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Podcast: Becoming a Movement Lawyer

by Katie Wolf

on 25 April, 2019

 

You’ve seen it in your Facebook feed. You’ve watched it bring down media empires and elected officials. We’re living in the #MeToo moment, when unprecedented numbers of people are coming forward to share their experiences as victims of sexual harassment and survivors of sexual assault.

Today, we’re talking to civil rights attorney Jean Hyams, who has gained national renown for her work representing victims of sexual assault. Jean is sharing with us what it means to be a #MeToo Movement Lawyer in exciting but difficult times.

Learn more about Jean Hyams and her work at her law firm’s website.

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Join us as we sit down with the country’s best attorneys to talk about their processes and practices, as well as their outlook on the always-changing legal landscape. You can browse episodes on our blog, or find us on your favorite podcast directory. New episodes every month!

 


Transcript

Katie: You’ve seen it in your Facebook feed, you’ve watched it bring down media empires and elected officials. We’re living in the “#metoo” moment when unprecedented numbers of people are coming forward to share their experiences as victims of sexual harassment and survivors of sexual assault.

Welcome to the FileVine Fireside. I’m Katie Wolf.

Today we’re talking to civil rights attorney Jean Hyams, who’s gained national renown for her work representing victims of sexual assault. Jean is sharing with us what it means to be a #metoo movement lawyer in exciting but difficult times.

Jean is joining us from her all-woman law practice in Oakland, California. Thank you so much for taking the time to talk to us, Jean.

Jean Hyams: It’s a pleasure to be with you.

Katie: I am a huge fan of your work. Could you explain what it is that you are doing right now?

Jean Hyams: Well, I’m part of an all-woman firm in Oakland, California where we focus exclusively on representing people who’ve been victimized by harassment, discrimination, and retaliation, mostly in the workplace although we do also represent victims of sexual assault and sexual abuse in other contexts like housing and doctor/patient relationships, clergy abuse, teachers, those sorts of things.

Katie: I have to ask. You’ve been doing this work for a while. Did you foresee the #metoo movement coming?

Jean Hyams: I would say that I am surprised that the moment has arrived. I’ve certainly been hopeful my entire career that a moment like this would arise. I’m not surprised about what we’re hearing. This is something that those of us who’ve been working on women’s rights and victim’s rights issues have known all along, how pervasive everything is. So that part’s not surprising. But the fact that it has finally, finally grabbed the attention of the public and people who didn’t realize how pervasive it is, is a really wonderful development.

Katie: Do you have theories about what brought that change?

Jean Hyams: Well, I sure do.

I think that… On some level, I don’t think this moment could have happened at any other time. Right now, sitting in the White House is someone who has himself, described conduct that in most workplaces, really in all workplaces, would constitute sexual harassment.

So I think that women around the country have sort of woken up to the reality that it’s going to be on us to change or to raise this conversation to a level where change can take place. What’s now is that silence is being broken. And incredibly powerful step. Abuse really can only thrive in silence. And we’ve all to some degree or another just kept our mouth shut and borne the harassment for so many years. And between the fact that we realized that it’s going to be tolerated up to the highest levels of government if something isn’t done to stop it, and the availability of social media, for women to connect with each other and to stand together and to say — I’m not alone in saying this, #metoo — being able to identify common perpetrators, all of those innovations that involve technology as well as a national understanding of really how bad it is in terms of society tolerating what’s been going on, has caused this moment to ripen.

Katie: That’s fascinating. When you mention technology, do you mean things like social media?

Jean Hyams: Yes. I mean social media. There’s fascinating software out there now, where women can report sexual harassment and the software itself can identify common perpetrators. That’s something that’s being used in campuses around the country for instance. And certainly just even the #metoo on Twitter has helped women to rise from anonymity and to share their experiences.

Katie: One issue that I keep hearing that people have some anxiety about is this desire for a bright line that would demarcate what is legally sexual harassment and what isn’t. What’s your take on that as a legal expert in this field?

Jean Hyams: What’s sexual harassment? Sexual harassment is behavior directed towards someone because of their gender that you wouldn’t direct towards someone of the other gender.

So, if you make it a point to go around and give back rubs unsolicited to all your female colleagues and you’re not doing that to the men, you should think about where that impulse comes from and restrain yourself from doing it.

Certainly things like touching women in personal places without being in an intimate relationship with them, that’s an easy line. Anything that involves touching I think is a very easy line. But beyond that, circulating what you may consider to be jokes on an email, that might even get a response from someone that makes you think they think it’s funny too, can also be sexual harassment, because you’re putting them in an uncomfortable position. Either they are going to be the kill joy, the buzz kill of the party at work and stop that kind of behavior, or they’re going to have to pretend to appreciate it. When it’s not work related it’s not appropriate in this… The current environment for me, as a sexual harassment lawyer, texts and emails have become the mainstay of my practice because people share things on texts and email that are just shocking — pornography, pictures, graphic suggestions to coworkers or subordinates — all of that sort of thing happens.

