In the latest episode of Looking Back, Moving Forward, “the feared attorney of the #MeToo movement” assesses the legal landscape facing survivors—and how activists can continue to hold people in power accountable.
Debra Katz has been fighting for survivors in court for nearly 40 years—representing clients including Christine Blasey Ford and multiple women who were sexually assaulted by Harvey Weinstein. A founding partner of Katz Banks Kumin LLP, she concentrates in her legal practice on sexual harassment, employment discrimination, civil rights, and whistleblower protection. Katz has been recognized as a “Civil Rights Lawyer of the Year” by The Best Lawyers In America, a directory of top legal professionals in the United States, and a “Top Lawyer” and one of the “Most Powerful Women in Washington” by Washingtonian magazine.
As part of the fourth episode of the Ms. Studios podcast Looking Back, Moving Forward, I talked to Katz about the lessons of the #MeToo movement, the power of laws to shift culture, and how we can continue to advance justice for survivors and hold predators accountable.
Katz is joined in this episode by legal scholar and VAWA pioneer Victoria Nourse, advocate and political scientist Vanessa Tyson, former Ms. writer and editor Ellen Sweet, and The Age of Sex Crime author Jane Caputi.
Together, we traced 50-plus years of feminist writing and advocacy confronting sexual harassment, rape culture and intimate partner violence—and outlined what it will take, in the courts, legislatures and our communities, to finally break the cycle.
Carmen Rios: You’ve been called “the feared attorney of the #MeToo movement” by the Washington Post. What led you to this work? What led you to law, and to these cases?
Debra Katz: Growing up, I always fought for the underdog. I don’t like bullies. I don’t like people who mistreat other people. I was always an advocate for those who were bullied, or disadvantaged, in some way, from the earliest age. It was very clear to me, in many ways, before I had any kind of political analysis or understanding, that there was rampant sexism, and racism, and the world was inherently unfair—and I was determined to play a role in fixing it.
My dad famously said that I really didn’t need to go to law school—I argued brilliantly, even as a young child—and that going to law school would just simply be a formality, but I always knew that I was going to be a champion for the rights of women and marginalized people. That was a given.
Everything shifted when the #MeToo movement happened. When people came forward, and told their truth, millions and millions of people, it became undeniable that this is a societal crisis.
Debra Katz
When I went to law school, I had an extraordinary opportunity to get a women’s rights and public policy fellowship through Georgetown that was just focused on women’s rights issues. The year of my fellowship, the Meritor Savings [v. Vinson] case went before the U.S. Supreme Court, the landmark case on sexual harassment—and thatwas career-defining, for me to get to work with brilliant women from the National Women’s Law Center and the Women’s Legal Defense Fund, now the National Partnership [for Women and Families], in coalition, to figure out the strategy to ensure that we won that case, and that the court would understand that sexual harassment was, in fact, an illegal form of sex discrimination.
Going into the case, we weren’t sure where the court would come out. Earlier, the court had found, in the [General Electric Company v.] Gilbert decision, that discrimination based on pregnancy was not sex discrimination, and that had to be fixed by an act of Congress in the Pregnancy Discrimination Act.
We wound up winning that case, 9-0. It was an enormous victory—and I got to see, very directly, the power of the courts to make a sea change, to make the world a little bit more equitable, as it did in that case, and to protect the rights of women in the workplace, from quid pro quo harassment, [or a] sexually hostile work environment.
As a very young lawyer, I set up a two-person law firm with Lynn Bernabie, and the firm was focused in equal measure on representing civil rights, and women, and sexual harassment claimants and whistleblowers. For the first, probably, five years of our practice, we just worked constantly on those cases. It turns out, if you’re willing to do pro bono work, there is no end to incredibly interesting and important work!
We put ourselves on the map from the work we did. We represented, early on, space shuttle whistleblowers, nuclear whistleblowers and a lot of people who were victims of sexual harassment and discrimination in the workplace.
That’s how it began, and that’s what I’ve done, for the last 40 years. That has been my commitment as a lawyer.
Rios: What is the power of the legal system? Why have you felt, for so long, that the law is a really powerful tool for fighting harassment and violence, and making those sea changes?
