In this episode of Reckoning, Kathryn Kosmides speaks with Vincent White about the reality of reporting sexual harassment. Vincent is an attorney and a partner at White, Hilferty and Albanese, a law firm representing people who have suffered from employment discrimination or sexual harassment.
In this episode, Vincent discusses:
Welcome to Reckoning, a podcast that explores gender-based justice, safety, survival, and resilience in the digital age, through conversations with experts and advocates. I'm your host, Kathryn Kosmides the founder and CEO of Garbo, a tech non-profit building a new kind of online background check. Before we jump in, I'd like to warn our audience that we have raw honest conversations about gender-based violence, which may be too much for some listeners. Please put your safety and health above all else when listening.
Kathryn: Welcome Vincent! Vincent White is from the firm White, Hilferty & Albanese. Vincent, can you tell us a little bit about yourself and the firm?
Vincent: I'd be happy to, and thank you so much for having me. White, Hilferty & Albanese is an employment litigation firm. We represent victims of workplace discrimination, workplace sexual harassment. We do it in all 50 states, and somewhere along the way, we became the largest in our space. We represent more victims of workplace discrimination and sexual harassment than anyone else in the country. We try to keep our field of practice very, very narrow. It's a hyper-specialized area. We want to be sure that we can be up to date moment to moment on the changes in the law, the changes in best practices, and the best tactics we can use to help our clients. As for me, I worked in Employment Law my entire adult life, and the nicest compliment I ever had in my industry was the commissioner of Major League Baseball who called me irrationally aggressive on opening day in 2016.
Kathryn: Rationally aggressive. That is great for a lawyer. I think that's exactly kind of what you want to be.
Vincent: I think so. I believe he felt it was an insult, but I was touched.
Kathryn: That's great. That's great. Well, today we're going to be talking about sexual harassment in the workplace. it's obviously your expertise, so kind of diving right in. Can you tell us first, what is sexual harassment?
Vincent: You know, it's any interaction that's motivated by attraction and is unwelcome in, in terms of the workplace it's any sexualized phrase, any motion, anything that would make the recipient of that action feel "hey, this is not a professional interaction. This is someone objectifying me, sexualizing me in a way that I'm not comfortable with."
Kathryn: And you kind of mentioned a few, but what are some types of non-obvious sexual harassment?
Vincent: There's so many, right? We always hear about the classic, the massage guy, right? This guy in the lunchroom. "Oh, you look stressed. Let me rub your shoulders." that's clearly sexual harassment. It's clearly inappropriate. It's clearly so very right? But, there's the slightly more subtle things. The co-workers a little too interested in your personal relationships who lets you know, "Oh, you're too good for your boyfriend" or that weirdo says, "now you could really have any man, if you want it, you just have to say so." Well, thanks man, but nobody asked you, you know what I mean? Why are we talking about these things that are not tied to the workplace that are not really the fodder of normal water cooler discussions? They're above and they're beyond these lingering hugs. "I'm a hugger. I'm a hugger." Well, no, you're a hugger. If the person who's going to receive the hug wants to be hugged. Otherwise, you're just someone basically committing assault at that point. Right? And I know that sounds aggressive for me, but there's people who've been through a great deal in their lives, and having someone touch them who they don't want to touch them, it can be an incredibly traumatic experience. So I don't really think it's unreasonable to say "the hugger" is a form of sexual harassment in certain situations, right? There's always the boss who will offer workplace advantages, but we'll dangle it, you know, as, as like a temptation and then maybe try to get some kind of flirtation out of that. Some kind of affirmation compliments things of this sort, even really, to me, forcing one-on-one after-hours socialization with coworkers, or the non-work texting. "Oh, we're just really close, so I text you." Well, but you're my boss. So I can't really not respond. So it's like, I'm always, on the hook and you have me at your beck and call, even though I may not choose to do that. Right?
Kathryn: I'm sitting here nodding my head, thinking about all of the stories that I've heard, the stories that I've experienced. And so I think that those are truly incidents that happen every day at workplaces and many folks might not think that they're being sexually harassed
Vincent: True. And the big thing— you're going to laugh at me— when I got in this industry as a young man, I would have believed 10% of women experienced sexual harassment. That's, how stupid I was. And then it came to be, essentially all women are experiencing sexual harassment and about 4% of them are complaining. Right. And that blew my mind. And I think it even took me a while to accept. I think I was not even understanding the scope of it for a significant period of time. And, and that's, that's a huge failing on my part.
