Eileen Brophy

When Eileen Brophy unexpectedly inherited her late husband’s cleaning business, Brophy Services, she never expected that she would become such a powerful inspiration in her community.

“We originally thought that we were going to sell the business after Tim died. That was our original plan,” Eileen said. “But it didn’t take long to figure out that they were going to give me next to nothing for it. And I thought, what are the odds that I lose half of my accounts? It was pretty simple for me at that point.”

Though she knew that continuing Brophy Services would be in her best interests, there were even more challenges down the road. She had no experience at Brophy Services before and — more dauntingly — she had never run a business before. When asked about what was the most challenging thing she had to learn about owning a business, she had a simple answer: everything.

“I was never involved in the business,” Eileen said. “Everything was the most challenging for me because I literally had never been involved in it.”

To grow the business into the achievement that it is today, Brophy had to learn about the cleaning business from the inside out. One step at a time, she learned everything she needed to know about keeping Brophy Services afloat.

“It took me two years of working internally in the business, and by that, I did all the payroll, the invoicing, the interviewing, and the human resources side of things,” she said. “And then I spent the next two years outside the business meeting with all the clients, dealing with how do you strip and finish floors, how do you clean carpets, what are we cleaning and how do we clean it, and all that.”

Through a painful experience and an unexpected journey, Eileen Brophy became one of the most successful businesswomen in Central New York. Though a self-taught — and almost entirely self-made — business owner, she never forgot about how others played an important role on her road to success. She credits much of what she learned along the way to those who were willing to help her.

“I literally went to the Small Business Administration and said to them, ‘I don’t know how to run a business. Can somebody help me?’” Eileen said. “And they said, ‘We’re having our first ever mentor-prodigy program, and we have the perfect mentor for you.’” That’s how Eileen connected with Susan Defaria, owner of Potter Heating and Plumbing. Susan advised Eileen to join the Women’s Presidents Organization, a group of 18 other business owners.

“All women. And we literally talk about issues that are going on in our businesses and we brainstorm and talk,” Eileen said. “You have the ability to connect with other people. You network and you learn from people.”

Some of the people she networked and connected with along the way influenced her business practices and her values. On one occasion she recalled, Eileen remembered some hard advice given to her by a friend.

“I remember saying to a good friend of mine, ‘If I could just stay the size I was at that point, I would be perfectly happy. And he said to me, ‘That would be the death of you,’” she said. “He said to me, ‘You’re either green and growing or you’re ripe and dying.’ So at that particular moment, those words for me were ‘You got to keep going. You got to keep forging on.’”

Now, Brophy Services has 172 accounts and 220 employees — a growth of 350 percent. Being able to grow and forge on are lessons every entrepreneur has to learn. But some lessons came natural to Brophy. Some were so natural that they became a part of her values. Growth — for Eileen and the business she runs — is a reflection of all the hard-work it takes to lead a successful company.

“I have always been of the belief that if I work on and constantly provide the best service I can to my clients — whether that’s through my employees or us as management — that we’ll inherently be able to grow as a business,” she said. “So I’m not looking for the next big half-a-million-dollar contract. It’s just to always provide the best service I can to those who I have. That’s my vision for the future: to just continue to do what I’m doing.”

Other values — such as her commitment to her community — have made her a positive influence in the Central New York business world. Making a positive impact is one of the things she most enjoys about operating Brophy Services. She pointed to an issue she’s recently worked to address: transportation.

Brophy thought about creating her very own transportation company that would help people commute to work, but she realized that creating a whole new business meant neglecting the business she already had. She then saw an opportunity in using already existing companies like Uber and Lyft. She reached out to Onondaga County Executive Ryan McMahon about using the companies’ infrastructure to provide transportation to Brophy Services’ employees. The program launched in September of 2019. “To me [the program] is a perfect solution to a problem,” Eileen said. “It already exists. It’s a win for Uber and Lyft. It’s a win for me because I get an employee. It’s a win for the employee because they can actually get a job, start making money, and start paying taxes, which helps us all. It’s a win-win-win.”

When asked what advice she would give to entrepreneurs who were just beginning their journey, she suggested endless learning and perseverance.