Katz: We have seen the court deliver, at times, and make the world provide for rights, and make the world fairer. Unfortunately, we’re in an incredibly alarming, repressive time, where the Supreme Court has been packed by Trump nominees, and the rights that we held inviolate have been stripped from us, from Roe v. Wade, to many alarming rights that we understood we had:oting rights, union rights, workers’ rights.
We’re in a very seriously repressive time, and it remains to be seen whether the courts will hold. There are many great judges. Butalarmingly, the Supreme Court is now 6-3, Republican dominated—and not just Republican, seriously conservative jurists—and it remains to be seen whether this Court will protect the rights of workers, will protect the rights of women, will protect the rights of LGBT people, because this administration is hell bent on stripping us of every right that we have, and sending us back decades, maybe centuries.
Violence against women—and sexism, and misogyny—is deeply ingrained in our culture. And when you have the president, and those around him, who hate women or are hateful toward women, that sends a chilling message, and it infuses every aspect of public life.
Debra Katz
Rios: What lessons have you learned along the way about how we can best take on these issues in such a challenging moment? How can we organize, and keep this effort going—in the courts, in our workplaces and in our communities and our lives?
Katz: The world changes when there are societal shifts. The courts are responsive to what’s happening in our society. It is vitally important that we continue to organize, that we not get dispirited, that we not stop our fight, because that’s, ultimately, what makes the change in the world.
You look at something like gay marriage, where the polling was terrible, and then all of a sudden, it changed. Everything shifted, overnight, and the world felt much more equitable and much more inclusive.
We went through the #MeToo movement. I had handled sexual harassment cases, as I said, through my entire career, and at that point, probably for about 35 years. We represented women who would come forward, and the companies would respond by saying, ‘You’re not telling the truth. You need to leave, the harasser stays.’ It just became the cost of doing business: ’We’ll pay those settlements.’ But these people are seen as mission critical.
You can think of a number of people who just were serial harassers, and they stayed, and it was an open secret. And then, everything shifted when the #MeToo movement happened. When people came forward, and told their truth, millions and millions of people, it became undeniable that this is a societal crisis, a structural crisis in our system, that victims of harassment have not been taken seriously, that they have been discredited—and now it was undeniable, because everybody was acknowledging that this was their experience, and what they saw in the workplace, and sexual violence outside of the workplace, was endemic. When you had story after story coming forward, it felt like the world shifted enormously, and things would not go back to where they were.
Unfortunately, we’re in a moment where those cases are somewhat harder. We can look at what happened in the Weinstein trial. We represented Irwin Reiter, who was the mid-level manager who came forward and was a key source to Jodi Cantor and Megan Twohey, in their reporting. As a result of his courage, and coming forward, and providing, essentially, a reporting map—these are the people who settled cases—they were able to do incredible reporting, and some of those women testified at the first trial, and the court overturned that conviction. He was just retried [June 11], and a partial verdict came back where he was convicted on one count, acquitted on one count. and [a mistrial was declared in] Jessica Mann’s allegations. Whereas in the first trial, he was readily convicted on those counts.
How do we look at that? Juries are still willing to convict, even though explicitly his lawyers argued that Harvey Weinstein was the victim of the #MeToo movement—that his assaults of these women were what the women signed up for in trying to advance their careers.
It was an incredibly offensive argument, but they made it explicitly and brazenly because they felt that the environment had so shifted that a jury would readily say, ‘Oh yeah, she went to his hotel room. Of course, she expected to be raped, and that was the cost of doing business for her. That is the casting culture. He’s not a predator, and now, he is being falsely accused by this #MeToo movement.’
Well, a jury carefully deliberated. After a six-week trial, they looked at the evidence, and they still convicted him. They acquitted him of one of the charges, but they still convicted him, and he is still a convicted rapist, predator, both in California, and now, here [in New York].
It’s more complicated, but we will still get wins.
We’re tired, but people are at risk, and we just have to be resolute, and choose our battles carefully. There will be wins, and I’m just committed to being there with those wins.
