. is
Washington Post article run during his 2017
Senate campaign. accused by 5 women of
− Five other women similarly accuse Moore sexual misconduct,
of sexual misconduct towards them while which he admits.
they were teenagers.
− Moore loses the confidence of Senator
Richard Shelby. Two weeks later,
− Doug Jones becomes the first Democratic Senator Al Franken is
Senator since Shelby’s 1st election accused of
inappropriate groping
during a 2006 USO trip,
and more women
come forward; Franken
resigns from the Senate
on December 7.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 8
#MeToo Movement’s
Notable Events
Late November 2017: NBC The next day, Garrison
announces that it has fired the
Today Show’s Matt Lauer for
Keillor is fired from
sexual misconduct, which he Minnesota Public Radio
denies. for sexual harassment.
Russell Simmons steps
down from his
companies after he is
accused of sexual
assault.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 9
#MeToo Movement’s
Notable Events
December 7, 2017: Dylan Farrow,
Woody Allen’s adopted daughter,
writes an op-ed in the Los Angeles
Times questioning why the various
December 6, 2017: Time allegations of sexual misconduct
against him have not damaged
names “the Silence his career.
Breakers” its Person of the
Year.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 10#MeToo Movement’s
Notable Events
December 11, 2017: Eater publishes a Late December 2017: The Los
report in which 4 women accuse Angeles Times runs a story of 7
Chef Mario Batali of workplace sexual men who accuse theater
harassment. prodigy Gary Goddard of
− Batali takes leave from his show molestation or attempted
“The Chew” pending an molestation while they were
investigation. boys, following Actor Anthony
− Ultimately, ABC fires Batali. Edward’s November 2017
− Batali loses his stake in his essay alleging the same.
restaurant empire.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 11#MeToo Movement’s
Notable Events
January 2018: 5 women accuse February 2018: Steve Wynn resigns
Actor James Franco of sexually from his casino empire days after
inappropriate or exploitative a January 2018 Wall Street Journal
behavior as detailed by the Los article:
Angeles Times. − Dozens of employees describe
behavior of a decades-long
pattern of alleged sexual
misconduct.
− Includes an allegation that in
2005, Mr. Wynn paid a $7.5
million settlement to a
manicurist who told people at
the time that Mr. Wynn forced
her to have sex with him.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 12#MeToo Movement’s
Notable Events
March 2018: James Levine, the April 2018: Actor and Comedian
Metropolitan Opera’s 46 year Bill Cosby’s trial for drugging and
Conductor, is fired after an molesting a woman in his
investigation finds credible Pennsylvania home begins—a trial
evidence he engaged in sexual that includes the accounts of
abuse and harassment against other women with similar
female employees. experiences. The trial results in
Cosby being sentenced to prison
March 2018: Fortune Magazine’s for a period of 3 to 10 years.
article detailing two women who
allege Tronc chairman and
investor Michael Ferro made
unwanted sexual advances
towards them in 2013 and 2016
during separate business meetings
is published. Ferro retires from the
Board.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 13#MeToo Movement’s
Notable Events
May 2018: May 2018: Spotify
suspends R. Kelly’s music due
to the #MuteRKelly campaign.
− The campaign is a protest of
his alleged sexual
misconduct, abuse and
domination over teenage
women.
− The Chicago DA later
charges Kelly with 10 counts
of aggravated criminal
sexual abuse later following
Lifetime’s Surviving R Kelly
documentary series.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 14#MeToo Movement’s
Notable Events
July 2018: CBS announces an
investigation into allegations of
sexual misconduct brought
against CEO Les Moonves
sourced by a pending New
Yorker piece.
− Moonves resigns in
September 2018 after 6
more women leveled
allegations against him.
− The investigation uncovers
Moonves’s actions to lie and
destroy evidence
throughout, putting his $120
million severance package
in©jeopardy.
2019 Bell Nunnally & Martin LLP. All Rights Reserved.
15#MeToo Movement’s
Notable Events
August 2018: Actor Asia Argento, one September 16, 2018: Professor Christine
of Harvey Weinstein’s accusers, is Blasey Ford accuses then Supreme
herself accused of sexually assaulting Court nominee Brett Kavanaugh of
and paying off her former co-star, for a attempted sexual assault while the two
2013 incident that took place when were in high school. Justice
Argento was 37 and her co-star was Kavanaugh is later confirmed to the
17. Court after a hearing where both
testify.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 16#MeToo Movement’s
Notable Events
December 2018: Astrophysicist February 2019: According to the
Neil deGrasse Tyson is New York Times, 7 women claimed
investigated after multiple Singer-Songwriter Ryan Adams
offered to help them with their
women accuse him of sexual
music careers but then things
harassment and assault.
turned sexual, with him sometimes
becoming emotionally and
verbally abusive.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 17#MeToo Movement’s
Notable Events
March 2019: Warner Bros. CEO Kevin
Tsujihara is ousted over allegations that April 2019: Former Vice President and
he had a sexual relationship with an Presidential Candidate Joe Biden
actress Charlotte Kirk and helped her acknowledges that his tendency
get roles in movies, according to the toward physical displays of affection
Hollywood Reporter. A company and encouragement have made
investigation found no misconduct in some women uncomfortable and
the relationship but discovered a link promises to be much more mindful of
to a $450 million film-financing deal to respecting personal space.
back movies produced by the
Burbank, California-based studio.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 18Lessons from Weinstein’s Fall
Using Harvey Weinstein as
the example:
What were the warning
signs?