Kathryn: I think it's just the reality. Like you said, every woman experiences this in some form at some point during their career. It's folks like you, who help them navigate the system. So what is the very first thing someone should do? If they have been sexually harassed?
Vincent: Right off the bat document, everything. The minute you feel uncomfortable, the minute you're in a safe space, start jotting down notes. What was said, what was done, who was present? How did you feel? How might you corroborate this? What time of day was it everything right? You can never record too much. These are things that are going to be good for you. If someone gaslights, you try to make you feel like you're making a mountain out of a molehill, right? It's an affirmation of your own recollection because the human mind does not remember all that well. And also it might be something, someday, you give to HR or you give to an attorney or you use to defend yourself, right? So document, document, document. And then the next thing I would do is call an attorney. Not because you're suing right away, you're not, but anyone in this field worth their salt should be thrilled to speak to you free of charge informally. Go over your options, go over what you're experiencing, tell you "Yeah, I think that's really inappropriate. I'm not your friend so I'm going to give you the straight answer. I do think it's real or hey, you might be a little off base here." That's valuable. I've had people call me up and say, "Hey, one of my coworkers revealed to me that he's asexual and I feel threatened by that." I couldn't on the phone call, I'm like, well, what do you mean? And why, why does that threaten you? What she believed he had said was that he was an "incel", which is a phrase, you know, tied to men who might believe women owe intimacy to men. Right? It's not what he said. He said asexual very different thing. Right? So it was really valuable to her that she got to talk that out without going to HR, without making a potential misstep for someone who actually disclosed just a fact about himself. That's probably not sexual harassment at that point.
Kathryn: No, that makes total sense. And I think, having that non-friends to go to and have an honest conversation is so important. After they talk to you. What is the next step? Do you recommend them reporting? Do you recommend them leaving their job or, what is that next step?
Vincent: Well, you always have to build the plan based on what the client wants or the person experiencing the sexual harassment, what they want. If they want to stay, then you might construct a plan to go to HR to address the situation, to go step-by-step without hiring an attorney, right? Now, sometimes it's not what they want. Sometimes they want a paid exit. They've had enough, they just don't trust these people anymore. They're afraid of retaliation. And in those situations, you might not go to HR. You might not give HR the chance to meddle in things and destroy evidence and try to talk to witnesses. Right? You might just start with a case and it's going to come down to what is best in the eyes of the plaintiff.
Kathryn: That makes total sense. I think it's so good to hear you empowering the victim rather than forcing your plan onto them and forcing them to become a client of yours, to actually empower them, to make their own decision.
Vincent: Yeah. In reality, there's just not enough employment attorneys in the United States. So there's no shortage of claims. There is a lot of states, a lot of states where if you are the victim of sexual harassment and you go online to find someone, you might find no one local, you be calling a firm like us, who will be eventually airdropping in attorneys to handle your trial someday. Right? But that means that locally, in entire swaths of the country, you have no one to talk to.
Kathryn: That's insane. That's incredibly insane. And as you said, 100% of women are experiencing this only 4%, as you mentioned are reporting. But you know, I think that with the way that culture is moving and hopefully even episodes like this and the way the news cycle is working, is that more people do start reporting what is happening to them.
Vincent: Absolutely. And it's such a personal choice, right? It's no one's job to report. If reporting's not right for you when it's not right for you, but the people who do stand up and fight back, they're doing a real service for everyone else. There's no doubt about that.
Kathryn: That's super powerful that it's not your job to report. And that goes for any sort of incident, sexual assault, domestic violence, sexual harassment, it's not your job to report, but if you can take that step, if you have the privilege to take that step and the power to take that step, it can truly change lives and prevent the next victim from occurring.
Vincent: It really can. I've seen entire organizations change.
Kathryn: Exactly. Exactly. So after they talk to you and you formulate this plan, what happens next? So if they go to HR and HR does nothing or immediately retaliates against them, kind of what are the next steps in the process?
Vincent: So it's always depressing to see a company, not do the right thing, right? Because even if their own self-interest was going to guide their actions, they would address the problem and fix it. But often they don't often they attack the person complaining, right? So at that point, the case has really gotten more valuable. Retaliation gives rise to its own form of damages, punitive damages in all 50 states. And at that point, you're not really safe in the workplace anymore. It makes sense to hire an attorney for most people. And a lot of people would come back and say, well, but I don't want my name out there, but there are private dockets that are not going to show up on search engines, not going to show up in background checks, not going to have to be disclosed to future employers if they ask you if you've ever sued prior employer. There are places to go to file that will not end your career. That will not harm you in the long run.
