I intended to visit the age-old topic of sexual harassment anyway, because I recently saw that a California winery just agreed to pay $1.5M to end an EEOC led sexual harassment case.   But then, the Congressman who may well have been California’s leading candidate for Governor got hit with massive sexual harassment and assault allegations, most likely derailing his gubernatorial run and possibly his political career.   

So even after all the attention we all pay to this topic, 35 years after Anita Hill testified about Clarence Thomas, 40 years after the first hostile environment cases were decided, and nine years post #MeToo, we are still here – dealing with humans (and let’s face it, often men) behaving badly.  And I am taking this rainy Sunday to write about it.

I don’t write about sexual harassment all that much, because, well, it’s a bit “same old same old.”  If you have taken my training classes, you know I somewhat sarcastically talk about the fact that sexual harassment has been in the news as long as I have been teaching these classes, which is over 35 years, and no doubt always will be, as recent events have demonstrated.

I went back over my prior MMB articles, and frankly, I usually had a twist for revisiting the issue.  Back in 2022, I wrote about the new federal law banning arbitration of sexual harassment cases, and we are seeing the impact of that law on our litigation now.  In 2023, I wrote about sexual harassment in the post-pandemic world, and how we were seeing harassment claims arise in remote work settings.  In 2024, I wrote an article about relationships in the workplace, and how workplace romances can often spawn workplace drama and unlawful harassment.   (By the way, you can always visit old articles at www.mondaymorningbriefings.com) 

But there is no new twist on the allegations involving Eric Swalwell.  Indeed, the allegations sound all too familiar.  A “powerful” man in politics using his authority to pressure much younger women, usually employees, into unwanted situations.  And while these claims remain unproven, the sheer number of stories emerging, and the substantiation behind them, suggest some level of authenticity.  I’m starting to hear inside tales from sources I trust and people I personally know.  I suspect time will only provide us with more verification.

All this begs the questions – why do we continue to see these scenarios emerge, and why do victims stay silent for so long?

When I teach sexual harassment training classes, I joke about how closely my career trajectory has tracked the evolution of sexual harassment law. The very first hostile environment cases were decided in the mid 1980s, just as I graduated law school.  And Anita Hill testified when I was pregnant with my daughter, the year before I made partner.

But the sorts of allegations swirling around Representative Swalwell mirror those that enveloped Andrew Cuomo as Governor in 2020 and follow people in power back through the generations.  These are not claims of a hostile environment. They are examples of the OG sexual harassment claims of quid pro quo.  This old school type of sexual harassment has been unlawful since the 1964 Civil Rights Act, and in California, dates back to 1959 and the inception of the Fair Employment and Housing Act.

So why do people in power, and men in particular, keep making these bad choices?  Obviously, not all men or women in power behave so badly.  But some still do.  And as employers, we always must account for this possibility.

One of my clients recently had a sexual harassment situation arise in the workplace. It involved more of a coworker, hostile environment scenario. But my client bemoaned the fact that this employee had just concluded sexual harassment training.  Why didn’t he know better?   And I reminded her, as I reminded all of you, that the training is as much or more for the people who may be the possible victims, or even witness to unwelcomed behavior.  It’s harder to “train” people to see the errors in their own behavior.  Our biggest sexual harassment offenders historically have sat through years of sexual harassment classes and not recognized their own behavior as the problem.

Eric Swalwell is vociferously denying any misconduct.  I suspect that he truly believes all his interactions with these young staffers were “consensual.”  So often, we don’t see our positions in power as having the effect it does.  We want to see our employees as our friends, our colleagues, our teammates.   Sometimes we socialize with them or even confide in them.  We forget that no matter how well we know our “subordinate” workers, to them, we will always be the boss.  And that always influences our interactions with them.  The bigger the power and even age disparity, the more challenging this divide becomes to navigate.

My daughter and I were discussing these allegations this weekend, and she asked me why I work on the “defense” side of these cases.  I told her that I strive to work with employers who do the right thing and promptly investigate claims of harassment when they occur.  I also reminded her, as you all well know, that there are situations involving meritless harassment claims.  

But the problem is, real harassment still proliferates.  Just as many employers still abuse their workers and violate the wage and hour laws.  Those circumstances do not help our cause.

So, I write this article on a Sunday to you, my dear clients, who are trying to do the right thing.  Remember that despite our best intentions, our employees are human.  And sometimes they make bad or even dangerous choices.  It’s our job to provide a workplace that obviously discourages that behavior, but also, creates easy pathways for employees to feel safe and be heard.  And when these employees do come forward, they may be telling us the truth.   We need to listen with an open mind.   Remind your employees you are there to do just that.

And keep training your employees. It does help communicate the right message.