Debra Katz
The other thing is, in the aftermath of the #MeToo movement, many states changed their laws to make it easier for victims of harassment and sexual violence to come forward, and change the standard of proof. To prove a sexually hostile work environment came claimed federally, you have to show that the harassment is either severe or pervasive. But what we found was in the federal courts, that was really a Rorschach test. You could take the same facts in one court, where you had a conservative judge, and they would say it’s neither severe nor pervasive, and another judge would say, ‘Yes, grabbing somebody five times, hitting on somebody, discussing sex in the most vile terms, ogling somebody’s body, clearly, sexually hostile work environment,’ because it’s a very subjective standard. ‘Severe, pervasive’—many states have done away with that standard because it was an unworkable standard.
So there is still very important work to be done, legislatively, where blue states are able to understand the issues and pass the laws to make the laws easier for individuals to achieve justice.
In the federal laws, you can’t hold individual harassers responsible. Title VII claims are brought against companies, and there are caps on damages. The caps on damages are such that the value that Congress put on those claims for compensatory and punitive damages has diminished by 60 percent of their value from when they were passed in 1991. There has not been an increase on those damages. In many states and jurisdictions, like where I practice, in D.C., New York, California, there are no caps on damages, and you can bring claims against individuals. That is crucially important. It’s what everybody who advocates on these issues should be pressing for, and we can still have wins, even in times like this.
Rios: You touched on this idea that culture change fuels these legal changes. What about the flip side of that? How does the law shift our culture?
Katz: Decisions like Roe v. Wade, which made abortion legal and opened up that medical service to people throughout the country—taking away that right has greatly limited the services that are available, and the threats to providers, and the really life-altering conditions. So, you see that in the reverse.
You also see when the laws change, like landmark decisions, for example, Brown v. Board of Education, where we can no longer legally discriminate on the basis of separate but equal. Unfortunately, racism, sexism—they are deeply ingrained in our culture, and the courts say what the law should be, but those who are intent on violating the laws and protecting their own positions of power, don’t readily give up that power.
It’s not a one-and-done situation. You can have a great decision, and if those who have to abide by it are not allowing the decisions to be implemented, you need robust courts that will enforce those laws, and that’s always a tension, and it’s worse now.
Having a court say something is illegal is crucially important when people’s rights are directly under attack like this—but you see how malleable it is. We have a Supreme Court decision, Bostock [v. Clayton County, Georgia], that says you cannot discriminate against individuals based on their sexual orientation, based on their LGBT status, and then you have a president who issues an executive order saying there are no trans people, erasing a huge segment of our population. What are the courts going to do with that?
When you have someone in office who denigrates the rights, and denigrates the human value of individuals, employers won’t protect those individuals—and then, people are at risk. We have the EEOC that is unwilling to accept charges of discrimination based on trans status right now, and that is coming from the top.
This is a very difficult time, and we look to the states to try to protect people. But many, many people who don’t live in states that have these kinds of protections are at risk. There are going to be mass casualties of this administration in the workplace, and how that translates to people’s rights, if they get fired, and they don’t have paychecks, and they’re out in the streets. It’s a very dangerous time.
It’s just a constant battle to keep these stories in front of the public, and to continue to point out abuses where they occur.
Debra Katz
Rios: How are you navigating the legal landscape for survivors of gender-based violence and harassment right now in your practice?
Katz: Our practice is very active, but right now, we are really trying to provide legal services to federal workers who are tremendously at risk. We have always represented federal whistleblowers. We think that people who have the courage to come forward and report issues of fraud, waste and abuse, and issues affecting public health and safety, are courageous, and they deserve the best representation that they can get.
Right now, we have tens of thousands of federal workers who devoted their lives, and their careers, to being public servants, who are just being discarded. One of the most crucial issues that’s going to be decided by the Supreme Court is whether the executive has the ability to fire workers who previously had civil service protection rights. [Note: Since this interview, the Supreme Court paused a lower court order blocking Trump’s federal firings and layoffs. This is not a final decision, but allows the Trump administration to move forward with reductions.]
Trump has taken the position that he can fire anybody, whether commissioners of agencies set up by Congress, whether inspector generals, probationary workers. He thinks he can fire anybody at will. And the question is: Will the courts hold the line, or will the courts give him that executive power that he thirsts for? And that is a very terrifying proposition. Everybody who works in this area is looking to the Supreme Court to find that President Trump cannot fire people at will, cannot remove commissioners at will for political, or retaliatory, punitive reasons—and that’s the one we’re all looking at. That will tell us a lot about whether people have any protection when they go to work for the federal government.