Kathryn: I think that's really powerful because that is a major fear. There's this woman, Jessica Casucci, she was in one of the big four and she finally sued and sued very publicly. A lot of media came out about it and it changed her life completely. She's now totally pivoted her career as a consultant, but it changed her life. But she also chose that path to be very vocal and very loud about it because she was 10, 15, 20 years of sexual harassment in the workplace. But it's so good to know that you can do it quietly. And no one has to know besides the employer and that it's not, as you said, going to affect your next job or your whole life, you know?
Vincent: Absolutely. And you mentioned the big four, let's not forget Ernst and Young, within the past three years had seminars for female executives on how they could avoid conflict [with] their male peers, how they could perhaps be more survival in the boardroom and not have conflict. That was an actual seminar that was recorded and held by Ernst and young. It was one of the most insane things. I couldn't believe it. I thought it was fake. And then it turned out to be true. And that's a leading organization in this field, right? How does that happen?
Kathryn: Okay. I totally just Googled her name and it was Ernst and Young that it was the firm that she sued.
Vincent: Every single woman in Ernst and Young has a claim. They were literally having seminars, teaching women how to interact with men. So the men would not feel threatened.
Kathryn: Bawling my eyes. I don't even know what to say right now. That was the approach that they took to the problem, which is just total victim-blaming. Essentially.
Vincent: It was, they characterized doing word association and they were characterizing women who break into conversations as overly aggressive. If I recall which, which is of course the male status quo, all men who are not trying really hard, unfortunately, in the workplace will often cut other people off. It's awful. We all need to work on it. It's horrible, but in turn about it's fair play. If that's what's going on with the men that the women certainly should be able to do that too. And here they're having a class thing. Well, you better not do that, but just for women.
Kathryn: It's literally laughable because it's so insane that that's the way that corporations handle this type of stuff.
Vincent: I couldn't believe it. I really couldn't.
Kathryn: Insane. Insane. So once someone hires an attorney, what kind of are the steps? Do you send them a letter, send them notice kind of how does the process work and what should the victim expect to happen?
Vincent: Well, every firm's going to be a little different. I can describe our process. We're going to immediately do an intake. We're going to assign you a team of three attorneys. We're going to make sure it's a team that you feel safe with. Right? Sometimes there's some women who have been through a lot. They look at me, I look like the problem, then I'm not going to be on their team. That's not fair. Right? So you achieve that comfort level. You handle an intake. You make sure that you have all of the story, all the documentation, all the details that takes time, because the human mind on the first pass through story, they forget details. It's just how we work. Just all human beings, right? So you want to go through it a couple of times, you want to really work on it, get it exactly where you want it and make it the most valuable, most compelling narrative you can. And then you reach out. You reach out to the other side. Generally, I like to do it on a Friday afternoon. I want to rattle them. I want them to know I can reach into their lives and shake them around. And they're not safe for me at happy hour. They're not safe for me at home with their kids. Right? It's going to go in their email box, hit their phone and ruin their night. And that sounds nasty. But considering what they've done, I'm okay with it. It's a little sliver of what they visited upon someone else. And that letter's going to do a couple of different things. It's going to put in place a discovery freeze. It's also going to give them 10 business days to contact us about what they've done wrong if they want to negotiate. Sometimes they do. Sometimes they don't. If they don't, you have to push forward with all the aggression you can.
Kathryn: And what is all of that aggression that you can push forward with?
Vincent: Well, it always depends where you are. Every jurisdiction is a little different. So in every state, you can file with the equal employment opportunity commission. Now that's going to be one of those private agencies that I mentioned. and I think we'll probably talk about that a little bit later on, but the advantage there is that your name is not going to pop up on Google. It's not going to pop up in a background check. And so it lets you activate the federal laws and start the process without, talking to reporters without being out there and putting yourself at risk in a way that you may not want to.
Kathryn: No, that makes total sense. Can you talk a little bit about, as you mentioned, we're going to, we're going to talk about it. What is an EEOC complaint and how does that process work? I know it's been thrown out there. Everyone says EEOC, but I don't think really anyone knows what it actually does and how the process works.
