December 12, 2019 • 28 mins
Just weeks ahead of the Harvey Weinstein trial, Dean Alex Colvin and Douglas Wigdor, a top employment lawyer who has been at the forefront of many high-profile sexual harassment cases, discuss #MeToo and the workplace.
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Diane Burton (00:00):
Work is all around us.
It defines us and the future ofwork impacts nearly every person
on our planet.
The ILR school at Cornelluniversity is at the center of
work, labor and employment,influencing policy and practice
on the most pressing issuesfacing employees and employers.
In this episode, Dean Colvin andlitigator Douglas Wigdor discuss
(00:24):
the impact of the Me Toomovement on sexual harassment in
the workplace.
Alex Colvin (00:34):
Well, thanks very much for joining us today.
This is a chance to reflect backon something that I was just
realizing is more recent than Ithink we often think.
So this is about two years sincethe Me Too movement kicked off
and I was just hearing that statand it feels like it's been
(00:54):
much, much longer.
This has been something that'sbecome such a big part of our
culture and how people thinkabout issues around sexual
harassment in the workplace.
So just to kinda kick things offI'd be really interested in your
take, you know, somebody who'sreally represented, a lot of
clients in major Me Too typedisputes.
(01:18):
You know, thinking about whathas been the impact of this
movement in, you know, two shortyears.
Doug Wigdor (01:24):
Well, Alex, thank you for having me, first of all.
And I think that you're correctthat the Me Too movement as we
know, it started in 2017 whenAlyssa Milano, who has been
credited with popularizing theMe Too slogan, but, and she did
that to encourage people to comeforward and say, Me Too, if they
(01:48):
had experienced sexualharassment or assault to give a
sense of the magnitude of theproblem.
But I think in order to look atwhere we are now, we really need
to go way back because this hasbeen a steady slow movement that
goes back really to the creationof sexual harassment laws.
(02:10):
Believe it or not, that thatstarted to come about in the
1970s when women were enteringthe workforce and sexual
harassment was just starting tocome about.
And the law was starting tochange.
Of course, you know, you had thevery popular cases of William
Kennedy Smith, Anita Hill,Monica Lewinsky.
(02:33):
And to fast forward, actuallythe Me Too slogan actually
wasn't Alyssa Milano.
It was actually a woman by thename of Tarana Burke who came up
with that slogan back in 2006.
And she is and was a civilrights activists, and she began
to use this phrase, Me Too, thiswas before Twitter, but used
(02:58):
that slogan to raise theawareness of and pervasiveness
of sex abuse and assault insociety.
And she was really focused onpeople of color and people in
marginalized communities.
So it's been a slow, steadyprocess to where we are now.
And things have obviouslychanged since 2017.
Alex Colvin (03:24):
Yeah, I mean, I think, you know, think back to
the Clarence Thomas hearings,right, when I was in law school,
you know, almost 30 years agonow when it seemed like, you
know, this issue was firstgetting that really big public
attention.
Maybe that's what the attentionto the hashtag Me Too the last
(03:46):
couple of years is, is that, youknow, increase o f public
attention, right?
So a refocusing again, right.
And we've sort of seen these kind of, I guess waves of
attention to a problem thatdoesn't seem to go away.
Doug Wigdor (03:57):
Yeah.
And it doesn't go away becauseof a number of different
problems in terms of thepeople's perceptions of people
who have been sexually assaultedor people who are survivors.
And I think Anita Hill was agood example of this, but there
are many other women including,my former client, Nafissatou
(04:18):
Diallo, who was raped byDominique Strauss-Kahn, who was
kind of, would've been the nextpresident of France.
But the problems tend to be thatpeople unfortunately don't tend
to believe the events happen theway someone who comes forward as
a survivor says.
(04:39):
They often blame victims.
They often discount the injuryand there's, there's a lack of
care.
And so those things arechanging.
Here we are in 2019 we're a fewweeks away from the Harvey
Weinstein criminal trial that'sexpected to start in January.
And that I think that trial Ithink would be a really
(05:01):
important litmus test to seereally where we are.
Because as we know HarveyWeinstein's defense is going to
be to attack victims and, andto, to, to use the, some of the
old generalizations that peopleused to think were true.
For instance, that if a womancame to a man looking for a job
(05:24):
and something happened thatwasn't necessarily a bad thing
and she put herself intoposition and then if after she
was sexually assaulted, she wentback to see that person that
would undermine her credibility.
These are the sorts of thingsthat Harvey Weinstein in January
is going to use to try anddiscredit the victims.
(05:44):
And it'll be interesting to seethat what happens in 2020, three
years after the Me Too movementhas really kicked off.
Alex Colvin (05:53):
So you do get exactly that kind of response,
where there's sort of anassumption that somehow if the,
you know, if you can show thecharacter of the victim, is, is
not perfect, right, thatundermines the allegation.
I mean, you've, you'verepresented clients subject to
these kinds of attacks.
I remember the Strauss-Kahncase, we saw some of that.
(06:15):
How do you respond that, how doyou, how do you kind of get past
those kinds of attacks?
How do you respond to that?
Doug Wigdor (06:21):
Yeah, I mean, it's really hard and unfortunately
there are even some, you know,plaintiff's lawyers we saw, for
instance, Lisa Bloom, who is,who had held herself out as a
women's right activist.
She's the daughter of GloriaAllred.
But what we found out was thatshe was working for Harvey
(06:42):
Weinstein in an effort toundermine Rose McGowan and to
attack her character andcredibility.
So this is a problem.
And what, I mean, first of all,the, the courts should be the
gatekeeper here to prevent thesethings from happening.
