Consent law; contracts; employment discrimination; family law, including marriage, divorce, same-sex marriage and constitutional rights re families; LGBTQI rights/issues, including religious freedom conflicts; religion and law, including Religious Freedom Restoration Act and discrimination based on religion; sexual harassment law, including sex-based discrimination, sexual assault, bullying, Title VII and Title IX issues; sexual orientation law
Jennifer A. Drobac is the Samuel R. Rosen Professor of Law at the Indiana University Robert H. McKinney School of Law. She teaches contracts and sales, family law, juvenile law, sexual harassment law, and other courses. She holds her doctoral (J.S.D.) and J.D. degrees from Stanford Law School.
In 2005, Drobac finished her first textbook, "Sexual Harassment Law: History, Cases and Theory." A second edition is anticipated for publication in 2019. She published a second book in 2016, "Sexual Exploitation of Teenagers: Adolescent Development, Discrimination and Consent Law."
[The following text appears on screen: "What are some of your key accomplishments in sexual harassment law?"]
[Video: A woman appears on screen with the following text: "Jennifer Drobac, Professor of Law at IU Robert H. McKinney School of Law"
[Drobac speaks: "I've written the only textbook on the topic. I've published numerous articles on the subject of sexual harassment law. I've given over 100 interviews in the last year and a half on the topic.
"Sexual harassment law is very misunderstood. And right now we've got some key issues which have percolated to the top and are getting a lot of discussion right now. The first is with hashtag MeToo, just how pervasive and how deep the problem goes. So it's in every area of employment, it's in schools, it's in the military, it's in prisons. You name it, you're going to find an abuse of power there, which translates often into sexual harassment.
"Another topic which is really big and important right now is the fact that employers and others are requesting that any settlement of a sexual harassment problem be confidential -- because they don't want the word to get out that they had a problem that they had to settle -- which means that what we're learning about sexual harassment isn't being disseminated. It means that people are remaining quiet about the problem, and it means that some perpetrators can continue to operate unchecked, basically. So that's why you get someone like Roger Ailes or Harvey Weinstein engaging in this kind of behavior for years: because their companies insisted that the settlements remain confidential. So confidentiality -- also known as gag orders -- are really a hot-topic item.
"Another hot topic is mandatory arbitration provisions in contracts or in any kind of an employment agreement where you, the employee, are basically agreeing to give up your court rights and go into automatic arbitration if there's a problem. And that puts the employee at a significant disadvantage, because none of the regular rules of evidence apply. And you may not have a regular judge deciding the case. You may have an arbitration panel or an arbitrator, who is paid by the employer, so there tends to be an unconscious bias in favor of the employer. So these mandatory arbitration provisions, which have been upheld, are problematic. And people are basically forced to give away their civil rights in order to get a job."]
[The following text appears on screen: "Are we seeing any meaningful policy changes yet in this area?"]
[Drobac speaks: "You're seeing policy changes in this area slowly but surely. I think one of them is with the confidentiality provisions. They’re discussing, for example -- and states are doing this too -- whether or not you should be able to get tax advantages if you insist on a confidentiality clause. And so Congress has now changed the law regarding that, and that's a new development.
"You also have a bill that's been introduced into Congress by predominantly new women in the House of Representatives, but it's also been joined by feminist men, who are trying to extend statute-of-limitations periods to allow more time for someone to sue. They are addressing these mandatory arbitration provisions, and they're making some changes in the law which pertain to tipped wage workers, because they face a lot of sexual harassment. They, basically, some clients and customers expect someone who works for tips to be quote-unquote nice or friendly in order to get a tip. And that's a euphemism for being sexually available."]
[The following text appears on screen: "How can employers do a better job of preventing and policing sexual harassment in the workplace?"]
[Drobac speaks: "It's a great question to ask and to explore how employers and school districts and the military can do a better job of preventing this problem and eradicating it when it comes up. It's not really if, it's when.
"First of all, a lot people try and hide the problem through confidentiality clauses, or by denying that it exists. And that sets up a real adversarial scenario where not only is the target of the harassment trying to accuse and deal with the alleged perpetrator, but it typically it's she, she is also typically trying to deal with the employer in kind of an adversarial way. The problem there is that it's not a collaborative approach to a serious problem. I shouldn't have to argue with my doctor about whether I have a tumor. And similarly, if we viewed sexual harassment as a case of embezzlement, you would think that any employer would want to find an embezzler and get rid of that person immediately.
"So I suggest that people look at sexual harassment the way they look at embezzlement, whoever executive, CEO, and it's often a CEO, president of a company, that person is stealing corporate assets. It may be a human asset, but that person is taking something that doesn't belong to them -- the body and psyche and person of a human asset to the corporation, and so that person I consider to be an embezzler.
"No corporation wants to aid and abet harassment. And so the idea is if they stop hiding harassment, if they deal with it at the front end, they announce 'we have a problem, we're dealing with it immediately,' that instills confidence in employees, in the public. And then they believe that a corporation or a company or a school will take any complaint seriously and actually do something about it. And by talking about it more, by acting proactively, then companies can better deal with the problem."]