Vincent: Well, there's two EEOC. There's the equal employment opportunity commission that was supposed to exist, that was created originally. And there's the partially defunct agency that exists today. It was essentially an agency brought about to work on civil rights, work on workplace discrimination, push equality. And the plan was that they would do lots of enforcement work, lots of litigating on behalf of claimants. And that never really materialized. They were just never really funded or at least never really efficient about doing that. So what they came to be instead was kind of a vetting organization to stop cases from going directly to federal court. So before you can go to federal court, you have to file with Employment Opportunity Commission and you can get, eventually, your Right to Sue Letter, which is kind of like your key to go on to federal court. But while you're there, generally what happens is private attorneys will use that agency as a stopping point where they can get discovery. They can mediate a case. They can hold negotiations and apply pressure and all these things. So as a standalone agency, with the original purpose of directly helping victims, I think it's a failed agency. I don't think they do help most victims. And I think most people are very confused when they get a standard form letter telling them anywhere from two months to four years after they originally filed, they get this letter just telling them, oh, you're free to go on to Federal court, no result here. We're not going to sign an attorney. We're not going to do anything for you. Good luck. That's misdefined to most claimants. If they're not represented by counsel it's jarring, they often think they lost because nothing happened. They did not lose their case is still healthy in every way, but it's confusing. Right? So in the hands of an attorney, I think the commission is valuable. It certainly has its uses, but if you're on your own, you're probably going to want to look at some of the state agencies. If your state has one, because often in terms of enforcement, they're going to assign investigators. They're going to have fact-finding conferences. They're going to pull discovery. They might even give you a trial and a decision all without ever being on a public docket. That might be what you want. That's available in New York. It's beautiful for many people. And it also helps people not to absolutely need an attorney, right? Some people don't want to have to go that far. They want to do it themselves. They want to keep it small and they can do that with a more fully-featured agency in their state.
Kathryn: That's great. And some people can't afford an attorney. So are these claims often on contingency or how does it work if someone cannot afford to hire an attorney after they've been sexually harassed?
Vincent: I always get very nervous about an employment attorney who wants to bill on an hourly basis. This is a field where you should be thrilled to win your money, right? I mean, you're monetizing hate for lack of a better phrase. So you should be going out there and ripping your money out of the other side. It's that simple. Now we do offer hourly. Cause there's people who come in who say, listen, I know I have a seven-figure claim. I know what it's worth. I don't want to give you a percentage. I'll pay you hourly. Okay? You're the boss. That's fine. But our preference will always be to work on a percentage and to cover the expenses of the case. Because many people, if you're a young woman who gets sexually harassed, we're going to McDonald's what are you going to pay? 500 an hour for an attorney it's not realistic. What is she going to do? You know what I mean? So firms like ours have to exist. They have to be willing to say, we got this. And if we don't win, we're not going to get paid. We have to assume the risk because frankly she's been through enough.
Kathryn: No, that, that makes total sense. What about these class action lawsuits that are happening? And you mentioned McDonald's and McDonald's is going through a sexual harassment class action lawsuit right now. I believe, excuse me, if I'm misquoting, but I'm pretty sure that they are. And so what about groups of people coming together that have all been impacted by sexual harassment?
Vincent: Those are tremendous in terms of the changes they can render on a company, on the corporate culture. The downside to those is that the claimants generally get pennies on the dollar, while the attorneys get fabulously rich, right? So if you're representing thousands of people, maybe 3000 people in a case, right? And you achieve a settlement, they might get a couple hundred dollars each. Wow. But the attorneys, the attorneys are gonna walk with millions and listen, it doesn't mean the attorneys haven't done something good. They might have really taught that company lesson. They might have really changed the face of a corporate culture, but we haven't really made the people who were harmed whole. And that's a problem to my mind.
Kathryn: That's interesting. I really liked that phrase, making a person who was harmed whole again. And that's really, I think what filing against a sexual harasser is. It's not some vindictive power move, power play, it's that this person has been wronged. Someone has been wronged and they are trying to make it right. And they are trying to fix the situation and fix themselves and try and figure out what happened and why did this happen? And how can I prevent it from happening again?
Vincent: Absolutely. And that's what people want to ignore. Right? There's a lot of people who want to say, "Oh, it's just women out there. It's a war on man. They're trying to get rich." Yeah, that wouldn't be possible if a guy, in some scenario, hadn't tried to abuse a position of power to get some level of affirmation or intimacy, some kind of sexualized benefit to himself. And it doesn't have to, to be sex, obviously. Anything, whatever he's deriving, whatever causes him to want to do these things to a woman who he has power over in the workplace, it harms her, it harmed her mental wellbeing. Harms her career, harms her earnings potential. And I don't really see how anyone could go, frankly, it's going to change the path of your career. It's going to change your, psyche. If you let that go. Well, when do you stop letting it go? When you decide to fight, right? It's a very strange thing. It's like being bullied on the playground. If you take it every day, eventually you kind of change the person because you let it go. You let it go. And you're always that bully. You let it go and let it go. It changed you, harmed you.
