“But I thought this was America, where there is respect for women’s rights.” The woman who said this to me over a decade ago was a recent immigrant to the United States, and I was a very young and very fresh lawyer. She worked at a large warehouse in the area, and a couple of her co-workers would crack lewd jokes and grab her breasts and butt. She had tolerated it for a while and then complained to a supervisor who had brushed it off. She had continued at the job but recently a new hire, a younger man, had joined the other two. Now there were three harassers, and she felt she just couldn’t take it any longer.
Over the years, I’ve forgotten the woman’s name, but her words have stuck. She came only for the initial consultation, which the civil-rights firm that I worked for provided for free. I was at the bottom in the firm’s hierarchy and so I could do nearly all of them. It was not these interviews, but the post-briefing meetings with the senior lawyer (who was a full two—as opposed to zero—years out of school) that dissipated my long-nurtured idealism. In these terse chats, the senior lawyer would ask me: How much proof did she have? Were there others that she knew of who had suffered similarly? Did her employer have a sexual-harassment policy that was posted or in a handbook? Had she complained to a supervisor? Did she have a copy of that complaint? And, much to the dismay of nearly every client who had to sit across from me in the “library” that reeked of old takeout, would she be able to pay costs?
If there was proof—a recording, a couple of people willing to corroborate and testify to also having heard the comments, or, better still, harassed themselves—if there was no sexual-harassment policy nor designated human-resource officer, then things were looking good. If she had the capacity to pay at least a little bit toward costs, we would have had a done deal. But, of course, there was never, in those initial consultations, such a done deal. Most harassers are clever enough to hide their tracks, to find their prey when they have been left behind or alone. Corroboration is even harder; witnesses fear being sent to the unemployment line. This all achieves one thing: silence.
That last bit, about costs was usually the biggest surprise. Contingency fee, to most plaintiffs, does (and should) mean that they do not have to pay until there is a payout. The hand-to-mouth outfit where I worked (my desk was in a corner of the same library and some clients “worked off” their bills by filing and making copies), did in theory take cases on contingency. Civil-rights cases involved costs that were often quite large, requiring the firm to invest not only attorney time, but also thousands of dollars to pay for transcripts of depositions and experts. The attorneys’ fees would be waived until there was an outcome but the rest of it, or at least a bit of the rest of it, required some payment. We would not reject clients because they could not pay these costs, but we would accept them a lot faster if they could.
The woman’s case, unfortunately, was not, on its face, that strong. The legal elements were all there, but there was little corroboration; she did not know of any sexual-harassment policy, but I suspected one would be fished out when her employers heard of the complaint. I had to give her the usual bad news and explain to her the difficult nature of the case, the high costs involved, our inability to keep it secret, and the real danger she could lose her job. It was not a lecture I loved, and what she said seemed right; this was America, a self-declared international champion of gender justice. Where was it in the American workplace?