In August 2018, 10 months after actor Alyssa Milano ignited the #MeToo movement by urging women to tweet about being sexually harassed or assaulted, a district court judge urged lawyers in Wake County to confront sexism in their profession.
Judge Ashleigh Parker Dunston collected stories from women for a post on the website of the Wake County Bar Association. Alongside anecdotes of condescension and inappropriate comments, one story stood out:
“While at a firm retreat, a male associate groped my private parts without my consent. When I later confronted him, he claimed to be drunk. It caused me significant pain because I felt like, as an attorney, how could I advocate for anyone when I couldn’t advocate for myself?”
A few details were obscured to protect the writer’s identity. The incident didn’t take place at a retreat but rather at a conference outside Wake County. And the writer didn’t work for a law firm. She was a Wake County assistant district attorney.
So was her alleged assailant.
In the months that followed, the woman told The Assembly in an email, she grew “despondent and withdrawn” and had difficulty managing her caseload of “exclusively violent and traumatic crimes.” On the advice of a Raleigh detective, she disclosed the alleged sexual battery to her boss, District Attorney Lorrin Freeman, in early 2016.
In a March 3 profile in The Assembly, Freeman said she took no action because she didn’t believe the woman wanted her to: “If I believed that she was coming to me wanting me to investigate it or take some action about it, obviously, I believe I would have done that.”
The district attorney said then that the alleged assault happened before she took office. Since publication, however, the woman has told The Assembly that it occurred in October 2015, 10 months after Freeman was sworn in. Two additional sources who learned contemporaneously of the alleged assault confirmed the former prosecutor’s timeline.
When asked about the apparent discrepancy on March 4, Freeman said, “My recollection of what I was told was what I told you. I may have gotten the impression that it predated my taking office. That certainly has been my impression.”
The woman eventually left the district attorney’s office, as did her alleged assailant.
Freeman, who is seeking her third term as arguably the most powerful district attorney in North Carolina, faces criminal defense attorney Damon Chetson in the May 17 Democratic primary.
In an interview, she pointed out that the woman has supported her politically. If she was upset, Freeman said, “I don’t see how she would continue to be an ardent supporter of mine.”
But under federal civil rights law, what Freeman thought the woman wanted was irrelevant, five experts on employment law told The Assembly. While Freeman might not have needed to act as a prosecutor, she did need to take action as a manager, they said.
“An employer is required to take action in investigating a harassment complaint even if the person who reported it does not want an investigation to happen or have any action taken,” former Georgetown University law professor Chai Feldblum wrote in an email. From 2010 to 2019, Feldblum was a member of the U.S. Equal Employment Opportunity Commission (EEOC), which enforces federal antidiscrimination laws.
It’s not just about responding to the concerns of one person, said John Clune, a Colorado attorney who specializes in sexual harassment and assault litigation. By not acting, he said, “you may be subjecting other employees in your office to similar behavior.”
Freeman declined to respond to the experts’ comments.
According to an EEOC report Feldblum co-authored in 2016, “Workplace culture has the greatest impact on allowing harassment to flourish, or conversely, in preventing harassment.”
The culture in Freeman’s office has already become a campaign issue. As The Assembly previously reported, she had no policy forbidding sexual relationships between supervisors and subordinates until last November, when sources say Freeman learned of a romantic relationship between her then-second-in-command and a prosecutor he oversaw.
The former assistant district attorney who said she was assaulted asked not to be named in this article. As a policy, The Assembly does not name people who say they were the victims of sexual misconduct, unless they give their permission.
In her email to The Assembly—on which she copied Freeman—the woman declined to criticize her former boss, saying she does not want to participate in “anyone’s smear campaign.”
“It is not my place to question personnel decisions, and I decline to do so,” she wrote. “That is for the voters of Wake County.”
Because the alleged assault took place outside of Wake County, Freeman did not have criminal jurisdiction. And the woman told The Assembly that at the time, she did not have the “emotional capacity” to file charges against her alleged assailant, whom she had previously considered a work friend.
“[He] had a lot of social and professional influence, and I was afraid that I would be isolated socially and professionally by my peers,” she wrote. “I desperately needed my job, and I could not risk professional exclusion. The legal community is small. As someone who advocated for victims, I knew how difficult it would be if I drew attention to myself by filing charges.”
While the woman told a few close friends and family members that she’d been assaulted, she initially did not inform anyone at the district attorney’s office. (In addition to the two sources who said the woman told them about the alleged assault, The Assembly has obtained emails from 2017 in which the woman discussed the incident.) Over time, though, she said the secrecy wore on her mental health, which affected her job performance.
“I felt like a failure as a lawyer,” she wrote, “because I didn’t understand how I could possibly advocate for other women when I could not advocate for myself.”
Instead of filing charges, the woman wrote, “I informed Ms. Freeman the assault occurred in 2015 while she was in office.”
Though that contradicts what Freeman told The Assembly previously, the woman said she doesn’t think Freeman lied but rather “may not have recalled when the incident occurred.” She said that in her experience, Freeman is “always truthful and has a reputation for honesty.”
She also said Freeman did not ask her for evidence of the alleged assault.
“I believe she believed me because Ms. Freeman said that she hoped the perpetrator would end this type of conduct due to his status as a new father,” she wrote.
