In the summer of 2010, two male members of the New York Philharmonic (NYP) orchestra, Liang Wang and Matthew Muckey, were accused of sexually assaulting Cara Kizer, a fellow musician, after attending a social gathering at an apartment rented by a fellow orchestra member. Ms. Kizer woke up the next morning next to Muckey, ill and unable to remember what happened the night before. Muckey’s DNA would later be matched to evidence from Ms. Kizer’s body.
What happened next is a reminder of why so few people report sexual assault, especially in the workplace. Ms. Kizer informed the orchestra, which declined to discipline the men. Eventually there was an arbitration hearing and the arbitrator did not find the men responsible. As a result, the men are still employed with the orchestra, whereas Ms. Kizer is gone.
This grim employment saga serves as a reminder that there are often lesser-known paths of legal recourse for sexual assault, such as particular state laws. It also brings to mind the importance of timeliness in reporting sexual assault and in responding to such a report.
What Happened at the New York Philharmonic?
Ms. Kizer reported the incident to the NYP’s personnel manager, filed a report with the local police department, and subsequently obtained an order of protection from the Colorado courts (the incident occurred in Colorado during a NYP residency there). Despite Ms. Kizer’s reports and the court order, the NYP initially allowed the two men to continue their employment and took no disciplinary action against them. The local district attorney’s office ultimately declined to criminally prosecute the musicians for sexual assault, claiming there was not enough evidence to proceed.
Another female musician who was supporting Ms. Kizer claims she was blocked from tenure as a result of her support. As for Ms. Kizer, the terms of her departure from the orchestra in 2012 appear to be subject to a non-disclosure agreement, although her tenure was likely hindered by her report of assault, according to people familiar with the situation.
Several years later, after the #MeToo movement turned its focus to the Harvey Weinstein sexual abuse scandal, the NYP engaged external workplace investigators to review the allegations against Muckey, which included interviewing 22 individuals and reviewing “extensive documentary evidence.” NYP’s investigation concluded that Muckey and Wang had “engaged in misconduct warranting their termination” and fired them in September 2018.
The two men challenged their firings through their union, which kept them employed until their grievances were resolved. An independent arbitrator used the highest evidentiary standard, “clear and convincing,” to analyze whether they were properly fired. That was a higher standard than used in the NYP’s investigation, which employed the “preponderance of evidence” threshold. In April 2020, the arbitrator ruled in favor of Muckey and Wang, citing the difficulty of demonstrating assault charges and the fact that the “events at issue occurred some 8, 10 and 12 years prior” and the “potential degradation of corroborative evidence over time.”
Although NYP opposed the arbitrator’s decision, the two men were reinstated to their positions in the orchestra a short time later. In 2020, the NYP and the union reached a new collective-bargaining agreement that mandated a “preponderance of evidence” standard in all future arbitrations.
Lesser-Known Laws Can Be of Help
While victims of sexual assault in the workplace can press for criminal charges to be brought against their aggressor, doing so is not the sole path of recourse; there are civil law remedies as well. Some states have statutes that can be particularly helpful in these circumstances.
In Illinois, for example, a plaintiff can bring a cause of action for “gender-related violence” under the state’s Gender Violence Act (IL GVA) if the aggressor engaged in an “act of violence or physical aggression” that constitutes battery and was carried out on the basis of sex. Under Illinois law, battery means causing bodily harm to or making physical contact with someone else in an insulting or provoking way that is intentional and done without otherwise legal justification.
A claim can also be brought under the IL GVA if there was a coerced “physical intrusion or physical invasion of a sexual nature” that constitutes battery. At times, a simple threat of one of these two actions can serve as the basis for a claim under the law.
It is important to note that penetration is not required for a claim under the Illinois Gender Violence Act. Battery could include any harmful or provocative contact to one’s body. Our attorneys have brought claims under this act for violations running the gamut from anal rape to offensive physical contact that took place over one’s clothing.
Timely Complaints and Responses Are Crucial
Under the IL GVA, individuals who were subject to sexual assault have 7 years to take action. The IL GVA included this long timeline because legislators recognized that individuals who are assaulted often have trauma associated with the assault and it can take time to work through that and come to a place where one can complain. Other laws, such as Title VII, provide less time to complain: it allows only 300 days to file a charge.
Regardless of how much time laws provide for taking action based on a sexual assault or sexual harassment complaint, complaints made soon after the event often benefit the victim or plaintiff because (1) memories are clearer, (2) witnesses, if any, are more likely to be available, (3) corroborating footage is more likely to be available, and (4) fact-finders, such as investigators or jurors, find timely complaints to be more persuasive and take them more seriously.
Equally important to a timely complaint is a timely response. In the employment context, an employer risks significant liability if it does not investigate and, if warranted, take swift remedial action, once it is aware of a sexual assault allegation. Note the term “aware.” An employer is deemed to have “notice” if it is aware of allegations. This could be from witnessing something, hearing something second-hand in a casual context, or someone telling a member of leadership. Notice (and therefore increased risk of liability) can attach even if the communication is not made to HR, is not made in writing, and does not include triggering words, such as “assault,” “rape,” “harassment,” or “complaint.”
In addition to a timely investigation, preservation of evidence is also key. An employer can be punished if evidence is not preserved and the evidence should have been (the legal term is “spoliation”).
Lessons Learned
Keeping in mind the many barriers to reporting a sexual assault, victims should do their best to report an assault as soon as possible. They, and especially attorneys who represent them, should be aware of all possible legal pathways, including laws like Illinois’ Gender Violence Act.
Employers, for their part, should do their utmost to respond to a report of assault with compassion, thoroughness, and speed. Doing so can help protect it against future liability, but more importantly, it’s the right thing to do and demonstrates care for vulnerable workers.
A workplace can also consider conducting a top-to-bottom culture audit in the wake of an accusation, as the NYP eventually did. Culture audits can also be conducted in the absence of any report of wrongdoing; they are good preventative measures to catch culture issues and possible liability long before it rises to the level of a legal claim, and are recommended by the EEOC. Just as with responding to a complaint, conducting a culture audit demonstrates genuine concern for the wellbeing of the workforce and an attempt to make work better for all stakeholders.