There are different federalrules of civil evidence and
there are other state rules thatprevent these things from
(07:05):
happening.
But unfortunately in myexperience, judges often permit
discovery into things that I, Ithink that they ought not to.
And of course there's thedissemination through newspapers
and social media of negativethings about clients or women
(07:26):
who come forward and claim thatthey've been sexually assaulted.
And that that's exactly whatLisa Bloom is going to do with
Rose McGowan.
And unfortunately, for instance,in the Dominique Strauss-Kahn
case, there were the New YorkPost on the ran a story that she
was a prostitute, which wasblatantly false, but it was an
attempt to undermine hercharacter and her credibility.
(07:50):
So we really need to, to, tomake sure that these things
aren't happening because whatthey do is they act as a
disincentive for people to comeforward.
If they know that their Facebookand their social media is going
to be turned upside down.
Every picture there is going tobe examined and looked at and
the defense lawyers are going tobe able to ask them questions
(08:10):
about prior partners that theyhad and, and other other things
like that.
It's gonna be a realdisincentive for people to step
forward.
Alex Colvin (08:19):
Yeah, I mean, it's something that seems like
there's a process where some ofthe cases get litigated in, in
the PR space, right, through themedia.
You know, at the same timethere's a court case going on.
But you know, are there ways inwhich, you know, the public
pressure can be used in apositive way to help b ring the
(08:44):
claims.
Does that help you sometimes?
Doug Wigdor (08:47):
It does.
It helps because in myexperience, someone who has
committed an act of sexualassault typically hasn't done it
just one time.
Right?
So in my experience, by comingforward, other people will come
forward and that obviously is agreat asset to have when trying
(09:10):
to hold somebody accountablebecause the, the rules of, of
evidence in certaincircumstances permit other woman
to support the victim.
If it shows, for instance, amotive or intent or a modus
operandi.
In fact, in the Bill Cosby case,that was, that was used and it
(09:31):
will be used as well in theHarvey Weinstein case.
One of my clients actually isgoing to t estifying in that
trial as, as what we call aMolineux witness, but w ill be,
she's not the main victim of thecase, but that she had a similar
thing happened to her thatsupports the victims.
And so to answer your q uestionspecifically, these things are
(09:52):
coming out into the public isimportant because it usually
brings out other people.
Alex Colvin (10:00):
Yeah.
So one of the things that, youknow, is, is a challenge in
getting that public attention isan issue both you and I have
have, dealt with, which ismandatory arbitration, right?
And this is, you know, for ourlisteners, you know, where the
employer requires the employeeto sign an agreement to
(10:21):
arbitrate any disputes againstthe company, right.
And this is, this is mandatorybecause you have to sign it if
you want the job, right.
It's not, there's not a choicethere.
And the problem you run into,you know, it might sound good in
theory, you get something otherthan the courts and not
everybody loves being in thecourts, but the reality is this
is something set up by theemployer, ad when you get in it,
(10:43):
it's a private forum so that youdon't get to tell anybody in the
public about what's been goingon.
You know, one of the most famousexamples of this was with the
Fox news, Me Too cases andGretchen Carlson there who had a
public platform through being ajournalist, was forced into this
(11:06):
private forum where she couldn'ttalk about her case.
Maybe, could you tell us alittle about your experience
running into mandatoryarbitration and how it's
affected the cases that you'vehandled?
Doug Wigdor (11:19):
Yeah, and I was involved in the Roger Ailes and
Bill O'Reilly cases as well, andwas faced with that identical
problem.
And, and what Gretchen did, andwhat many others have done in
those circumstances is in aneffort to get around it,
although legally it'squestionable whether it would
ultimately prevail, was to sueindividuals who they had not
(11:43):
entered into an arbitrationagreement with rather than sue
the company.
Alex Colvin (11:46):
So she sued Roger Ailes personally rather than Fox
News.
Doug Wigdor (11:50):
That's right.
Yeah.
And because she and Roger Aileshad not had a contract that
required arbitration, althoughshe and Fox did that, that
arguably covered theirexecutives and employees.
But this, but this problem, andI'll call it a problem because
it, in my view, it's a problembecause it, it forces people
(12:14):
into a confidential arbitrationprocess before an action arises.
So as they start theiremployment, they're given, as a
condition to working at thecompany, they're told if they
don't sign this, then they can'twork there.
Most people would sign it andnot think twice because you
don't think they're going to besexually assaulted in the
(12:35):
workplace.
Alex Colvin (12:36):
Yeah.
Nobody would take the job if youthought that.
Doug Wigdor (12:38):
Yeah.
And then three, four, or fiveyears later, something happens
and then all of a sudden, theemployer breaks out this
agreement that was signed on, onthe day of the first day of
employment.
And the problem is, is thatreally you're, you're now
forcing a decision on a survivorthat is really not fair.
(12:59):
That decision should be made atthe time of filing the lawsuit.
And this is not, this is notonly true in the employment
context and it's also trueoutside the employment context.
For example, I represented over25 women who were sexually
assaulted or raped by Uberdrivers and they, they were not
(13:23):
employees of Uber.
When they signed up for Uber intheir terms and conditions that
they agree to when theydownloaded the app, they agreed
like everybody else who got theUber app, to binding
confidential arbitration andsome of these arbitrations,
believe it or not, were to takeplace in the Netherlands.
Alex Colvin (13:44):
Right.
Conveniently located foreverybody taking an Uber in New
York city.
Doug Wigdor (13:48):
Exactly.
And so what we did is we did anopen letter, which basically it
was a letter to the board of, ofUber and it was on behalf of our
clients and asking them to doaway with this mandatory
(14:08):
arbitration provision.
