Alice Ballard is a Philadelphia attorney who has specialized in employment rights for the last few decades, including discrimination and sexual harassment. We spoke with her to get her perspective on the Harvey Weinstein story that exploded over revelations of the movie mogul’s treatment of female colleagues and acquaintances, and what this moment might mean for women in the workplace.
You have been on the front lines of harassment and discrimination cases for decades, so what was your reaction when the Harvey Weinstein story broke? Was it “same old, same old” or was there something different or notable about this case?
This was a particularly notable case in that he’s a very powerful man, holding a wide swath of power over people in the movie industry. This was not a case about him as an employer, per se. Another notable aspect is the wide variety of forms of harassment he engaged in. We’re not used to seeing such a powerful man with such a repertoire of behavior. He’d gotten away with it for so long; he had a long career as a harasser. His case is certainly extreme.
On the other hand, men in power have been harassing women forever, and they will continue to do it. The goal is exercise of power: control over women that has a sexual component.
Have you seen a big difference in the kind of calls you get from women over the years, or is it pretty consistent?
For sex harassment, no. We do see more age harassment than we used to see — companies coming down more on an older worker. But as far as women in the workplace are concerned, it’s been the same all along.
The law looks at two kinds of harassment: An exchange between the powerful and the less powerful — when conduct is directed to you from someone who has power over you. The other is hostile environment: a workplace with pictures or language denigrating to women, but not directed to you, specifically.
There’s one kind of harassment that’s been around all along, but more women seem comfortable coming forward. That involves worker relationships, friendly relationships in the workplace, affairs that both parties wanted to get into. Then things change. She says “enough.” He wants to keep it going.
It’s embarrassing for a woman to come forward in that case. More public discussion makes it easier. I see more of these emerging, though I don’t think more are necessarily happening. It’s trickier when you have consequences of the relationship outside the workplace, like a pregnancy or broken marriage.
Do you think the sharing of stories like #metoo is something that can change things?
I certainly welcome it; perhaps it empowers in women in the workplace to know they can complain. That said, complaining in the workplace is a very bad idea. First of all, know what the laws entitle you to: It’s not you vs. the harasser, but rather, you vs. the company. This is important, because the company has a lot ways to defend against you.
If you file a complaint, you have the right to an investigation and the right to a remedy. But the company has the ability to conduct the investigation and to determine the remedy.
So, say the outcome of the investigation is “this is a he said /she said.” The complaint is not substantiated. Then where are you? You’re off the team. If it’s unsubstantiated, you made a bogus claim against the boss. You’re toast.
That happens a lot.
Let’s talk about your right to a remedy. The company has control over the remedy. The woman has no right to know what the remedy is. The boss is sent to training, or the woman is moved to another department. The remedy is secret. Which means it has no deterrent value as far as other men are concerned.
I tell people that complaining to HR is inconsistent with long-term employment. It’s better to have a job than a case.
So what’s a woman’s or worker’s recourse for dealing with harassment?
HR is not your friend. Their job is to do damage control for the company. They decide whether to take on an investigation and how that investigation is run. If you complain, you’ll do it at great personal cost, though you will benefit the women who come after you.
As for strategies: Nip it in the bud. Laugh it off. A rebuff sends a message that the behavior or overture is not welcome. Or, get safety in numbers. You don’t want to be the only one who sticks her neck out. Try to develop a situation like a women’s circle where there’s safety in numbers. And if you do go that route and create a women’s circle, welcome less powerful women to that circle. Some women don’t have a lot of friends; that makes them vulnerable to abuse.
If you’re part of a group, you can address the problem as an institutional problem.
Another tactic is to stay in the middle of management’s radar screen. It’s easy to discriminate against someone at the margins.
Finally, you can suck it up. You may be able to outlast the guy. Put yourself before the case. If this is really bothering you, you might have to quit. It’s a financially risky strategy, but sometimes you just have to quit.
Has the law changed at all in either direction to make it harder or easier for women to find justice?
[I take a case] if the woman’s goal is to get some sort of settlement, compensation for what she’s gone through, if she understands that our goal under the Civil Rights Act is money. The law doesn’t deliver justice. There’s no vengeance. What you’re looking for is fair financial settlement, compensation for what you’ve gone through. If someone says, “All I want is a trial, I don’t want a penny,” I send them to someone else.
There have been some changes in the law, but the big changes come out of the Supreme Court. In 1986, Meritor v. Vinson determined that sexual harassment is a form of discrimination. Then there was Anita Hill.
At the time she testified, people asked: “Why didn’t she sue if he was doing all those things?”
The answer is that there wasn’t anything she could sue for. She didn’t get fired. So she had no economic loss. And back then you couldn’t get damages. Anita Hill changed that, because Congress amended the Civil Rights Act in 1991, to allow someone to have their day in court.
Sandra Shea is managing editor for opinion.