What could the
Company have done?
What are the lessons for
other companies to
learn?
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 19The Warning Signs
Sign No. 1: Weinstein’s Behavior was an
Open “Secret”
• The female employees for the Weinstein
Company agreed Harvey Weinstein was a
womanizer.
• Weinstein maintained an MO with all of the
women he dealt with.
• The women working for Weinstein often
partnered up for meetings so no one was
left alone in a room with him.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 20The Warning Signs
Sign No. 2: The Company’s Internal Controls Failed
Spectacularly
• The HR department in New York was ineffective.
• The HR department in London was virtually non-
existent.
• Meaning, the employees only had each other
to confide in or protect themselves.
• It is impossible to have an effective investigative
mechanism when the reporting system is
broken.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 21The Warning Signs
Sign No. 3: Insiders Failed to Speak Up
• Director Peter Jackson, from the Lord of the
Rings Series, admitted “blacklisting” Ashley Judd
and Mira Sorvino primarily based on Weinstein’s
opinion (after they refused his advances).
• Director Quentin Tarantino knew Weinstein
assaulted Sorvino, then his girlfriend, and Uma
Thurman, but did nothing.
• There were many male Company employees
who similarly did nothing to hold Weinstein
accountable.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 22The Warning Signs
Sign No. 4: The Company’s Culture
Tolerated Harassing Executive Conduct
• Bob Weinstein, Harvey’s brother, called Harvey “sick”
and “depraved.”
• But Bob was also allegedly sexually harassing an
executive producer of one of the Company’s shows
while trying to stem the damage done by his brother.
• Unless a company makes clear that sexual
harassment will not be tolerated by anyone,
especially executives, there is no hope that such
behavior against subordinates who are vulnerable
can be prevented.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 23The Warning Signs
Sign No. 5: The Board Failed in its
Oversight Duties
• Weinstein refused to allow the Board to review his personnel file
after an actress filed a police complaint against him.
• It hired an outside lawyer to review the file before renewing
Harvey Weinstein’s contract, which included a written complaint
by Lauren O’Connor. Ms. O’Connor wrote:
“I am a 28 year old woman trying to make a living and a
career. Harvey Weinstein is a 64 year old famous man and this
is his company. The balance of power is me: 0, Harvey
Weinstein: 10.”
It is unclear whether the Board ever learned of Ms. O’Connor’s letter
which she withdrew following a settlement agreement.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 24The Warning Signs
Sign No. 5: The Board Failed in its Oversight Duties
• Nevertheless, the Board did create a new code
of conduct which later became the basis of
Weinstein’s 2017 dismissal.
• Weinstein’s refusal to permit the Board to review
his personnel file was sufficient to raise alarms
for the Board to order an independent probe.
• The Board ordered investigation occurred way
too late for so many employees.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 25Lessons to be Learned
• The Company tolerated an environment
lacking any accountability.
• The weak/non-existent human resources
department undermined any opportunity to
escalate the harassment to “need to know”
executives or Board members.
• The broken complaint system allowed the
problems to fester and grow.
• The employee whisper network was ill-
equipped to protect victims.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 26Real World Impact of
#MeToo Movement
A Marked Increase in EEOC Charges
The EEOC charge statistics for FY 2018
• Sexual harassment claims spiked up at a rate of 13.6
percent from FY 2017 although FY 2018 saw the total
number of charges fall to a 12-year low.
• In real terms, 7,609 sexual harassment charges were filed
in FY 2018 compared to 6,696 sexual harassment
charges filed in FY 2017.
• This increase also represents the highest number of
sexual harassment claims the agency has seen since
2011.