And I don’t think that it’s a big surprise or confusing to most people what is or isn’t sexual harassment. One important thing that everyone should know is that when you’re trying to figure out what is or isn’t sexual harassment, you have to look at it from the position of the person to whom the behavior is being directed. They call it “the reasonable woman standard,” or the reasonable victim standard. So you judge whether or not something is sexually harassing from the standpoint of the person who’s being victimized by it, not from the intentions or the viewpoint of the person who’s doing the action. So it really doesn’t matter if you didn’t mean it, what matters is how it was received.

Katie: Yeah. And that leads us also to this issue of, this isn’t about a single group or a single event or a single person or a single bad apple, but really what you’ve been doing your work inside of for this for years is this culture that permits these sorts of behaviors.

What do you view as your role in the legal system to engage or change or shape that culture?

Jean Hyams: My law partners and I, we’ve all been drawn to practice these kind of laws fighting on behalf of victims, because we want to change the culture. I mean, this is not about single cases. That’s not the kind of lawyers we are. We’re in this to try to change institutions and ultimately to try to change society.

I firmly believe that employers and institutions, like schools and government can stop sexual harassment as a cultural problem. They have the power to do it and it takes focus on the issues and an understanding that this isn’t a single bad apple problem. Just removing the people who currently have the power to abuse is not going to stop the problem. And that means holding them accountable, conducting real investigations that look not just at whether or not a particular incident happened, but whether or not this person is a repeat offender. Because as the #metoo movement has, I think, very, very clearly pointed out, a lot of perpetrators, probably the majority of perpetrators, don’t just do it once. It’s what they do. It’s what they do with the power that they have. And you shouldn’t just be investigating a single incident and putting it on the victim to prove that it happened. You should be looking at whether or not this is a person who’s engaging in abusive power more broadly.

Katie: People just can no longer put their hands over their ears and believe it’s not happening. Because it’s in their Facebook feed, it’s on every show, it’s affecting lives now.

Jean Hyams: Yeah. One of the things that we’ve always grappled with in sexual harassment cases is — why didn’t she complains sooner? Why didn’t she tell HR when it happened? The minute he crossed that line, why wasn’t she marching into HR?

That question has always infuriated and enraged me, because it completely betrays a misunderstanding of the way that power relationships work and the fact that it’s a no-win situation for most victims to come forward, at least until now. And victims know that, and that’s why they’ve remained silent for decades at times.

Now that we’re hearing the stories of women in their 70s and 80s who we’re talking about things that happened to them in their 20s, and they’re finally feeling like they will be believed — that just speaks volumes to how messed up our view of how pervasive this is and of the credibility of women who speak out is. And, also the shame that is so huge and that is a big piece of why people remain silent.

Katie: Yeah. I wanted to ask you, Jean, if you had suggestions for how attorneys or counselors or different people supporting victims of sexual assault can counteract that, that shame.

Jean Hyams: One of the first things that I find myself saying when I meet with someone who wants to talk to me about an experience that they had of sexual harassment is to tell them over and over again, the shame is not yours. The shame is his.

Because most of the time when I talk to people, they’re constantly second guessing themselves. They’re saying — I shouldn’t have gone into his office; I should never gone out to lunch with him when he said he wanted to mentor me; I should not have done X, Y, or Z, all kinds of things — because, as victims we always are trying to figure out, how could I have avoided this? We want to believe that there was some way we could have controlled what happened so that this terrible thing that happened to us didn’t happen.

So I think that we cannot say often enough — I believe you, and it’s not your fault, this isn’t your shame to carry; this is his shame and you shouldn’t be the person who pays the price; the perpetrator should pay the price.

And it’s hard — an abuse of power robs the victim of control and of agency.

Katie: One other issue that often makes it difficult to break silence like you’ve been speaking of, are these nondisclosure agreements. We’ve been hearing a lot about those.

What’s been your experience with nondisclosure agreements and people who deliberately break them?

Jean Hyams: Well, at our firm, we are adamantly opposed to nondisclosure agreements and settlement agreements other than as to the terms and conditions of the settlement.

But nondisclosure agreements that turn into lifetime gag orders on victims are absolutely unacceptable. That just robs women of agency again and says to them — OK, this terrible, terrible thing happened to you for what you are not at fault and which you have been damaged by, but now you need to keep his secrets; you need to continue to keep secret the harm this person did to you and the acts that they did against you, and the responsibility that an institution that should have protected you failed to carry out.

And that is, I think, terrible public policy. I think it’s one of the reasons why it is a big shock to so many people, how pervasive sexual harassment is. Because all of those cases that have been settled with gag orders on victims, every time that happens, the light gets turned off on what’s going on. And then, people get surprised because they have no idea.

Katie: I want to shift gears just a little bit, Jean, and ask you how you came to this work personally. Did you grow up wanting to be, the Wonder Woman of sexual assault attorneys? Or did that come to you later in life?