Kathryn: Exactly. It does change you as a person. And as we mentioned every woman is experiencing this and it's changing every woman. I know so many young women who have been impacted or they say this happened. I'm not sure. And I am always like that was sexual harassment. You know, it might not be the textbook case that you think of when you think of sexual harassment, but it was sexual harassment. And there are things that you can do about it. And that's why I think this conversation is just so important to have to know that people have power to do things, to make change.
Vincent: Without question. And I think it's important to remember the attorneys, they can't afford to just agree with you, right? If you describe a scenario, I've had to do it. I've had to do it myself where I say, "Okay, listen, yes, I agree with you. That was inappropriate. I'm not going to be able to sell that to a jury. I don't believe I can win this for you yet. So I don't think you should bring a case yet." Right? And that's a horrible conversation to have, because I do think she's gone through something. I do think she's been wrong, but I have to keep her interests at heart and just say, well, it's not there yet. What good is swinging? If we don't think we're going to connect. Right? And that's a very difficult conversation.
Kathryn: I'm sure that is a difficult conversation. And yeah, I can only imagine having that conversation. But then again, that's why you're not their friends. You're an attorney. And that's what you're there for, is to provide that transparent feedback on the situation.
Vincent: You have to let them know what kind of leverage they have, what it might be worth, what the risks are. You can't substitute your judgment. These are intelligent human beings. They're going to make their own choices. Our firm is a tool, right? We, we do the fighting for you, but you call the shots.
Kathryn: And once an EEOC complaint is filed, someone takes that step, which is a big step to take, which basically that the organization is not doing their job to fix the situation. How many companies then say, oh no, no, no, no, well, we'll settle or we'll do whatever you want because they don't want that kind of going public. And they don't want an EEOC person coming to the office and investigating and things like that.
Vincent: The settlement rate in this field is through the roof. It's very high, for a variety of reasons. One, as you mentioned, companies are trying to protect their brand, their public image, right? And that's very important. Nobody wants to be seen as this horrible villain, but there's also kind of the hidden secret that defense attorneys in this field, they're billing $1100, $1300 per hour, right? So if you pay the money to fight a case off, even if you win as an employer, you might end up paying more just to pay your attorneys. Right? So knowing that we'll be seen as this monster and knowing how much it will cost you to fight off someone who's reporting. Often the rational choice is we should have a conversation. We should look at mediation. We should look at settlement negotiations and we should have a conversation and see if we can get to a mutually acceptable solution. Right? That's also often good for the plaintiff, for the victim of sexual harassment, right? Because she's got a career. She doesn't want to go to federal court and face a jury. She doesn't have the time. She's got better things to do, nor does she want her name cropping up on Google for the rest of her life. Every time she applies for a job. So the settlements are often mutually agreeable with the confidentiality and the mutual non-disparagement, there's a lot that goes into it that lets everyone say, this is the best for me. Which that means is the best for everyone.
Kathryn: No, that makes total sense. And finally, can you give our listeners any last advice or information on sexual harassment, the reporting of the filing of an EEOC complaint, any kind of last advice that you may have?
Vincent: I would say, talk to attorneys early and often and never feel like you owe them anything. Right? Call us up. "Hey, this just happened to me. It made me feel this way. What do you think? What should I do? Let's talk it through." and anyone in our field who says anything, but okay, let's do that. Free of charge. Let's have that conversation. They're not in the field for the right reason, call someone else. They will help you. Not just our firm, any good firm, employing good attorneys will do that for you and have a conversation. Know your rights. You might not use your rights. You might say not right for me, not today, but every conversation you have going forward in that workplace, you'll be informed. You'll be empowered. You'll have the ability to know where the line is and where you can start pushing back. Right? And that's invaluable.
Kathryn: 100%. I think knowing your rights is invaluable. And it's something that many folks just don't know. They don't know what they can do, what their power is, and their options. So I think that talking to an attorney is a great option. So thank you so much for being on the show today and your very insightful comments really appreciate it.
Vincent: Thank you so much for having me. I hope I was useful. You were definitely.
Reckoning is a podcast produced by Garbo, a tech non-profit building a new kind of online background check. Our executive producer is Imani Nichols with whisper and mutter. Please subscribe to the show via your favorite podcast app. And as always, please send your questions and comments to email@example.com
We work with online platforms to help proactively protect their communities through our innovative background check system. Get in touch to learn more about how we can integrate Garbo or help you proactively screen users at sacale.