And to their credit, they, theydid that.
They've now done away with themandatory arbitration provision
for not only sexual assaultcases, but sexual harassment
cases as well.
And there are other companiesthat have followed their elite
leading views on that, which,which is a good trend.
Alex Colvin (14:32):
Yeah.
It's kind of interesting thatwe've seen certain companies
responding this way, right?
So Uber, making changes.
Google's, the other one thatjumps to my mind, right.
That, Google was also usingmantra arbitration and it turns
out that they've had issues ofsexual harassment by at least
one of their executives.
(14:52):
And you don't know if there aremore cases, but at least one
major executive was forced toresign with a pretty substantial
golden parachute, because ofsexual harassment issues.
And they responded right afterthe Google employees started
walkouts and pressure campaigns.
You know, I, I've been kind ofinterested in looking at these
(15:13):
because it seems like there arethese cases where the public
pressure makes a difference.
The Ubers the Googles.
I do wonder, you know, how farthat that spreads right?
Are, is that gonna be effectivein a broader set of employers or
not?
Right?
Does it really substitute?
Doug Wigdor (15:33):
Yeah, sadly, I don't think it is going to be a
trend.
I would hope it would be, but Idon't think that will be the
case.
More times than not,unfortunately.
I get a very nasty letter fromthe company's lawyers
threatening both myself and myclient, that if they were to do
anything public, that they'll,they'll sue for breach of
(15:54):
contract and all the damagesthat would result from public.
And, you know, we just actuallysent an open letter to DLA
Piper, which is one of thelargest law firms in the world.
You would think that a law firmwould try and lead by example
and not force arbitration ontheir, their attorneys who have
(16:17):
been sexually harassed orsexually assaulted.
But unfortunately, not only havethey refused to waive the
arbitration provision, they are,they're defending that case in a
pre- Me Two textbook manner ofattacking the victim.
Alex Colvin (16:33):
Right.
You know, one of the thingsthat's, that's striking about
this area is that, you know, youdo see you do see companies that
you think would be, trying tohold themselves out as, as
exemplars of good behavior, youknow, go on for pretty hard ball
tactics.
(16:54):
What one of the things that Ithink is an interesting question
that a lot of people wonder is,you know, are there better
alternatives?
Right?
You know, we know that, youknow, sometimes the, the courts
aren't as friendly to plaintiffsas they might be.
You know, you've talked about,you know, the sort of suspicion
of the victim.
Mandated arbitration, right?
Arbitration sounds like a goodalternative, but if it's this
(17:16):
mandatory structure that's notreal helpful.
Are there other ways that wecould be resolving these
conflicts better?
Something like mediation, right?
Do you find mediation's a usefultool in these cases?
Doug Wigdor (17:33):
Yeah, I think.
So mediation, which is anon-binding process where a
neutral person tries tofacilitate a resolution amongst
the parties, is, is definitelysomething that, that I have used
over the years.
Many times successfully.
I would say though that amandatory mediation process
(17:56):
though is something I would, Idon't think is particularly
helpful because if somebody isbeing compelled to mediate,
they're usually not going toreally go into the process, in
good faith.
Mediation, you need both sidesto be there and want to be
there.
So mediation is good if bothsides want to do it, but if one
side doesn't want to do it, thenI think it's a waste of time.
(18:18):
Right.
And so, you know, you're notreally in a voluntary situation,
right.
So the idea that, you know, kindof, ideally you want to have
voluntary consensual ways, butyou know, that requires two
sides to tango if you're goingto do that.
Yeah.
I mean, unfortunately therereally is no perfect system.
You know, there are definitelypros and cons of arbitration as
(18:38):
well as, as, as the courtprocess as well.
But I think what I would say isthis, is that at the end of the
day, the choice, in my view,should be left to the victim
after the occurrence of whathappened because the person's
already been victimized once andto be forced into some sort of
(19:02):
dispute resolution system thatthey don't want to partake in,
to me is, is making the, theunderlying, violence that
happened to them even worse.
Alex Colvin (19:15):
Kind of ties into something that I think has been
a tough issue to deal with andthat's the question of the role
of nondisclosure agreements.
Where many times you havesettlements of these complaints
involve a nondisclosureagreement.
So you get the settlement, butyou know, you can't then talk
about what happened.
(19:35):
And that strikes me as a toughissue because then you no longer
able to communicate whathappened and, and bring
attention to, you know, whatcould be a serial perpetrator.
At the same time, you know, youcan understand the victim's
desire not to have, you know, towant to have privacy themselves
(19:55):
and to, to have, you don't havetheir reputation attacked in the
public.
You k now, what are yourthoughts on, on the
nondisclosure agreement problem?
Doug Wigdor (20:09):
It's a really difficult question and
situation.
I think that Gloria Allred hasbeen unfairly attacked, for
example, by Jodi Kantor andMegan Twohey who wrote the book,
"She Said," With the Weinsteincase, they did a podcast in
which they essentially blamedher for entering into
(20:31):
confidential settlementagreements.
And that's because people didn'tknow about it.
It permitted Harvey Weinstein tocontinue to do what what he did.
But it's not that simple becauseas you just noted, many of our
clients don't want to be, doanything public.
And so, you know, th e, ofcourse the co mpany's p aying
(20:53):
for confidentiality to someextent, but our client also
doesn't want their name outthere and not every client, but
a lot of clients.
And so I think you have to giveultimately the survivor the
choice of what they want.
But what I would say is this,this is the, this is the one
thing where the law really needsto develop is in terms of
(21:14):
holding executives, directorsand officers liable for the
conduct of their senior levelpeople who they know have
engaged in unlawful conduct andha ve s ettled cases in the
past.
