What to Do About Sexual Assault Between Vendors

What to Do About Sexual A…

From the outside, the wine industry may seem to be dominated by rich, older men with class and good taste. On the inside, though, many women experience sexual aggression powered by free-flowing alcohol in a heavily male-dominated industry. But getting relief from sexual assault and harassment within this sales-based industry can be hard. It raises the question of what to do about sexual assault between vendors.

Employees and Vendors Call Out Famous Sommelier for Sexual Assault

The New York Times has published a report naming Anthony Cailan as a part of the #MeToo problem. Cailan is a 29-year-old wine celebrity who worked in influential Los Angeles restaurants like Bestia, Animal and Eggslut before moving to New York to help launch the Usual. He has been featured on the cover of Wine & Spirits Magazine as one of the “BEST NEW SOMMS” and has regularly received glowing media attention nationwide.

But behind the scenes, Cailan’s reputation is not nearly so bright. He has been a frequent subject of reports of sexual assault and harassment. In January, five former co-workers, including his former boss, Jill Bernheimer of Domaine LA, sent him an email telling him to stay away from their restaurants and workplaces. Now four more employees and vendors have taken their complaints public, talking to the New York Times about their experiences.

Raquel Makler says she planned to follow Cailan from a Los Angeles wine bar to New York when he offered her a job at the Usual. When she was in town in June 2018 looking for an apartment, Makler alleges that Cailan texted her telling her he was too intoxicated to sleep and asking her to keep him company at his apartment. When she got there, she alleges he tried to give her wine and cocaine, kissed her and asked for sex. She reports saying no, reminding him he was her boss, but according to the New York Times, his answer was “We can just forget about that”. The report claims that the situation escalated to full sexual assault as Cailan is reported to have pushed his penis into her mouth and attempted to have sex with her before assaulting her with his hand instead. Makler said she was too shocked to physically resist, but she did begin looking for a new job right away.

One year later, Cailan is said to have sent a similar text to Sarah Fernandez, a sales representative for a wine company. She told the Times she had been trying to get Cailan to taste the wines she was selling, so she saw the late-night text as a business opportunity. She claims that she met Cailan at the bar Atoboy, before the two moved back to his apartment. But when she got there, she could tell immediately that he wasn’t interested in wine. Fernandez told the Times:

“‘I want to be clear: I am a grown woman who was consenting to make out with him, consenting to go to his apartment, consenting to sit with his arm around me,’ Ms. Fernandez said. But, she said, she strongly resisted what happened next. ‘He kept putting his hands on my thighs, he kept trying to get into my underwear. He would not take no for an answer.’”

Fernandez and Makler were both afraid of making an enemy of the famous and influential somm by coming forward about what happened. However, they each told coworkers about their stories shortly after they happened, and eventually their stories joined with others to show a pattern of sexual assault and harassment.

Vendors Face Special Challenges Raising Sexual Harassment Claims

Employees like Ms. Makler have a straightforward process to raise sexual assault and harassment claims against their supervisors or employers. Most larger companies have internal HR complaint processes. If those fail, you work for a smaller company, or your complaint is against the owner themselves, you can also file complaints with the federal Equal Employment Opportunity Commission, the New York Human Rights Division, or in state or federal court.

But what Cailan’s case shows is that sexual assault doesn’t stay within the lines of a single corporate structure. The somm was known as an expert networker in an industry that thrives on interactions between wine manufacturers, distributors, and the restaurants themselves. As a sales representative for a vendor, Ms. Fernandez alleges she was exposed to all the same sexual assault and harassment as Cailan’s employees, but Title VII of the federal Civil Rights Act only applies to employees and employers. Vendors, sales representatives, and even independent contractors often have their complaints denied because they don’t fit within the definition of an employee.

New York State Human Rights Law Protects Vendors Against Sexual Assault

More recently, the New York state legislature saw the problem with the gaps left open by the federal law. Since April 12, 2018, the New York State Human Rights Law has been expanded to cover nearly any case of sexual assault or harassment in a professional business setting. Employers are now required to respond to complaints raised by their employers, independent contractors, subcontractors, vendors, consultants, and even service technicians -- basically anyone doing work on their job sites.

The New York State Human Rights Law goes much further to protect residents facing sexual assault and harassment whereever they work. But that doesn’t mean it will cover every situation. Ms. Ferndandez, for example, could still face challenges since her sales call happened at a bar and then Cailan’s apartment, rather than at his restaurant. Regardless of where the conduct happened, Ms. Fernandez may still be able to pursue criminal charges against him for sexual assault, but on the civil side, it will be up to her employment discrimination attorney to make the case that Cailan’s sexual misconduct fits within the state law’s definition of sexual harassment in the workplace.

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have seen all kinds of employment arrangements. We know how to make the New York State Human Rights Law work for vendors, sales representatives, and other traveling professionals. Contact us to schedule a consultation at our office in New York City, or over the phone.

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