By Jessica Contrera / The Washington Post
She watched her son leave for high school, flipped on the flat screen and then, Alecia McNair waited. Most days, her habit was to listen absent-mindedly to “CBS This Morning” as she prepared for another day as a 53-year-old single mother. But this past fall, it seemed that every time she turned on the news, there was another story about a man who had abused his power, a woman who had finally spoken up, and—this was the part that McNair could hardly believe—an apology.
“And that was something I feel that I never got,” she says. She was like so many women, carrying around an experience that she had never really talked about, that she blamed herself for, that she had been determined to leave in the past. But now? It seemed like something was changing. McNair, who asked to be identified by her middle name, no longer worked at the company in Georgia where she says she was harassed. But maybe, she thought, she owed it to the women who were still there to speak up.
For the first time, she called an attorney—she made sure to choose a woman—and told her everything. About his comments. His pornographic pictures. His touching.
Amanda Farahany listened carefully, taking notes on everything that would indicate McNair’s employer had known that the man was predatory, but had done nothing. It sounded as if she might have a case.
Then Farahany asked McNair when all this had taken place. In Georgia, the statute of limitations for filing a workplace discrimination claim is 180 days.
“About two years ago,” McNair answered.
Farahany braced herself to say what employment attorneys across the country have found themselves reluctantly repeating more and more since the #MeToo movement began.
“I’m sorry to say that there’s probably not anything we can do to help you.”
Despite the torrent of attention being paid to sexual harassment and discrimination, the legal system in place to respond to related claims has not changed. Many have been inspired to seek legal action only to learn that it’s probably too late to file a lawsuit. Others are coming to attorneys seeking the swift consequences being dealt out to men in the public eye, and are learning instead that in most cases, speaking up is just the first step in a difficult process that can last months or years—with no guarantee of a resolution.
“Attention to the issue always helps, but there is no silver bullet, no overnight change where suddenly this becomes easy,” says Emily Martin, general counsel for the National Women’s Law Center.
Her organization is administering the “Time’s Up” legal defense fund, an effort by celebrities and activists to connect those who have experienced workplace sexual misconduct with legal aid. Since the fund was announced on January 1, more than 1,000 people have requested its assistance.
A spokeswoman for the Equal Employment Opportunity Commission (EEOC) says that agency, too, has been “inundated” with requests. At the San Francisco-based nonprofit Equal Rights Advocates, a new intake system is being installed to handle the increasing volume of harassment claims.
“Anyone who works in this area is being deluged with calls,” says Debra Katz, an employment attorney in the District of Columbia. “It’s everything. My emails at night. People contact me via Twitter, via LinkedIn, via Facebook. It just doesn’t stop.”
Many, like McNair, reach out about harassment they experienced years ago. But in many states, even if only a single year has passed, it’s too late. The federal deadline to file a written charge of discrimination with the EEOC—a required prerequisite for suing under federal anti-discrimination laws—is 180 days, sometimes extended to 300 days based on state law.
Farahany, McNair’s attorney, thought that she possibly could work around the short time limit by filing the case as a personal injury claim in state rather than federal court—but even then, McNair would have had to submit her claim within two years of the alleged harassment.
“If she had come to me even a few weeks earlier, it might have been different,” Farahany says.
Different, but far from easy. For those who find an attorney to take their case—something that’s far more difficult for low-wage and undocumented workers—the challenges ahead are significant, even if there’s documented proof, witnesses and other elements of a winnable lawsuit.
If victims are looking for new employment, Katz warns them that human resources departments are typically wary of people who have taken their former employers to court.
“Even if they have the most meritorious of claims, they will be perceived as unsuitable or not given real consideration,” Katz said.
It’s probably beneficial for victims to seek counseling or therapy—but first, their attorneys caution, they should know that what they say to a therapist can end up in the hands of their former employer and be used against them in court. When a person sues for emotional damages, the opposing counsel can request to examine their entire mental health history.
