|Women’s rights activist and attorney Gloria Allred is masterfully wielding the processes and procedures of our civil justice system in a defamation lawsuit against the world’s most prominent perpetrator of sexual harassment, President Donald Trump. The timing couldn’t be worse for Trump as another monstrous mogul, movie titan Harvey Weinstein, is in the headlines too as many women, from unknowns to Academy Award winners have come forward to accuse him of grotesque sexual harassment and staggering abuse of power. Over three decades, it would appear, hundreds of young women starting out in the movie business were exposed to Weinstein’s cunning and vicious sexual predation. Trump, meanwhile, bragged about sexually assaulting women in the infamous Access Hollywood tapes, crowing “when you’re a star they let you do it. You can do anything. You can grab them by the pussy.” Following that, many women came forward to accuse Trump of sexual assault and harassment, and he responded in his signature style. He attacked, publicly calling the women liars, fat, and not sufficiently attractive to merit his assault. Not a smart move, it turns out. He handed Allred, a recognized hunter of harassers, a new and very public case. And this could and should be the one that makes this a movement. It is before the court now, following closely in time the toppling from power of other prominent male figures Harvey Weinstein, Bill Cosby, FOX chief Roger Ailes, and FOX star windbag Bill O’Reilly for sexual harassment and abuse.
Women in the workplace have had our moments. We have also participated in massive movements. Will the fallout of the current revelations of grotesque and decades long sexual harassment by these luminaries be one more moment, or are we actually witnessing the birth of a new movement to secure the rights of women to be free of sexual harassment and retaliation in the workplace? Something tells me that our numbers have reached critical mass and a new movement is forming as we witness woman after woman, from the unknown to Academy Award winners, call out systemic sexual harassment, perpetuated and entrenched by a casually corrupt system of retaliation and cover-ups. Nearly 100 years have passed since women got the right to vote and a half century has elapsed since passage of the 1964 Civil Rights Act, both of which were spawned by the Women’s Movement in one wave or another.
The riveting testimony of Professor Anita Hill at the 1992 Senate confirmation hearings for Supreme Court Justice Clarence Thomas, as explosive and eye opening as her detailed allegations of sexual harassment by Thomas were, turned out to be a moment, but a big one. Women started to feel empowered to make complaints about sexual harassment when they saw that women at the highest levels suffered the same denigration. We also saw the male power structure of the United States Senate, both Democrat and Republican, come together to allow an wholly unqualified man guilty of sexual harassment to assume a lifetime position on our nation’s highest court. One senator publicly shamed Hill as” a little bit nutty and a little bit slutty.” Still, thousands of women started making claims to the EEOC and in the courts and the power structure responded, as it always does, to thwart change.
Onerous binding arbitration agreements were buried in virtually all employment contracts, to preempt lawsuits. Still we were “nasty” and persisted. We headed to court in droves invoking both state and federal laws against discrimination and harassment. Now we have wily women warriors on the frontlines.
When Gretchen Carlson sued FOX News chief Roger Ailes for grotesque and ongoing sexual harassment, her attorney, Nancy Erika Smith, in a brilliant opening move, brought the case against Ailes himself, not her employer FOX, shrewdly bypassing the binding arbitration agreement that would have buried her claims against her employer. She preempted the preemptors and brought her claims back into the light of day as intended by our civil justice system, which is public by design. Other women followed and Ailes was fired. Public revelation is central to fomenting change and that is where we now find ourselves, using everything available in the legal system to prosecute these claims.
Trump’s recklessness had the legal effect of resuscitating the old claims against him for sexual abuse that would have been barred by the statute of limitations. The beauty of the defamation case is that the truth of the women’s accusations is back in issue. Plaintiffs have to plead and prove that Trump defamed them when he said they were liars, and to do that they need to prove that their claims of sexual abuse were true. Trump must now respond to civil discovery including a massive subpoena for all documents that relate in any way to the women he called liars. A phalanx of women with previously hidden claims of sexual harassment against powerful men like Bill Cosby, Roger Ailes, Harvey Weinstein, and Donald Trump is no longer going to be silenced. A movement is building. It looks to me like a whole new day.