Source: www.EEOC.gov and “EEOC Discrimination Charges Fell to a 12-Year Low in FY 2018,” Law360, April 10, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 27Real World Impact of
#MeToo Movement
High-Profile Cases after #MeToo
• Louisette Geiss, et al v. The Weinstein Company, et
al filed in the Southern District of New York, originally
filed in December 2017
• Nancy Saltzman v. EXL Service Holdings, Inc., et al in
New York State Court, originally filed in April 2019
• Irene Politis v. Columbia University and Thomas
Harford in the Southern District of New York,
originally filed in August 2018
• Donna Kassman, et al v. KPMG, LLP in the Southern
District of New York, originally filed as a gender pay
disparity case in June 2011
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 28High-Profile Cases after
#MeToo
Louisette Geiss, et al v. The Weinstein
Company, et al
− The Actor Plaintiffs allege Weinstein engaged in unwanted
sexual conduct that took many forms: flashing, groping,
fondling, harassing, battering, false imprisonment, sexual
assault, attempted rape and/or completed rape.
− The Plaintiffs were fearful of being blacklisted if they refused
Weinstein’s unwanted sexual advances or complained about
his behavior because of his status in the industry.
− And Weinstein allegedly engaged in this pattern of conduct
as a Sexual Enterprise, similarly to a RICO organization, and the
many cohorts, which included the Board, either facilitated or
concealed Weinstein’s pattern of unwanted sexual conduct.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 29High-Profile Cases after
#MeToo
Nancy Saltzman v. EXL Service Holdings, Inc.,
et al
− Saltzman was the Company’s only female General Counsel/Executive Vice
President for four years and the only female on the Executive Committee.
− She alleges she was unnecessarily micromanaged, subjected to enhanced
scrutiny, and excluded from career and advancement opportunities unlike
her male counterparts.
− During a company anniversary celebration, the CEO allegedly personally
directed Saltzman to serve cake to the Company’s junior male employees,
including her subordinates, because she was one of four “ladies” in
attendance.
− Before she was even hired, the President and COO allegedly asked whether
Saltzman was “attractive,” and thrilled she “wore a short skirt.”
− She was allegedly forced to resign following her complaint to the Chair of the
Audit Committee about the disparate treatment and harassment she
experienced.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 30High-Profile Cases after
#MeToo
Irene Politis v. Columbia University and Thomas
Harford
− Politis was referred to Harford, then the dean of students,
for emergency housing and other assistance after she was
raped in May 2018. After gaining her trust, he allegedly
initiated a sexual relationship with Politis.
− The dean then unilaterally assumed control of her
continuing mental health treatment, and her access to
receiving disability accommodations from the university.
− The university allegedly became aware of the
inappropriate relationship, including the fact that Harford
gave the Plaintiff money and that they were frequently
exchanging text messages, but the school “failed to take
steps to protect Ms. Politis from harassment.”
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 31High-Profile Cases after
#MeToo
Donna Kassman, et al v. KPMG, LLP
− Allegations of wide-spread, company-wide sexual harassment in Tax
and Advisory were added to this long-running disparate
compensation and promotion case.
− Strip clubs are allegedly used by male employees as a second office
or a benefit of working at KPMG
− Women are allegedly valued based on their willingness to conform to
sexualized stereotypes and being sexually available, rather than their
professional abilities.
− Some of the class members have filed criminal sexual assault
charges, including rape and attempted rape, by their male co-
workers at work events.
− KPMG allegedly characterized numerous complaints of sexual
harassment as a “lack of professionalism.”
− The Plaintiffs allege that many women are discouraged from
complaining internally due to a perception that the company will not
take any remedial action.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 32Real World Impact of
#MeToo Movement
The Backlash
• There is an ongoing discussion about the fact that men are
responding to the #MeToo movement by limiting their interaction
with female employees for fear of being falsely accused of
harassment.
• In a SHRM study conducted last year, 1/3 of the executives said they
changed their behavior in the wake of the #MeToo movement to a
“moderate to very great” extent.
• Some of those polled stated they “don’t talk to women” while others
said that mentorship programs had been changed to eliminate
“senior-junior work teams of only two individuals.”
• Also, in a survey by the Working Mother Research Institute and the
ABA Journal, 56% of men believed a heightened perception of
improper behavior may surround one-on-one mentoring and
sponsorship relationships.
Source: “Afraid to Mentor Women Because of #MeToo? Time to Man Up,” Law360, March 12, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 33Real World Impact of
#MeToo Movement
The Backlash
• Of course, all those responses are per se discriminatory and
potentially damaging to any organization committed to
promoting and advancing women leaders because it is
“good for business,” i.e., its image improves and doing so
keeps its customer/client base happy.
• The truth of the matter: most of those choosing not to
mentor women due to #MeToo probably were not
mentoring women before, and are using this as an excuse
to validate their prior behavior.
• Those are not my words but other male practitioners in the
employment law space.
Source: “Afraid to Mentor Women Because of #MeToo? Time to Man Up,” Law360, March 12, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 34Real World Impact of
#MeToo Movement
How to Remedy the Backlash?
The Reverse Weinstein Effect: Adopting any ethos that stamps out
discrimination is everyone’s responsibility, not just HR. Everyone is
accountable for rooting out improper/unprofessional workplace
behavior.