You know, we saw with HarveyWeinstein, his brother Bob
Weinstein and the otherdirectors and officers know
(21:35):
about his conduct.
It's the same thing was truewith Bill O'Reilly.
Fox knew about his conduct, butunfortunately the way the loss
of the law on holding directorsand officers liable goes back to
the beginning of time.
And, and the only way you canhold a director and officer
liable for an intentional act ofsomeone like Harvey Weinstein is
(22:00):
where the defendant HarveyWeinstein uses, what we call a
chattel, usually some sort ofequipment from the company or
and so basically, unless theyuse like the company car or they
do it on the company property,
Alex Colvin (22:15):
Or the office.
Doug Wigdor (22:17):
Or the office.
There's no way of doing it.
But of course, what we know isthat most of these sexual
assaults take place either inhotels or somewhere else.
And so it doesn't really addressthe question is what, which is
this is whether it's foreseeableenough.
Should, the directors andofficers know that this might
happen?
Is it foreseeable?
But unfortunately the courtshave not adopted that standard
(22:40):
as of now.
Alex Colvin (22:43):
Yeah.
I think this does feed a publiccynicism about the law in this
area.
You know, as well as, as theliability talking about, you
know, there's also thesituations where companies do,
you know, get the person to stepaside, you know, sort of exit
from the company and they walkaway with, you know, tens of
(23:07):
millions of dollars in someexecutive contract.
You know, which at the sametime, if a, you know, regular
rank and file employee isterminated, they get nothing,
right?
There's no just cause, there'sno severance.
But then you see examples likethis Google one where the
executive walked away with tensof millions of dollars in a
golden parachute.
And, you know, I think, you knowfeeds outrage.
Doug Wigdor (23:29):
Yeah.
I mean, we just saw, you know,WeWorks CEO and founder Adam
Neumann walk away with hundredsof millions of dollars and I
represent his former chief ofstaff who he marginalized,
sidelined because when she cameback from her maternity leave
and paid her l ess than somebodywho was doing the exact same job
(23:52):
as she was.
And so, you know, with BillO'Reilly, it was even worse.
They renewed his contractknowing that he had engaged in
these, these types of conductand put a provision in his
contract where he would have topay a certain fine if h e did it
again in the future.
(24:13):
So they actually contemplatedthat this would happen a gain.
Alex Colvin (24:18):
One of the things I think is significant about the
Me Too movement, when we look atthe public attitude about the
fairness of our system, oureconomic system and structures
of power and our corporations,is that it, it exposes, sort of
a lack of accountability in theupper echelons, right?
(24:38):
When you see this sort of theHarvey Weinsteins, the Matt
Lauers, the, you know, the chiefexecutives who are, you've been
getting away with this for a while and they don't seem to be
genuinely held accountableoften.
Right.
Even if there's you know,successful lawsuit, i t's often
the company paying the money.
Right.
And so, you know, you do getthis public frustration.
Doug Wigdor (25:01):
Yeah.
I mean, I mean it really itemanates from the lack of senior
women in C-suite positions andhaving, you know, very few women
in these companies who are theCEOs or running the companies
who, in my view, wouldn't,wouldn't tolerate this conduct
(25:23):
and turn a blind eye to it.
And, and so we obviously see itnow going on with NBC.
And then we've seen even, youknow, with, the National
Enquirer, you know, buyingstories and, and, and like
stories that would never see thelight of day with Karen McDougal
like that.
(25:44):
So,
Alex Colvin (25:45):
Yeah, burying the story.
Doug Wigdor (25:47):
Yeah.
Burying stories, paying offpeople to bury stories.
But that's really, you know,what the Me Too movement is
about, and we're not done withit yet, but it really is all
about giving people the abilityand power, and the confidence t
o, to be able to come out andsay, I was sexually assaulted, I
(26:10):
was raped.
Even if that person, who rapedthem or sexually assaulted them
is a powerful person.
And some of the stigma, not allof it, and the blame and the
discounting, i s now dissipatingand we're starting to move in
the right direction.
But I do believe that th ere's so much more to be done,
(26:31):
especially on the legal front interms of some of the laws and
evidentiary, t hings that, that's st ill in my, in my view, m
a ke it more difficult, a lotmore difficult for, for victims
to ultimately prevail.
Alex Colvin (26:48):
Yeah, I mean, I think, yeah, one of the things
that we've seen, you know, thisproblem's been around for a long
time.
You know, there's been attemptsto start addressing it.
You know, I think that the, MeToo movement has picked things
up in terms of giving prominenceand attention to it.
But it's really clear that we'regoing to be dealing with this
for a long time to come.
This is, this is not somethingthat's, that we're going to have
(27:09):
any kind of quick fix and it'sgoing to be a social problem.
We need to, we need to keepaddressing.
Doug Wigdor (27:15):
Yeah, that's right.
But you know what?
We're going to have our firstfemale double 007, Lashana
Lynch, in the series.
So we're making progress.
Alex Colvin (27:22):
We're making some progress.
A first female Dr.
Who as well for fans of Sci-Fi.
So, you know, l et's, let's seewhat happens.
Thanks s o much, Doug.
Yeah, real pleasure talking.
Doug Wigdor (27:30):
Yeah, you were great.
Very easy to talk to, so Iappreciate it.
Diane Burton (27:36):
Thank you for joining us for work, exploring
the future of work, labor andemployment.
In our next episode, Dean Colvintalks with New York State
Assemblyman, Sean Ryan aboutBuffalo's economic
revitalization and its impact onwork.