“I wholeheartedly believe that I have something to learn every day. And if I stop learning, then there’s no point in owning the business anymore,” she said. “I can always grow and develop myself. I think each and every one of us is a work in progress and we have to continue to mold ourselves and be better. And we should always be better.” SWM

“I’m not looking for the next big half-a-million-dollar contract. That’s never been my thought. It’s just to always provide the best service I can to those who I have. That’s my vision for the future: to just continue to do what I’m doing.” – Eileen Brophy

What’s next for #MeToo in New York? By Sarah Ruehlen

When Time Magazine featured the “silence breakers” on its Jan. 5, 2018 cover, it wiped away any lingering excuse for anyone to ignore the true extent of the problem of workplace sexual harassment. It had been clear for years that antiquated anti-discrimination statutes were not protecting workers. The groundswell of the #MeToo movement helped move New York Legislators finally to look at what was wrong with antidiscrimination legislation and take steps to improve them.

Problems With Pre-#MeToo Legislation

Although discrimination on the basis of sex has been illegal since the Federal Civil Rights Act of 1964, sexual harassment was not recognized nationally as a form of sex discrimination until 1986, when the United Supreme Court held in Meritor Savings Bank v. Vinson that sexual harassment is prohibited under Title VII of the Civil Rights Act. The decisional law that built up around Title VII post-Meritor was at first positive, but quickly became bogged down in findings by (mostly male) judges that the offensive conduct just wasn’t that bad. If one court made a decision that a single instance of groping wasn’t “severe or pervasive” enough to change the terms and conditions of employment, the next court would build on that precedent to conclude that groping in general was not “severe or pervasive.” Over the next several decades, the right to be free from sexual harassment in the workplace was chipped away.

The Faragher/Ellerth defense, so named after two 1998 Supreme Court decisions, was another blockade. Faragher/Ellerth required that a harassee use the employer’s internal procedures to report harassment before the employer could be held liable for the harassment. Although retaliation reporting harassment was technically illegal, the reality was that employers and harassers could engage in an endless array of subtle conduct targeting the reporter, and the courts did not consider subtle conduct severe enough to warrant a finding of liability against the employer.

Most cases never made it to the courts. The majority of incidents of sexual harassment went unreported. Where a harassee had the courage to make a complaint, the complaint was often investigated superficially, and the finding was almost inevitably that the harassee was not credible, or that the harassment was somehow consensual. Repeat offenders got away with abusing multiple co-workers, time and again, particularly if the harasser was considered “valuable” to the employer or had powerful connections within the workplace. Meanwhile, the harassee was labelled as a tattletale, ostracized by her coworkers, singled out for undesirable assignments, demoted, disciplined, and terminated. No wonder no one wanted to make a complaint.

The 2018 Amendments

The 2018 amendments aimed to change workplace structure by removing some of these barricades. Notably, the amendments extended protection against sexual harassment to “non-employees,” including “contractors, vendors, consultants, [and] other person[s] providing services” in the workplace. To make it more difficult for repeat harassers to target new victims, the New York Civil Practice Law and Rules and the New York General Obligations Law were amended to prohibit nondisclosure agreements in settlements of sexual harassment cases, unless such agreements were the plaintiff’s preference. New training and policy requirements were imposed upon employers.

#MeToo 2.0 In 2019, further protections were implemented. Now, employees enjoy enhanced legislative protections against all types of illegal harassment, not just sexual harassment. The definition of an “employer,” for purposes of unlawful harassment claims, has been widened to include any entity that employs one or more employees. Likewise, employers are prohibited from subjecting “any individual” to illegal harassment—a boon to gig workers and consultants. The statute of limitations for filing a harassment claim in the Division of Human Rights has increased from one to three years.

For New York employees, the elimination of the Faragher/Ellerth defense removes the intimidating requirement that an employee report harassment to potentially hostile superiors. Moreover, the 2019 amendments have changed the harsh “severe and pervasive” standard to an easier requirement that the harassment subjects the individual to “inferior terms and conditions.”