Conduct Rigorous Health Checks: Ensure that an organization’s
policies are rigorously enforced throughout the organization and
give employees comfort that good-faith complaints will be
properly addressed.
Move Quickly: When a company validates a good-faith
complaint, move quickly to send the signal that bad/illegal
behavior will not be tolerated. If employees believe complaints
will twist in the wind, that is when an ember becomes a brushfire.
Source: “”Doing the Right Thing on #MeToo and Gender Equity-Priorities for CEOs and Board Members,” Forbes, January 5, 2018
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 35Real World Impact of
#MeToo Movement
Mentoring Women is not Rocket Science
Be intentional to identify female mentees: If the only people asking you
to mentor them are men, you are not making yourself equally available
to both men and women.
Be transparent in your development practices: When you develop
subordinates, where does this usually occur and in what context? If you
feel more comfortable mentoring women over lunch or during a coffee
break, then you should be mentoring men in the same manner, so that
everyone has an equal chance for your time and attention.
Listen with empathy to ask good questions: Quality mentoring means
giving people challenging assignments that allow them to grow but you
also have to be available/present to listen to what your mentee needs.
Do not assume that what makes you tick is the same as your mentee but
you must listen to them to understand how to help them grow.
Source: “”Advice for Men Who are Nervous About Mentoring Women,” Harvard Business Review, March 15, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 36Real World Impact of
#MeToo Movement
Mentoring Women is not Rocket Science
Acknowledge gender issues exist: Men and women are treated
differently at work. Ask your mentee how about her experiences
in your organization and whether she considers that culture to be
beneficial to her advancement. If she is feeling stunted because
of her gender, she will tell you.
Actively sponsor female mentees and help them connect with
other sponsors: If you have a position of influence, figure out
ways to help your mentee raise her visibility. Introduce her to
others who are influential and offer her up as a high potential
candidate for promotion, both in informal and formal
conversations.
Source: “”Advice for Men Who are Nervous About Mentoring Women,” Harvard Business Review, March 15, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 37Real World Impact of
#MeToo Movement
Proactive Measures
• Tax Control and Jobs Act of 2017
• “No deduction shall be allowed under this
chapter for (1) any settlement or payment
related to sexual harassment or sexual
abuse if such settlement or payment is
subject to a nondisclosure agreement, or (2)
attorney’s fees related to such a settlement
or payment.”
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 38Real World Impact of
#MeToo Movement
Proactive Measures
• What does the new tax law do?
• Companies can no longer settle a sexual
harassment claim with a NDA while also
deducting any payments related to the
matter, including the settlement payment
and attorney’s fees.
• The IRS issued clarifying language earlier this
year that this prohibition only allows to
companies, not plaintiffs.
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 39Real World Impact of
#MeToo Movement
Proactive Measures
M&A Language
• Based on the reputational and financial
damage the #MeToo backlash poses, many
M&A deals are now carving out sexual
harassment claims as specific deal terms
that have enormous consequences and
geared to protect buyers.
Source: “MeToo Movement Molds New Protections in Mergers,” Law360, January 18, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 40Real World Impact of
#MeToo Movement
Proactive Measures
• Merger contract for AthenaHealth
• To the knowledge of the Company, no
allegations of sexual harassment in the last
five years have been made to the
Company against (A) any current director
of the Company or (B) any individual in his
or her current capacity as an employee of
the Company at a level of SVP or above.
Source: “MeToo Movement Molds New Protections in Mergers,” Law360, January 18, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 41Real World Impact of
#MeToo Movement
Proactive Measures
• Merger contract for Pacific Biosiences of California,
Inc.:
• To the Company’s knowledge, in the last ten years,
(a) no allegations of sexual harassment have been
made against any Company Employee who is (i) an
executive officer or (ii) at the level of SVP or above,
and (b) the Company and its Affiliates have not
entered into any settlement agreements related to
allegations of sexual harassment or misconduct by
a Company Employee.
Source: “MeToo Movement Molds New Protections in Mergers,” Law360, January 18, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 42Real World Impact of
#MeToo Movement
Proactive Measures
• Merger contract for Investment Technology Group, Inc.:
• The Company and each of its Subsidiaries has promptly,
thoroughly, and impartially investigated all sexual
harassment allegations of which it is or was made aware.
With respect to each such allegations with potential
merit, the Company or its Subsidiary has taken prompt
corrective action that is reasonably calculated to
prevent further harassment. The Company does not
reasonably expect any material liability with respect to
any such allegations.
Source: “MeToo Movement Molds New Protections in Mergers,” Law360, January 18, 2019
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 43Thank you for your attention
Questions or Comments
Sonja J. McGill
smcgill@bellnunnally.com
214-740-1497
© 2019 Bell Nunnally & Martin LLP. All Rights Reserved. 44You can also read