Again, thank you for listeningand learn more about ILR by
(27:56):
visiting us on the web atilr.cornell.edu.
Work is all around us.
It defines us and the future ofwork impacts nearly every person
on our planet.
The ILR school at Cornelluniversity is at the center of
work, labor and employment,influencing policy and practice
on the most pressing issuesfacing employees and employers.
In this episode, Dean Colvin andlitigator Douglas Wigdor discuss
(00:24):
the impact of the Me Toomovement on sexual harassment in
the workplace.
Alex Colvin (00:34):
Well, thanks very much for joining us today.
This is a chance to reflect backon something that I was just
realizing is more recent than Ithink we often think.
So this is about two years sincethe Me Too movement kicked off
and I was just hearing that statand it feels like it's been
(00:54):
much, much longer.
This has been something that'sbecome such a big part of our
culture and how people thinkabout issues around sexual
harassment in the workplace.
So just to kinda kick things offI'd be really interested in your
take, you know, somebody who'sreally represented, a lot of
clients in major Me Too typedisputes.
(01:18):
You know, thinking about whathas been the impact of this
movement in, you know, two shortyears.
Doug Wigdor (01:24):
Well, Alex, thank you for having me, first of all.
And I think that you're correctthat the Me Too movement as we
know, it started in 2017 whenAlyssa Milano, who has been
credited with popularizing theMe Too slogan, but, and she did
that to encourage people to comeforward and say, Me Too, if they
(01:48):
had experienced sexualharassment or assault to give a
sense of the magnitude of theproblem.
But I think in order to look atwhere we are now, we really need
to go way back because this hasbeen a steady slow movement that
goes back really to the creationof sexual harassment laws.
(02:10):
Believe it or not, that thatstarted to come about in the
1970s when women were enteringthe workforce and sexual
harassment was just starting tocome about.
And the law was starting tochange.
Of course, you know, you had thevery popular cases of William
Kennedy Smith, Anita Hill,Monica Lewinsky.
(02:33):
And to fast forward, actuallythe Me Too slogan actually
wasn't Alyssa Milano.
It was actually a woman by thename of Tarana Burke who came up
with that slogan back in 2006.
And she is and was a civilrights activists, and she began
to use this phrase, Me Too, thiswas before Twitter, but used
(02:58):
that slogan to raise theawareness of and pervasiveness
of sex abuse and assault insociety.
And she was really focused onpeople of color and people in
marginalized communities.
So it's been a slow, steadyprocess to where we are now.
And things have obviouslychanged since 2017.
Alex Colvin (03:24):
Yeah, I mean, I think, you know, think back to
the Clarence Thomas hearings,right, when I was in law school,
you know, almost 30 years agonow when it seemed like, you
know, this issue was firstgetting that really big public
attention.
Maybe that's what the attentionto the hashtag Me Too the last
(03:46):
couple of years is, is that, youknow, increase o f public
attention, right?
So a refocusing again, right.
And we've sort of seen these kind of, I guess waves of
attention to a problem thatdoesn't seem to go away.
Doug Wigdor (03:57):
Yeah.
And it doesn't go away becauseof a number of different
problems in terms of thepeople's perceptions of people
who have been sexually assaultedor people who are survivors.
And I think Anita Hill was agood example of this, but there
are many other women including,my former client, Nafissatou
(04:18):
Diallo, who was raped byDominique Strauss-Kahn, who was
kind of, would've been the nextpresident of France.
But the problems tend to be thatpeople unfortunately don't tend
to believe the events happen theway someone who comes forward as
a survivor says.
(04:39):
They often blame victims.
They often discount the injuryand there's, there's a lack of
care.
And so those things arechanging.
Here we are in 2019 we're a fewweeks away from the Harvey
Weinstein criminal trial that'sexpected to start in January.
And that I think that trial Ithink would be a really
(05:01):
important litmus test to seereally where we are.
Because as we know HarveyWeinstein's defense is going to
be to attack victims and, andto, to, to use the, some of the
old generalizations that peopleused to think were true.
For instance, that if a womancame to a man looking for a job
(05:24):
and something happened thatwasn't necessarily a bad thing
and she put herself intoposition and then if after she
was sexually assaulted, she wentback to see that person that
would undermine her credibility.
These are the sorts of thingsthat Harvey Weinstein in January
is going to use to try anddiscredit the victims.
(05:44):
And it'll be interesting to seethat what happens in 2020, three
years after the Me Too movementhas really kicked off.
Alex Colvin (05:53):
So you do get exactly that kind of response,
where there's sort of anassumption that somehow if the,
you know, if you can show thecharacter of the victim, is, is
not perfect, right, thatundermines the allegation.
I mean, you've, you'verepresented clients subject to
these kinds of attacks.
I remember the Strauss-Kahncase, we saw some of that.
(06:15):
How do you respond that, how doyou, how do you kind of get past
those kinds of attacks?
How do you respond to that?
Doug Wigdor (06:21):
Yeah, I mean, it's really hard and unfortunately
there are even some, you know,plaintiff's lawyers we saw, for
instance, Lisa Bloom, who is,who had held herself out as a
women's right activist.
She's the daughter of GloriaAllred.
But what we found out was thatshe was working for Harvey
(06:42):
Weinstein in an effort toundermine Rose McGowan and to
attack her character andcredibility.
So this is a problem.
And what, I mean, first of all,the, the courts should be the
gatekeeper here to prevent thesethings from happening.
There are different federalrules of civil evidence and
there are other state rules thatprevent these things from
(07:05):
happening.