Conclusion It’s too early to tell if these amendments will result in the workplace becoming a friendlier place for women. Nevertheless, it is harder for employers to sweep workplace harassment under the rug in a post-#MeToo New York. SWM

Sarah E. Ruhlen is a member of the Satter Ruhlen Law Firm in Syracuse, New York. She currently serves as co-chair of the EEO Committee of the NYSBA Labor and Employment Law Section; additionally she is a member of the AFL-CIO Lawyers Coordinating Committee, the National Employment Lawyers’ Association, the Onondaga County Bar Association, and the New York State Women’s Bar Association, Central New York chapter.

Ms. Ruhlen represents employees in race, sex, religion, national origin, color, age, disability, sexual orientation, TGNC, and other discrimination claims, as well as wage and hour, family leave, severance, non-competes, and other employment matters. She works with private and public sector unions in the healthcare, public safety, education, transportation, and other industries.

This article is for informational and educational purposes only. It does not constitute legal advice, and is not intended to create an attorney-client relationship. Further, your use of this article does not create an attorney-client relationship. Readers should not act upon any information presented in this article without seeking professional legal counsel. The legal information provided in this article is general and should not be relied on as legal advice, which cannot be provided without full consideration of all relevant information relating to one’s individual situation. 477 U.S. 57 (1986). Faragher v. City of Boca Raton¸ 524 U.S. 775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). NYSHRL ¶296-d. The CPLR was also amended to prohibit mandatory arbitration clauses, but it is unclear at this point whether that prohibition has been preempted by Federal Law. In New York, that means protections from harassment based on nearly 20 characteristics, including race, religion, prior criminal convictions, marital status, gender identity, and sexual orientation. This article is for informational and educational purposes only. It does not constitute legal advice, and is not intended to create an attorney-client relationship. Further, your use of this article does not create an attorney-client relationship. Readers should not act upon any information presented in this article without seeking professional legal counsel. The legal information provided in this article is general and should not be relied on as legal advice, which cannot be provided without full consideration of all relevant information relating to one’s individual situation. NYSHRL §292(5).Previously, to be subject to non-sexual harassment anti-discrimination laws, an employer had to employ at least four employees. NYSHRL §296(1)(h). NYSHRL §297(5). NYSHRL §296(1)(h).Notwithstanding, it is imperative that a harassee consult with an attorney to determine whether to use internal procedures. NYSHRL 296(1)(h). See, e.g., Oncale v. Sundowner Offshore Services, 523 U.S. 73 (1998). New York State Human Rights Law generally tracked the same analysis as Title VII in sexual harassment cases.

While there is no substitute for consulting with an attorney, these are some steps that any employee can take to protect herself from illegal workplace harassment:

• Email is a good record keeper. If an employee emails a description offensive conduct to herself (using her personal, not work, email account) as soon as possible after the conduct occurs, the email is a date-stamped, timestamped record of her perceptions. It is important to be as precise as possible, including names, witnesses, location, time, precisely what was said or done, and any other relevant details. • Learn to recognize the difference between illegal harassment and “legal” harassment. The Supreme Court has stated repeatedly that anti-discrimination statutes are “not a general civility code for the American workplace.” There are always jerks in the workplace, but not every instance of nasty behavior is illegal harassment. • Be careful with cell phones. Pictures and recordings can be helpful, but many recordings are unusable or damaging because they record the employer’s proprietary or confidential information, or because they also record the complainant’s own bad behavior. Be especially careful about taking pictures of documents in the workplace—an employer may be able to counter-sue an employee who discloses proprietary or confidential information. • People who seemed to be allies may suddenly clam up in the workplace. They may have been ordered to do so. When an employer receives a harassment complaint, whether the complaint is filed internally or with the New York State Division of Human Rights or the EEOC, the employer will often try to minimize its exposure by prohibiting employees from communicating with the complainant. This makes the complainant feel even more isolated and targeted, and there may be little she or an attorney can do about it. • Don’t delay consulting with a local attorney. Although the statute of limitations has been extended under the New York State Human Rights Law, an employee who “sits on her rights” has a harder time pursuing a claim than one who acts promptly. Moreover, there may be local laws that provide more specific protections than the New York State Human Rights Law, and the specifics of a case will dictate what legal strategy to pursue. It is worth the cost of a consultation with an employment law attorney in the employee’s jurisdiction to determine whether workplace conduct is illegal, and if so, what to do about it.