While labor and employment practices aren’t usually known as the most profitable groups at large firms, some are predicting an uptick in business.
The heightened awareness of sexual harassment in the workplace, triggered by the daily publicity of harassment accusations against Hollywood producer Harvey Weinstein, has resulted in a surge of client calls to plaintiffs attorneys who litigate such claims.
Meanwhile, defense attorneys, bracing for more litigation, said they are fielding more calls from corporate clients that want training conferences and advice on how to handle internal complaints and internal investigations.
While it’s too soon to track any possible change in the number of employment lawsuits in court and charges filed in the U.S. Equal Employment Opportunity Commission, both plaintiff and defense attorneys are expecting a wave of litigation in the upcoming months, created by the public accusations against Weinstein and the “#MeToo” movement of women publicly sharing their own harassment stories.
‘Surge’ of New Claims
Derek Smith, a plaintiffs attorney who runs 17-attorney Derek Smith Law Group, said his firm has received almost double the number of calls from prospective clients who have potential sexual harassment claims. “We’re getting tons more,” he said.
Smith said all the new matters are still in the investigation and draft stage of the litigation, but he expects them to be filed within a couple of months with the EEOC, leading to some new court filings.
“I’m getting so many more calls, and as a result, more clients,” he said. “It’s a mathematical certainty” that the emboldening of potential plaintiffs will lead to more lawsuits, Smith said.
“They’re feeling empowered to take a stand, to do something about what happened to them,” he said. “They are hearing what happened with Harvey Weinstein and they’re thinking not only can they do something about it, but it’s OK to stand up for yourself.”
“I’ve been practicing since 1995. I don’t recall any surge” that compares to this period, Smith added.
D. Maimon Kirschenbaum, a plaintiffs attorney at Joseph & Kirschenbaum, also said more clients have retained his firm, and he is expecting to bring more matters to the EEOC and later in court. “In the last [few] weeks, the world has turned on its head,” Kirschenbaum said. “The Weinstein thing was a total game changer for women coming out in the open and saying they were sexually harassed.”
“It seems to be, in the last month, more women have come out and shared their sexual harassment experience than in the last 10 years,” he said, referring to accusations of harassment in several industries, such as in legal, film, entertainment, in the news business, financial services and at restaurants.
Defense attorneys representing management and corporations said they haven’t yet seen a rise in employment litigation, but several said in interviews that they expect one.
Felice Ekelman, a Jackson Lewis principal representing employers, said clients are reporting they have more internal complaints, in which employees report misconduct to human resources departments or managers, often the first move in a lawsuit. Meanwhile, her firm is increasingly being asked to conduct preventative training, which entails teaching managers legal obligations and how to respond to complaints.
Several companies have contacted her to say, “Hey, we haven’t had management training in a while, let’s get it on the calendar,” Ekelman said.
Mark Konkel, a partner at Kelley Drye & Warren who also represents employers, just returned from a training conference at a Fortune 100 company last week. The conference was in part motivated by the increased sensitivity to workplace sexual harassment, he said.
While Konkel said he hasn’t observed a rise in lawsuits or internal complaints, “that is almost certain to occur.” In the meantime, he has seen more requests for training and a change in the type of internal complaints and internal investigation requests he sees. Konkel said “the tenor of the complaint has changed,” with employees now more often alleging a “culture of harassment” and “systemic discrimination.”
“In the past, the source of the harm was just one bad actor,” he said. “Now I think all of this publicity may encourage complainants to think of the source of the harm, not so much of the individual person, but a business that permits it.”
That’s especially true for new companies, such as in the tech industry, that do not have “institutional maturity where they have dealt with compliance over a long period of time” and that have established a “contrarian brand” on the idea they don’t do things in a traditional way, Konkel said.
“I do think there’s something new here, of public awareness of the viability of these claims and corresponding public sensitivity,” he said.
Lawyers on Speed Dial
In perspective, training conferences are just a small portion of the business for large law firms and defense attorneys, but such conferences will likely deepen the relationships with clients in the long run.
“Nobody is going to get rich from sexual harassment training,” Konkel said, “but I do think there’s a shift to address systemic issues in the workplace. Many employment attorneys will be on the short list for speed dials.”
Meanwhile, attorneys are returning to old cases, too. Kathleen Peratis, a partner at Outten & Golden representing employees, said while the volume of complaints that come to her attention has stayed steady, she has observed inquiries in the last several weeks from those who have already settled their sexual harassment claims and want to know if they can breach their confidentiality agreements in their settlements.
‘“I don’t think I’ve ever had that question” prior to a few weeks ago, she said.
Although attorneys are fielding more calls now, it’s unclear whether the urgency will last long. “Everything comes in cycles,” said Smith, the plaintiffs attorney. ”I’m hopeful that women will continue to feel empowered” but he said it’s possible “there will be some softening” over the coming months.