But unfortunately in myexperience, judges often permit
discovery into things that I, Ithink that they ought not to.
And of course there's thedissemination through newspapers
and social media of negativethings about clients or women
(07:26):
who come forward and claim thatthey've been sexually assaulted.
And that that's exactly whatLisa Bloom is going to do with
Rose McGowan.
And unfortunately, for instance,in the Dominique Strauss-Kahn
case, there were the New YorkPost on the ran a story that she
was a prostitute, which wasblatantly false, but it was an
attempt to undermine hercharacter and her credibility.
(07:50):
So we really need to, to, tomake sure that these things
aren't happening because whatthey do is they act as a
disincentive for people to comeforward.
If they know that their Facebookand their social media is going
to be turned upside down.
Every picture there is going tobe examined and looked at and
the defense lawyers are going tobe able to ask them questions
(08:10):
about prior partners that theyhad and, and other other things
like that.
It's gonna be a realdisincentive for people to step
forward.
Alex Colvin (08:19):
Yeah, I mean, it's something that seems like
there's a process where some ofthe cases get litigated in, in
the PR space, right, through themedia.
You know, at the same timethere's a court case going on.
But you know, are there ways inwhich, you know, the public
pressure can be used in apositive way to help b ring the
(08:44):
claims.
Does that help you sometimes?
Doug Wigdor (08:47):
It does.
It helps because in myexperience, someone who has
committed an act of sexualassault typically hasn't done it
just one time.
Right?
So in my experience, by comingforward, other people will come
forward and that obviously is agreat asset to have when trying
(09:10):
to hold somebody accountablebecause the, the rules of, of
evidence in certaincircumstances permit other woman
to support the victim.
If it shows, for instance, amotive or intent or a modus
operandi.
In fact, in the Bill Cosby case,that was, that was used and it
(09:31):
will be used as well in theHarvey Weinstein case.
One of my clients actually isgoing to t estifying in that
trial as, as what we call aMolineux witness, but w ill be,
she's not the main victim of thecase, but that she had a similar
thing happened to her thatsupports the victims.
And so to answer your q uestionspecifically, these things are
(09:52):
coming out into the public isimportant because it usually
brings out other people.
Alex Colvin (10:00):
Yeah.
So one of the things that, youknow, is, is a challenge in
getting that public attention isan issue both you and I have
have, dealt with, which ismandatory arbitration, right?
And this is, you know, for ourlisteners, you know, where the
employer requires the employeeto sign an agreement to
(10:21):
arbitrate any disputes againstthe company, right.
And this is, this is mandatorybecause you have to sign it if
you want the job, right.
It's not, there's not a choicethere.
And the problem you run into,you know, it might sound good in
theory, you get something otherthan the courts and not
everybody loves being in thecourts, but the reality is this
is something set up by theemployer, ad when you get in it,
(10:43):
it's a private forum so that youdon't get to tell anybody in the
public about what's been goingon.
You know, one of the most famousexamples of this was with the
Fox news, Me Too cases andGretchen Carlson there who had a
public platform through being ajournalist, was forced into this
(11:06):
private forum where she couldn'ttalk about her case.
Maybe, could you tell us alittle about your experience
running into mandatoryarbitration and how it's
affected the cases that you'vehandled?
Doug Wigdor (11:19):
Yeah, and I was involved in the Roger Ailes and
Bill O'Reilly cases as well, andwas faced with that identical
problem.
And, and what Gretchen did, andwhat many others have done in
those circumstances is in aneffort to get around it,
although legally it'squestionable whether it would
ultimately prevail, was to sueindividuals who they had not
(11:43):
entered into an arbitrationagreement with rather than sue
the company.
Alex Colvin (11:46):
So she sued Roger Ailes personally rather than Fox
News.
Doug Wigdor (11:50):
That's right.
Yeah.
And because she and Roger Aileshad not had a contract that
required arbitration, althoughshe and Fox did that, that
arguably covered theirexecutives and employees.
But this, but this problem, andI'll call it a problem because
it, in my view, it's a problembecause it, it forces people
(12:14):
into a confidential arbitrationprocess before an action arises.
So as they start theiremployment, they're given, as a
condition to working at thecompany, they're told if they
don't sign this, then they can'twork there.
Most people would sign it andnot think twice because you
don't think they're going to besexually assaulted in the
(12:35):
workplace.
Alex Colvin (12:36):
Yeah.
Nobody would take the job if youthought that.
Doug Wigdor (12:38):
Yeah.
And then three, four, or fiveyears later, something happens
and then all of a sudden, theemployer breaks out this
agreement that was signed on, onthe day of the first day of
employment.
And the problem is, is thatreally you're, you're now
forcing a decision on a survivorthat is really not fair.
(12:59):
That decision should be made atthe time of filing the lawsuit.
And this is not, this is notonly true in the employment
context and it's also trueoutside the employment context.
For example, I represented over25 women who were sexually
assaulted or raped by Uberdrivers and they, they were not
(13:23):
employees of Uber.
When they signed up for Uber intheir terms and conditions that
they agree to when theydownloaded the app, they agreed
like everybody else who got theUber app, to binding
confidential arbitration andsome of these arbitrations,
believe it or not, were to takeplace in the Netherlands.
Alex Colvin (13:44):
Right.
Conveniently located foreverybody taking an Uber in New
York city.
Doug Wigdor (13:48):
Exactly.
And so what we did is we did anopen letter, which basically it
was a letter to the board of, ofUber and it was on behalf of our
clients and asking them to doaway with this mandatory
(14:08):
arbitration provision.
And to their credit, they, theydid that.
They've now done away with themandatory arbitration provision
for not only sexual assaultcases, but sexual harassment
cases as well.
