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Time’s Up Defense Fund Could Have Major Impact, but Also Faces Conflicts

The Time’s Up campaign got as good a launch as could be hoped for on Sunday, with a heavy promotion at the Golden Globes. By midweek, the campaign had raised more than $16 million for its legal defense fund, including numerous donations of $25 or $50 apiece from the general public.

But the administration of the fund, and the criteria by which cases will be parceled out to lawyers and supported through donations, remains very much a work in progress. The fund will be based at the National Women’s Law Center, which launched a network of cooperating attorneys to take on sexual harassment and gender discrimination in October.

“The devil is in the details,” says Kathleen Peratis, who leads sexual harassment litigation at Outten & Golden in New York. “It’s going to get complicated and political. I hope they have some very wise people who can really balance all of these interests and keep everybody from getting really annoyed.”

Sexual harassment cases can be lucrative for plaintiffs’ attorneys, with the strongest cases against major employers sometimes bringing seven-figure settlements. Attorneys typically handle such cases on contingency, taking a third to 40% of a damages award, plus reimbursement for costs. The Time’s Up campaign could end up serving as a central clearing house for highly coveted cases.

The Legal Network for Gender Equality, announced by the NWLC last October, is based in part on similar efforts at Lambda Legal and the Transgender Law Center, which put gay and transgender clients experiencing discrimination in touch with local attorneys who can help them for free or reduced rates.

“There’s a human scale need for legal help,” says Rachel Tiven, the CEO of Lambda Legal. “The legal profession has an opportunity and an obligation to help people protect themselves and improve our society at a cost that individual people can afford.”

In announcing the network last fall, the NWLC stated that its intent was to fill some of the gap that might be left by relaxed enforcement at the Equal Employment Opportunity Commission under the Trump administration. Its first case, announced last fall, involved a police officer in Virginia who alleged that her employer discriminated against her due to her pregnancy.

The Time’s Up legal defense fund is intended to magnify the impact of the legal network. Rather than just referring cases to supportive attorneys, the NWLC will now be able to fund cases that might otherwise be too costly to pursue. The attorneys behind the fund said they would especially focus on gender discrimination felt by low-wage workers, such as janitors and restaurant workers.

Financing legal defense for women facing discrimination had fallen out of favor in the philanthropic world, says Carol Robles-Roman, CEO of Legal Momentum, which does women’s legal defense.

“There’s been an underfunding of legal services for women who have been subject to sexual harassment and assault,” she says. “It’s like nobody was guarding the henhouse, and bad conduct was allowed to flourish.”

Public interest groups often team up with major law firms, which have extensive pro bono practices, in order to challenge discriminatory laws or government abuses. But in the realm of employment litigation, many big law firms face conflicts of interest because they represent major employers. As a result, few of those firms can take on those cases.

“A lot of the employment lawyers who represent the management side will not be able to take on pro bono cases even if they really want to,” says Jenny Waters, executive director of the National Association of Women Lawyers. “The conflict issues limit the pool… Having the fund will help cross that hurdle.”

Firms that represent employees tend to be much smaller, and they typically do not have the leeway to do a lot of pro bono work — which could limit the scalability of the fund’s dollars. Public interest lawyers may also pursue class action cases, particularly for gender-based wage disparities. Those cases can be lucrative if they pay off, but sexual harassment cases are difficult to pursue through the class action process because each violation tends to be unique.

Another concern is whether the fund would be willing to support cases against its own funders, which include CAA, ICM and WME. In an interview with Splinter, attorney Robbie Kaplan — one of the founders of the fund — said she would not shy away from taking on those companies if such cases arise. Such conflicts are, however, an issue in the non-profit legal world, and will continue to be as the fund seeks additional donors to sustain itself into the future.

The costs of sexual discrimination litigation can be fairly minimal if the cases settle quickly. But if a case goes to trial, a law firm might assume $100,000 or more in expenses for court reporters, travel, filing fees, and so on. Those costs can be reimbursed if the plaintiff wins and the employer has the ability to pay. The legal fund could help bring cases against smaller enterprises that might otherwise be too risky or uneconomical for a law firm to take on.

“Sixteen million dollars will definitely provide an opportunity for a number of women to now get representation who otherwise would not be able to do so,” says Lenora Lapidus, director of the Women’s Rights Project at the ACLU.

The fund could also have a deterrent effect on employers.

“Part of litigation is prevention,” Waters says. “When people are getting sued for something, other people take notice and are more careful about their practices.”

Robles-Roman says she also hopes the fund sends a loud signal to girls that sexual harassment and discrimination are illegal, and that something can be done about it.

“As a culture we are summarily unqualified to deal with this,” she says. “This legal defense fund changes that paradigm. I think it’s going to give girls a message that these are rights that we have. You have a right not to be harassed, or sexually assaulted, and there are professional people in place to assist you and make sure it doesn’t happen.”

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