Having your medical records used against you in court “is one of the worst things I have to tell people is likely to happen,” said Lisa Stratton, co-founder of the Minnesota-based nonprofit Gender Justice.
Then there’s the problem of time. Are victims willing to spend months—and more likely years—thinking about the harassment or discrimination they experienced?
“We had a clear case where (the woman) was sexually assaulted on the job. It was an unequivocal violation. It took 10 years to get a settlement for her,” said Delia Coleman of Equal Rights Advocates. “So the hurdles are real.”
Even if every hurdle is cleared, the reality remains: It’s still possible to lose. That’s why 44-year-old Carla Clehm changes the channel every time sexual harassment comes up on her favorite shows, “Megyn Kelly Today” and CBS’ “The Talk.”
In 2014, Clehm was sexually assaulted by a co-worker at the Radford Army Ammunition Plant, a military manufacturing complex in Virginia. Joshua Linkous dragged her into a room, shut the door and shoved his hands down the thick brown coveralls that were meant to protect her from chemicals.
Linkous eventually pleaded guilty to sexual assault, not just of Clehm, but also of two other co-workers. He admitted everything he had done to her and was sentenced to 14 years in prison.
Clehm filed a suit against BAE Systems, the defense contractor that ran the plant, alleging, among other claims, that they did nothing when she first reported the attack to a co-worker whom she considered to be above her in the company hierarchy.
In December 2017, as the #MeToo movement continued to grow, U.S. District Judge Michael F. Urbanski granted summary judgment in favor of BAE.
Although Clehm did tell a co-worker about the assault, Urbanski wrote in his ruling, that person had no supervisory responsibility over her and was not part of company management. “Plainly,” Urbanski wrote, “Clehm did not take advantage of BAE’s harassment reporting procedures, of which she was well aware.”
When another employee who had been assaulted did follow the proper procedure, the company immediately escorted Linkous from the property.
In the judge’s view, BAE had done what it was supposed to do, and Clehm does not have a case against the contractor.
Her attorney, Brittany Haddox, knew this might be coming. She tried to explain it to Clehm. “Just because something bad has happened to you does not mean you have a remedy of law,” she said.
But Clehm was stunned.
“This judge can say I wasn’t entitled to anything as much as I lost?” she said. “My health issues, my whole life just totally went down, and it’s still down.”
BAE offered this statement on the case: “The health and safety of our workforce is of paramount importance, and all of our employees are expected to help create workplaces where everyone feels respected and safe. The conduct of Mr. Linkous in 2015 was inexcusable and we are satisfied that justice was served. It is unfortunate that Ms. Clehm and her attorneys decided to bring meritless claims against the company. In dismissing her case, the judge found that BAE Systems had responded appropriately at every turn.”
After the ruling, the company is asking that Clehm pay more than $8,000 of its legal fees. She still works at the plant, putting on her coveralls, passing the building where she was assaulted on her 12-hour overnight shift. When she is able to sleep, she says, it’s on her living room couch, where she has exit doors within sight. She won’t see a therapist because the last time she did, the notes from her sessions were turned over to her employer’s attorneys.
Mostly, she worries about a question a friend asked that she hasn’t been able to get out of her head.
“He said, ‘Carla, do you think Josh is gonna come get you when he gets out of jail?’ ” she says.
Soon, she will have to decide whether she wants to appeal. She knows it will cost more money that she doesn’t have. She says she wants to believe that after #MeToo, women won’t be as scared to talk about what happened to them. She just has to change the channel when she sees them doing so.
“I can’t bear to watch,” she says.
Meanwhile, in Georgia, Alecia McNair still starts her mornings by turning on the news. She understands now that she won’t ever see her harasser in court. Still, she’s been wondering if there’s something else she can do to get what she wants most.
“It’s not over for me,” she says. “I still have a desire to contact him at some point and say, ‘Hey, let me take you out for coffee.’ I want him to look me in the eye and say ‘I’m sorry.’ I think that would give me more satisfaction than anything else.”