And there are other companiesthat have followed their elite
leading views on that, which,which is a good trend.
Alex Colvin (14:32):
Yeah.
It's kind of interesting thatwe've seen certain companies
responding this way, right?
So Uber, making changes.
Google's, the other one thatjumps to my mind, right.
That, Google was also usingmantra arbitration and it turns
out that they've had issues ofsexual harassment by at least
one of their executives.
(14:52):
And you don't know if there aremore cases, but at least one
major executive was forced toresign with a pretty substantial
golden parachute, because ofsexual harassment issues.
And they responded right afterthe Google employees started
walkouts and pressure campaigns.
You know, I, I've been kind ofinterested in looking at these
(15:13):
because it seems like there arethese cases where the public
pressure makes a difference.
The Ubers the Googles.
I do wonder, you know, how farthat that spreads right?
Are, is that gonna be effectivein a broader set of employers or
not?
Right?
Does it really substitute?
Doug Wigdor (15:33):
Yeah, sadly, I don't think it is going to be a
trend.
I would hope it would be, but Idon't think that will be the
case.
More times than not,unfortunately.
I get a very nasty letter fromthe company's lawyers
threatening both myself and myclient, that if they were to do
anything public, that they'll,they'll sue for breach of
(15:54):
contract and all the damagesthat would result from public.
And, you know, we just actuallysent an open letter to DLA
Piper, which is one of thelargest law firms in the world.
You would think that a law firmwould try and lead by example
and not force arbitration ontheir, their attorneys who have
(16:17):
been sexually harassed orsexually assaulted.
But unfortunately, not only havethey refused to waive the
arbitration provision, they are,they're defending that case in a
pre- Me Two textbook manner ofattacking the victim.
Alex Colvin (16:33):
Right.
You know, one of the thingsthat's, that's striking about
this area is that, you know, youdo see you do see companies that
you think would be, trying tohold themselves out as, as
exemplars of good behavior, youknow, go on for pretty hard ball
tactics.
(16:54):
What one of the things that Ithink is an interesting question
that a lot of people wonder is,you know, are there better
alternatives?
Right?
You know, we know that, youknow, sometimes the, the courts
aren't as friendly to plaintiffsas they might be.
You know, you've talked about,you know, the sort of suspicion
of the victim.
Mandated arbitration, right?
Arbitration sounds like a goodalternative, but if it's this
(17:16):
mandatory structure that's notreal helpful.
Are there other ways that wecould be resolving these
conflicts better?
Something like mediation, right?
Do you find mediation's a usefultool in these cases?
Doug Wigdor (17:33):
Yeah, I think.
So mediation, which is anon-binding process where a
neutral person tries tofacilitate a resolution amongst
the parties, is, is definitelysomething that, that I have used
over the years.
Many times successfully.
I would say though that amandatory mediation process
(17:56):
though is something I would, Idon't think is particularly
helpful because if somebody isbeing compelled to mediate,
they're usually not going toreally go into the process, in
good faith.
Mediation, you need both sidesto be there and want to be
there.
So mediation is good if bothsides want to do it, but if one
side doesn't want to do it, thenI think it's a waste of time.
(18:18):
Right.
And so, you know, you're notreally in a voluntary situation,
right.
So the idea that, you know, kindof, ideally you want to have
voluntary consensual ways, butyou know, that requires two
sides to tango if you're goingto do that.
Yeah.
I mean, unfortunately therereally is no perfect system.
You know, there are definitelypros and cons of arbitration as
(18:38):
well as, as, as the courtprocess as well.
But I think what I would say isthis, is that at the end of the
day, the choice, in my view,should be left to the victim
after the occurrence of whathappened because the person's
already been victimized once andto be forced into some sort of
(19:02):
dispute resolution system thatthey don't want to partake in,
to me is, is making the, theunderlying, violence that
happened to them even worse.
Alex Colvin (19:15):
Kind of ties into something that I think has been
a tough issue to deal with andthat's the question of the role
of nondisclosure agreements.
Where many times you havesettlements of these complaints
involve a nondisclosureagreement.
So you get the settlement, butyou know, you can't then talk
about what happened.
(19:35):
And that strikes me as a toughissue because then you no longer
able to communicate whathappened and, and bring
attention to, you know, whatcould be a serial perpetrator.
At the same time, you know, youcan understand the victim's
desire not to have, you know, towant to have privacy themselves
(19:55):
and to, to have, you don't havetheir reputation attacked in the
public.
You k now, what are yourthoughts on, on the
nondisclosure agreement problem?
Doug Wigdor (20:09):
It's a really difficult question and
situation.
I think that Gloria Allred hasbeen unfairly attacked, for
example, by Jodi Kantor andMegan Twohey who wrote the book,
"She Said," With the Weinsteincase, they did a podcast in
which they essentially blamedher for entering into
(20:31):
confidential settlementagreements.
And that's because people didn'tknow about it.
It permitted Harvey Weinstein tocontinue to do what what he did.
But it's not that simple becauseas you just noted, many of our
clients don't want to be, doanything public.
And so, you know, th e, ofcourse the co mpany's p aying
(20:53):
for confidentiality to someextent, but our client also
doesn't want their name outthere and not every client, but
a lot of clients.
And so I think you have to giveultimately the survivor the
choice of what they want.
But what I would say is this,this is the, this is the one
thing where the law really needsto develop is in terms of
(21:14):
holding executives, directorsand officers liable for the
conduct of their senior levelpeople who they know have
engaged in unlawful conduct andha ve s ettled cases in the
past.
