Punishing the Victim – Retaliation against Lawyer after Sex Assaults

Punishing the Victim – Retaliation against Lawyer after Sex Assaults

[Multiple post updates] A female junior partner at law firm DLA Piper says she suffered retaliation after reporting she was sexually assaulted by a male partner. The woman claims that after she reported the assaults her work performance was criticized and she lost work opportunities. For purposes of this post, we will refer to the lawyer by her first name.

Vanina says she was hired in September in 2018 as a junior partner at DLA Piper’s Silicon Valley office. She was hired to work in the firm’s US Emerging Growth and Venture Capital. DLA Piper is one of the largest law firms in the world employing approximately 4,200 lawyers.

She says she was recruited to work for a senior partner named Louis Lehot. Within two weeks of starting work, Vanina says she was sexually assaulted in a hotel room in Shanghai while the two were on a business trip.  Within a couple months she says she was sexually assaulted two more times, once in Chicago and the other in Palo Alto.

According to an open letter she wrote to the firm’s management,

“Mr. Lehot’s extreme temper and angry tirades that include shouting and clenching his fists are common knowledge at the office. Lawyers, staff and admin assistants do everything possible to avoid his wrath. My many attempts to fend off Mr. Lehot’s sexual advances failed. Mr. Lehot controls my work and my ability to advance. When I dared to tell him to stop, Mr. Lehot would refuse to speak to me for weeks, threaten to take me off of client deals, and accuse me of underperformance. Horrifically, I later learned that he suggested to numerous men at the Firm, and to certain clients, that he and I were involved in a consensual relationship. After months of Mr. Lehot’s relentless campaign and physical advances, I began experiencing panic attacks and stress related medical conditions that landed me in the emergency room several times.

Like many victims, Vavina says she was reluctant to report the attacks. Having moved her entire family from Hong Kong to California, she worried about her family and her own well-being.

According to her letter to management, Vavina says she first complained to the co-managing partner of the Silicon Valley office, Sang Kim.

“After the panic attacks started, I again reached out to Mr. Kim. I believed, naively, that he would do the right thing and help me. In July, I broke down and told Mr. Kim about Mr. Lehot’s specific conduct. Shockingly, he responded by saying that it sounded like a ‘he said, she said’ situation and that the best way to resolve it was for me to “talk it out” with Mr. Lehot and three other senior partners – all men. Just days later, Mr. Kim took me off one of the practice’s largest deals.”

The Retaliation Gets Worse

After we wrote this post we were shocked when just 13 days later we learned that Vavina was being placed on administrative leave. If her allegations are true, she had already suffered extensive retaliation. That all pales in comparison to the newest round of retaliation - suspension. Instead of placing the alleged harasser in suspension, DLA Piper has apparently decided to go after the victim. 

Media reports say that Vavina's lawyer received a "bare bones" letter indicating Guerrero was being placed on administrative leave because she "engaged in inappropriate behavior toward, and harassed" a colleague. Reportedly there was no explanation offered. Worse, Vavina says she learned of the suspension from the media and not her employer. She says that her employer DLA Piper is engaged in a barbaric smear campaign against her.

Whether or not Vavina gets paid during her leave is irrelevant. The damage has been done. If she is telling the truth and was sexually harassed, nothing that DLA Piper does can undo the damage to her reputation and possibly her career. We also worry about the effect the law firm's action has on other employees. 

Why would anyone ever step forward and report harassment if they knew that they could be subject to a career ending suspension and smear campaign. We expect better from employers, especially a global giant like DLA Piper.

Where is the truth? the law firm told Law360, "[Vavina's] suspension was done because, during the course of our investigation into her claims, serious issues were brought to the firm's attention regarding [Vavina's] conduct towards and involving others at the firm..."

We believe Vanina. In almost every case we have investigated the employee has been truthful. We also acknowledge, however, that in rare cases some employees exaggerate claims or have a secondary motive. Wherever the truth lies, we fear that other lawyers and staff who feel they are the victim of sexual harassment will now be afraid to step forward. Of all the ways this investigation could have been handled, we think DLA Piper chose the worst possible course of action.

Update: Admittedly, it is often difficult  to know who is telling the truth in a "he said, she said." We believe Vavina, however. Her story certainly has the ring of truth. And the baseless retaliation smacks of a law firm trying desperately to stop other women from coming forward.

Recently a former DLA Piper human resources representative filed her own sexual harassment claim against Lehot. The worker, who filed as "Jane Smith", says that Lehot blew up after she refused his demand to fire an administrative assistant. Later she says was fired after telling firm management that she was afraid to work with him.

If that isn't enough, Lahot fired back and claims that Vavina is not a victim and is merely exploiting the #MeToo movement. In a particularly tasteless move, Lehot is now releasing messages he claimed Vavina sent him after the alleged assault.

On October 29th, DLA Piper took yet another shot at Vavina. In a published letter addressed to the EEOC, the law firm's lawyers once again called Vavina a liar. 

They say Vavina's own emails prove that she was not subject to abuse or assault by Mr. Lehot. "[D]ozens of emails and messages show that Ms. Guerrero was a willing participant in a lengthy emotional flirtation with Mr. Lehot that she orchestrated to advance her career. By just one example, on November 1, 2018—which is, according Ms. Guerrero, after Mr. Lehot already had assaulted her three times—Ms. Guerrero sent Mr. Lehot a link to an article on the reviews of the 'best [bed] sheets' and, when Mr. Lehot responded there were “too many choices,” she suggested they go together to Macy’s or Bloomingdales and 'pick live.'”