Jean Hyams: People were telling me I should be a lawyer from the time I was quite young, including in high school. And I thought, OK, I’ll be a lawyer. But then I got of college and thought first, I’m not really ready to go back to school again. And also, it’s sort of ridiculous to make a decision when you’re 16 years old about what you’re going to do with the rest of your life.

So I actually took a little side journey, a little bypass, and I was hired straight out of Wellesley, at a small startup company in the Silicon Valley, now known as Oracle Corporation. So my first job out of college was as Larry Ellison’s assistant, at a time when Oracle was less than 50 employees. I think I was number 42.

So I got a very early experience of what the startup culture was like, of what it was like to be in a workplace that was surrounded by mostly very, very young people, all working crazy hours, and hanging out together.

I’m happy to say that I don’t have any bad experiences to report from that, from the two years that I worked there in terms of any kind of harassment. But it gave me a real insight into what culture looks like inside of an organization and how much culture is set by those who are at the top of the organization. And I was fascinated, and moved into more of a management position, and then I moved to Hewlett Packard, which is a completely different kind of an organization, and found that to be very fascinating.

And then somewhere along the way decided I was really ready to go to law school because I wanted to be in a position where I could make some change.

Katie: The work that you do engages with such big, heavy questions. You also support people who have been discriminated against because of disabilities, or different civil rights violations. How do you care for yourself while you’re doing all of this?

Jean Hyams: Well, I’m really lucky, because I don’t do it alone. Our firm, the four partners and our two associates, and really everyone who works at our firm, we really support each other. We don’t handle cases solo; we always work in tandem or even larger groups, so that we can turn to each other and check in as things are happening.

Sometimes, honestly there had been times in my life where I couldn’t handle sexual harassment cases. I couldn’t handle representing clients in sexual harassment cases because I found them so anxiety-producing. Because I wanted so much to protect my clients. And I think that because I’m also a woman, because I’ve also encountered sexual harassment in my own life, it can touch too close to home. And I luckily work in a work environment where I can say that to my partners and they understand and respect that, step in, if I need to step back and take care of myself. And I do the same for them.

Katie: What are the moments in your work that most give you hope?

Jean Hyams: Talking to the women and other people who we represent is always a moment of hope and of… I don’t know… It sort of sustains me. Because, when I sit down to talk to my clients, what I try most to do is to listen. My job is to sort of tell their story. So if I can listen deeply, and with as much compassion as possible to what has happened, it always helps me to understand what the story is and how to tell others about it.

And the examples of human resilience that live inside every sexual harassment case, every experience of being discriminated against on the basis of race, every person who doesn’t get reasonable accommodations in the workplace, and to sit and to hear the story of everything they tried to do and how they managed to get through what was a demeaning or damaging or difficult situation is always a revelation.

So I would start there. I would start there.

Katie: Those are powerful words, Jean.

Jean Hyams: Thanks.

At the end of the story, there can also be moments that are life-changing for a lawyer, certainly. I have had jurors who cried as verdicts were rendered, where they got the opportunity to do justice for someone. And I have seen jurors step out of the jury box and rush over to my client to give them an embrace, because they’ve been sitting there listening to the story of what happened, and, until they got to go back into the jury room, they weren’t allowed to talk about it and they weren’t allowed to do anything about it, but once they finally got the chance to do justice, you know, the story becomes their story too.

So to see that happen is an incredible privilege.

Katie: You’ve got me tearing up a little bit here too.

So often in these situations it seems like actual justice — it’s hard to figure out what actual justice would mean or if it’s possible — but with what you’re saying about sharing the story, whether telling that story compellingly on Facebook or in a legal trial, there’s profound capacity for justice in that act.

Jean Hyams: I’ve been thinking a lot about the importance and the power of bearing witness. I mean, it’s a religious concept. It’s also a legal concept. And ultimately it’s the least we can do.

Sometimes, and I think the #metoo movement speaks to this in volumes, it’s the most powerful thing that we can do.

Katie: Yes. Yeah. Thank you for the witness that you have borne and the work that you do.

Jean, if you were to leave one final thought with listeners of this podcast, what would it be?

Jean Hyams: Well, I would want to speak specifically to the other lawyers who are taking part in this #metoo moment.

We’re really part of a movement. I think that this moment calls on us to understand and to talk to our clients about, not just the specific interests that we’re serving in a particular consultation or representation, but also the much larger role that we have to play at this moment in time in making social change.

So I think we need to think of ourselves as movement lawyers. And I’m happy to say that a lot of the other lawyers who are representing women in this movement are open to collaboration, to trying to figure out how can we make sure that the steps we take forward right now or the biggest steps we possibly can.

Katie: Just as a personal side note, I’ve also, in community organizing work, it makes all the difference when you find an attorney who’s a “movement” lawyer rather than fighting against you, each thing you’re trying to do publicly. So…

Oh Jean, thank you so much for talking to us and for sharing your stories and your thoughts with us, and thank you so much for your work.

Jean Hyams: Absolutely. Thank you all really. I appreciate it. It was interesting and that’s… That makes all the difference.

Katie: That makes all the difference.

This has been the Filevine Fireside. I’m Katie Wolf.