The woman said she disclosed the battery to Freeman because her alleged assailant—whom the email does not name—aspired to become a judge, and she believed Freeman would use her influence to prevent him from obtaining a judicial appointment “due to her steadfast commitment to protecting female victims of crime.”
“This belief contributes to the reasons I have supported Ms. Freeman since I left her office,” she wrote.
Five employment lawyers contacted for this article agreed that employers have a legal obligation to investigate allegations of sexual harassment or assault. A sixth disputed the term “legal obligation” but said that failing to follow up on a claim exposes an employer to potential liability. (The Assembly described the situation but did not disclose the specific office involved before seeking their opinion.)
According to Laura Noble, an employment attorney in Chapel Hill, if an employer’s investigation shows that the alleged misconduct likely happened, they should “take whatever corrective actions they need to take in order to repair the damage.”
“What that usually means is a combination of firing the individual who is found to be engaging in sexual harassment and then affording the victim whatever remedies she would like, such as moving to a different department or maybe taking paid leave or getting some counseling,” Noble said.
An employer’s responsibility to act exists to ensure a safe workplace not just for the victim, but also for other employees who might be harassed or assaulted, said Charlotte employment attorney Margaret Behringer Maloney.
In 2018—two years after the former prosecutor discussed the alleged assault with Freeman—the North Carolina Office of State Human Resources issued guidelines instructing state government supervisors that, upon learning of a harassment allegation, they should consult with a human resources representative, investigate, take action, and prevent retaliation.
“How you handle the complaint has a major effect upon how the organization’s policies on harassment are viewed and accepted by the employees,” the guidelines said.
A spokesperson for the human resources office was unaware of similar guidelines published before Roy Cooper became governor in 2017 but pointed out that agency managers and supervisors have long been required to undergo harassment prevention training and “harassment has been an illegal workplace practice long before 2016.”
Though district attorney’s office staff are state employees, they are not covered by the human resources office’s policies.
Freeman told The Assembly that if she thought the woman wanted an investigation, her disclosure “would have been handled differently.”
As district attorney, Freeman has taken a hard line against one person who allegedly failed to report a sexual offender.
In 2018, she filed felony aiding and abetting charges against Nancy Errichetti, the then-leader of the Montessori School of Raleigh, for not responding to warnings about a middle school teacher who later pleaded guilty to sexually assaulting two students. At the time, experts said that the felony charges were likely unprecedented in the United States. (Errichetti’s case is still pending.)
The situations have significant differences: The Errichetti case involves a crime against children, while the report Freeman received came from an adult who did not wish to press charges. Even so, while Freeman faulted another organization’s leader for not rooting out a predator, she appears not to have pursued an alleged assailant in her own ranks.
After reviewing the woman’s email to The Assembly, Freeman said last week that it was inappropriate to discuss the matter further.
“The fact that this is even written about, I think that’s very unfortunate,” she had previously told The Assembly. “Frankly, some of the people I know you’ve been talking to have worked in those arenas, and they know it’s a highly sensitive area, and the fact that they are using it as some kind of political weapon is shocking.”
The Assembly did not learn the woman’s identity or details of her story from anyone affiliated with Damon Chetson’s campaign.
Freeman, 50, says women have made a lot of progress in the legal profession since she became a lawyer a quarter century ago.
“There’s no question that things that 10 years ago may have been permissible in a workplace or seem to be just the way things are or men being men—that has changed,” Freeman said. “I’m fortunate to be part of a profession where, overwhelmingly, at least in Wake County, people try to be sensitive to and not perpetuate situations that might make women feel uncomfortable.”
But a generation after Anita Hill’s 1991 accusations against Clarence Thomas elevated sexual harassment into a national conversation, surveys show that most victims still choose not to report workplace sexual misconduct to the police or their employer.
This is especially true in the legal profession, where 86 percent of incidents go unreported, according to a 2020 report by the nonprofit Women Lawyers on Guard (WLG).
Often—as with the former Wake County prosecutor—women fear they’ll be ostracized by coworkers and their careers could suffer while perpetrators avoid consequences.
“The impact on those harassed … appears to be much more consequential, profound, and debilitating than the consequences to the harassers,” the WLG report said.
It added: “The system of addressing sexual harassment in the legal profession is still broken and the goal of utilizing the full talents of everyone in the profession, particularly of women, will not be met until these flaws are acknowledged, understood and effectively addressed.”
In her post on the Wake County Bar Association’s website, Judge Dunston relayed a similar message, imploring Wake County lawyers to confront sexism, which she called “the elephant in the courtroom, boardroom, and breakroom that is negatively affecting your colleagues every day.”
Clune, the Colorado lawyer, has represented women who said they were sexually assaulted by high-profile athletes and other public figures, including Brett Kavanaugh. Even after the emergence of the #MeToo movement, Clune said, workplaces often don’t take sexual misconduct seriously.
“What happens all the time is employers would rather bury their head in the sand than actually respond to [misconduct],” he told The Assembly. “The employer does nothing about it, and the employee ends up suffering the brunt of it.”
Jeffrey Billman reports on politics and the law for The Assembly. Email him at jeffrey@theassemblync.com.
Correction: The original version of this article incorrectly implied that because they are state employees, district attorney’s office staff are covered by the Office of State Human Resources. The article has been changed to specify that judicial branch employees are not covered by OSHR policies.