If we understand their argument, flirtation somehow justifies sexual assault. This is precisely why judges in criminal cases don't let in testimony about how the victim was dressed. Flirtation and provocative clothing are not a defense to rape. That DLA Piper would even suggest otherwise shows just how out of touch they are with modern day society.

There are certainly questions raised by DLA Piper in its response to the sexual harassment and retaliation charges. We understand that there are two sides to a story. That DLA Piper would try to blame the victim with barely a shred of evidence causes us the most concern.

While we firmly believe that flirtation can never justify sexual misconduct, we question whether there was even flirtation. Is a discussion about bed sheets tantamount to flirtation? 

Lahot is now gone, Jane Doe claims she was illegally fired, Vavina says she not only suffered a sexual assault but has now suffered retaliation by the law firm, and DLA Piper suggests that Vavina invited whatever happened to her because she discussed bed sheets and was therefore flirting with Lahot. Wherever the truth is, DLA Piper has done a shameful job of handling a very sensitive and important investigation.

We remain disappointed that this case has become a circus. Hopefully this shameful show doesn't stop victims of sexual harassment from stepping forward,. Most cases don't get aired in public like this case.

Beware the Fine Print – Arbitration Agreements Prevent Harassment Lawsuits

Vavina has filed a complaint with the EEOC. Her lawyers claim that Lehot is a violent bully that intimidates subordinates to get his way:

“[H]e regularly throws temper-tantrums in and out of the office. Unfortunately for employees and Ms. Guerrero, his physicality and vitriol make him a formidable force when he is yelling, swearing, red in the face ranting and clenching his fists. Such classic bullying tactics are effective when left unchecked, and at all relevant times, no one at the Firm has reined in Mr. Lehot. In fact, his temper is so feared that as intended, employees, including Ms. Guerrero were hyper-vigilant about what they said or did not say, effectively silencing themselves before giving Mr. Lehot an opportunity to do so. Proactively silencing complaints through aggressive rants such as Mr. Lehot’s is textbook harasser behavior.”

Like many employers today, DLA Piper requires new hires to sign an arbitration agreement covering a multitude of disputes including employment and sexual harassment claims. These agreements effectively deny victims their day in court. Unfortunately, courts routinely enforce these agreements.

Unfortunately, most new hires never focus on the fine print of employment agreements. Their focus is on salary, benefits and job duties. Buried in many employment agreements is language in which the employee gives up their right to seek redress in the courts.

Employers love forced arbitration. In our opinion, arbitrators are biased in favor of employers and less likely to award punitive damages. They are also secret thus allowing the employer to face any public scrutiny. The New York Times calls forced arbitration clauses “stacking the deck.”

[Tied to forced arbitration clauses are class action waivers. We faced this battle on behalf of Uber drivers and lost. The court ruled that drivers waived their right to filing lawsuits when they clicked a box on the driver’s app agreeing to drive for Uber. Although drivers could have opted out, we believe that the opt-out language was confusing and buried in the fine print. Class action waivers give companies a “get out of jail free” card because many customers or line workers simply can’t afford legal help to take on a big corporate giant.]

Several legislators have introduced the Restoring Statutory Rights Act that would roll back recent Supreme Court decisions that say the federal Arbitration Act trumps the 7th Amendment. (“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved…”)

It is doubtful the legislation or similar measures will pass in the current Congress.

Is There Any Hope?

There is hope. Although we don’t think there is enough political will just yet to block forced arbitration clauses in sexual harassment cases, public opinion is starting to force employers to think twice about denying workers access to the courts. Two years into the #MeToo movement, the American populace is more aware of sexual harassment concerns in the workplace. Several law firms have rolled back forced arbitration clauses, at least for sexual harassment cases.

Lehot's behavior post allegations has been appalling. If DLA Piper has done anything right, it is parting ways with him. 

While we admire the courage of both Vavina and Jane Doe, we worry that this airing of dirty laundry serves only to scare away others from coming forward. It shouldn't. Filing a sexual harassment claim doesn't always spill into the media like this case. Vavina elected to make her complaint public. That is her choice and one we respect. Jane Smith elected to file her complaint anonymously.

There is no right or wrong, just remember that most cases are not aired in public like this one has been.

Were You Sexually Harassed at Work?

If you suffered sexual harassment at work, give us a call. Our experienced team and network of sexual harassment and employment lawyers can help you obtain the justice you deserve.

We will thoroughly review your evidence and let you know if you have a case; present your case in court; hire experts and investigators to help prove your case; and take your case all the way to trial if your employer won’t settle.

We generally accept cases where the employee has lost his or her job or suffered serious monetary losses. Cases are accepted on a contingency fee basis meaning you don’t pay unless we win.

There is no reason why any employee should suffer from a hostile workplace. For more information, visit our sexual harassment FAQ page. Working at a law firm? You also may wish to visit our post Lawyers and Hostile Workplaces. Ready to see if you have a case? Contact us online, by email [hidden email] or by phone at 877.858.8018. [All inquiries are protected by the attorney – client privilege and kept strictly confidence.]

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Related topics: hostile workplace (17) | rape (6) | sexual abuse (9) | sexual assault (9) | sexual harassment (34) | workplace harassment (25)


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