You know, we saw with HarveyWeinstein, his brother Bob
Weinstein and the otherdirectors and officers know
(21:35):
about his conduct.
It's the same thing was truewith Bill O'Reilly.
Fox knew about his conduct, butunfortunately the way the loss
of the law on holding directorsand officers liable goes back to
the beginning of time.
And, and the only way you canhold a director and officer
liable for an intentional act ofsomeone like Harvey Weinstein is
(22:00):
where the defendant HarveyWeinstein uses, what we call a
chattel, usually some sort ofequipment from the company or
and so basically, unless theyuse like the company car or they
do it on the company property,
Alex Colvin (22:15):
Or the office.
Doug Wigdor (22:17):
Or the office.
There's no way of doing it.
But of course, what we know isthat most of these sexual
assaults take place either inhotels or somewhere else.
And so it doesn't really addressthe question is what, which is
this is whether it's foreseeableenough.
Should, the directors andofficers know that this might
happen?
Is it foreseeable?
But unfortunately the courtshave not adopted that standard
(22:40):
as of now.
Alex Colvin (22:43):
Yeah.
I think this does feed a publiccynicism about the law in this
area.
You know, as well as, as theliability talking about, you
know, there's also thesituations where companies do,
you know, get the person to stepaside, you know, sort of exit
from the company and they walkaway with, you know, tens of
(23:07):
millions of dollars in someexecutive contract.
You know, which at the sametime, if a, you know, regular
rank and file employee isterminated, they get nothing,
right?
There's no just cause, there'sno severance.
But then you see examples likethis Google one where the
executive walked away with tensof millions of dollars in a
golden parachute.
And, you know, I think, you knowfeeds outrage.
Doug Wigdor (23:29):
Yeah.
I mean, we just saw, you know,WeWorks CEO and founder Adam
Neumann walk away with hundredsof millions of dollars and I
represent his former chief ofstaff who he marginalized,
sidelined because when she cameback from her maternity leave
and paid her l ess than somebodywho was doing the exact same job
(23:52):
as she was.
And so, you know, with BillO'Reilly, it was even worse.
They renewed his contractknowing that he had engaged in
these, these types of conductand put a provision in his
contract where he would have topay a certain fine if h e did it
again in the future.
(24:13):
So they actually contemplatedthat this would happen a gain.
Alex Colvin (24:18):
One of the things I think is significant about the
Me Too movement, when we look atthe public attitude about the
fairness of our system, oureconomic system and structures
of power and our corporations,is that it, it exposes, sort of
a lack of accountability in theupper echelons, right?
(24:38):
When you see this sort of theHarvey Weinsteins, the Matt
Lauers, the, you know, the chiefexecutives who are, you've been
getting away with this for a while and they don't seem to be
genuinely held accountableoften.
Right.
Even if there's you know,successful lawsuit, i t's often
the company paying the money.
Right.
And so, you know, you do getthis public frustration.
Doug Wigdor (25:01):
Yeah.
I mean, I mean it really itemanates from the lack of senior
women in C-suite positions andhaving, you know, very few women
in these companies who are theCEOs or running the companies
who, in my view, wouldn't,wouldn't tolerate this conduct
(25:23):
and turn a blind eye to it.
And, and so we obviously see itnow going on with NBC.
And then we've seen even, youknow, with, the National
Enquirer, you know, buyingstories and, and, and like
stories that would never see thelight of day with Karen McDougal
like that.
(25:44):
So,
Alex Colvin (25:45):
Yeah, burying the story.
Doug Wigdor (25:47):
Yeah.
Burying stories, paying offpeople to bury stories.
But that's really, you know,what the Me Too movement is
about, and we're not done withit yet, but it really is all
about giving people the abilityand power, and the confidence t
o, to be able to come out andsay, I was sexually assaulted, I
(26:10):
was raped.
Even if that person, who rapedthem or sexually assaulted them
is a powerful person.
And some of the stigma, not allof it, and the blame and the
discounting, i s now dissipatingand we're starting to move in
the right direction.
But I do believe that th ere's so much more to be done,
(26:31):
especially on the legal front interms of some of the laws and
evidentiary, t hings that, that's st ill in my, in my view, m
a ke it more difficult, a lotmore difficult for, for victims
to ultimately prevail.
Alex Colvin (26:48):
Yeah, I mean, I think, yeah, one of the things
that we've seen, you know, thisproblem's been around for a long
time.
You know, there's been attemptsto start addressing it.
You know, I think that the, MeToo movement has picked things
up in terms of giving prominenceand attention to it.
But it's really clear that we'regoing to be dealing with this
for a long time to come.
This is, this is not somethingthat's, that we're going to have
(27:09):
any kind of quick fix and it'sgoing to be a social problem.
We need to, we need to keepaddressing.
Doug Wigdor (27:15):
Yeah, that's right.
But you know what?
We're going to have our firstfemale double 007, Lashana
Lynch, in the series.
So we're making progress.
Alex Colvin (27:22):
We're making some progress.
A first female Dr.
Who as well for fans of Sci-Fi.
So, you know, l et's, let's seewhat happens.
Thanks s o much, Doug.
Yeah, real pleasure talking.
Doug Wigdor (27:30):
Yeah, you were great.
Very easy to talk to, so Iappreciate it.
Diane Burton (27:36):
Thank you for joining us for work, exploring
the future of work, labor andemployment.
In our next episode, Dean Colvintalks with New York State
Assemblyman, Sean Ryan aboutBuffalo's economic
revitalization and its impact onwork.
Again, thank you for listeningand learn more about ILR by
(27:56):
visiting us on the web atilr.cornell.edu.
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