The fallout from that, too, is contractors, the whole world that’s relied on USAID contracts and funding—our NIH was the premier institution globally, and it’s been decimated by these reckless, and retaliatory acts.
It’s very easy to destroy things. We’re going to see if the Supreme Court is willing to put a stop to it. Thus far, they haven’t.
Rios: I think a lot of us are surprised by how easy it has been to destroy things.
Katz: It is. Think about people on the beach, little kids, they spend the whole day building little sand castles, meticulously building their little sand castles—and one wave comes in, and it’s gone.
It’s going to be really, really hard to rebuild the destruction to our democracy, and the destruction to the global environmental movement. We have one planet, and if we’re not tending to that planet, and we’re getting out of our key accords with other nations, and we’re now going to allow greenhouse gas polluters to do whatever they want—by virtue of a new executive order that says ‘coal is a beautiful, and clean energy,’—these are dangerous times, and some things we’ll be able to come back from, but other things, no.
We should be working with state legislators to pass progressive laws right now—from codifying abortion rights into law on a state basis, to lowering the standard for proof in sexual harassment cases, to increasing damages and getting rid of caps, to allowing us to go after individual harassers, to not allowing certain defenses that are just readily taking place at the federal level.
Debra Katz
Rios: Right now, it feels like the work we have to do is just maintaining ground; we just have to try to do everything we can to protect what we’ve won. What are things people could tangibly work for that would hold the line?
Katz: At the state level, there are definitely gains to be made. There are some states that are just committed to trying to fill those gaps, and we should be working with state legislators to pass progressive laws right now—from codifying abortion rights into law on a state basis, to lowering the standard for proof in sexual harassment cases, to increasing damages and getting rid of caps, to allowing us to go after individual harassers, to not allowing certain defenses that are just readily taking place at the federal level.
And then, it’s just a constant battle to keep these stories in front of the public, and to continue to point out abuses where they occur, and to really know that we sink or swim together. That these issues are all connected. We have to work in coalition. We have to be relentless. We are tired from Trump One, but that is not an excuse. Many people are far worse off than we are.
From my perspective, and from the perspective of lawyers who work at my office, we feel like we have legal training—which is such an extraordinary gift, to be able to have had that training—and we have the commitment, and we have the drive, and it’s not an excuse that we’re tired. We’re tired, but people are at risk, and we just have to be resolute, and choose our battles carefully. There will be wins, and I’m just committed to being there with those wins.
To the extent that there are people in your audience who are considering going to law school: Do it—if you’re going to become a public interest lawyer. There are plenty of corporate lawyers, we really don’t need more of you. But we really need people in our trenches who are committed to fighting, and there are great lawyers who are happy to mentor, and teach. We need people with fire in their belly, and a deep commitment to the world as we know it should be, and to one another. Go to law school, work in nonprofits when you get out, be writers, be truth tellers, be whatever your passion tells you to be—but don’t sit out. We can’t afford it.
Rios: This podcast is grounded in the last 50-plus years of Ms. In the area of violence and harassment, or just more broadly, when it comes to feminist victories—what change do you believe or hope that we’re going to see in the next 50 years?
Katz: Violence against women—and sexism, and misogyny—is deeply ingrained in our culture. And when you have the president, and those around him, who hate women or are hateful toward women, that sends a chilling message, and it infuses every aspect of public life.
We’ve got to get rid of this existential threat. We’ve got to win in the midterms. We’ve got to take back Congress. We’ve got to win and oust him, and then, it’s almost like we need a Truth in Reconciliation afterward, because we are so far from normal now, we are so extreme, and moving into the camp of deep, deep authoritarianism. What we have learned is that the institutions of democracy do not hold when you have an autocrat.
After Nixon, we put into place a number of reforms. Inspector general statutes became established—and we see that they easily got crushed. We need to put in more robust protections the minute we can retake Congress.
For now, we have to insist that our legislative representatives stop infighting, and do what we have elected them to do. They need to speak out about these abuses. They have to be Cory Booker. They have to be willing to stand, and fight, and break records of their audacity, because we are not going to get through this if Congress, which is the first branch of government, continues to be MIA.
And they have been really MIA. Not everybody, but way too many.
Great Job Carmen Rios & the Team @ Ms. Magazine Source link for sharing this story.
