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The crusader Smith, tabbed for Carlson case, has a history of fighting for women’s rights

Nancy Erika Smith, partner, Smith Mullin.

Shortly after agreeing to co-counsel the high-profile sexual harassment suit filed by former Fox News anchor Gretchen Carlson, Nancy Erika Smith warned both her new client and her staff at her small Montclair-based firm: Get ready for attention.

And it won’t be good.

Smith, a longtime leader in employment law in New Jersey, thought she would be in the middle of a crossfire — from both the team representing Roger Ailes, the former head of Fox News, and the segment of society that lives online.

Much to her surprise, she was wrong.

“I would say way less than 20 percent of (social media and mail) has been negative,” Smith said.

In fact, she is encouraged by the influx of positivity and support both her firm, Smith Mullin, and Carlson have received from both genders.

“Watching the social media in this case” — including Carlson’s own campaign, #StandWithGretchen — “has given me hope for both women and men going forward.”

While high-profile cases help move the public dialogue on important issues, Smith said, firms must know what they are getting themselves into.

“You can’t be thin-skinned,” she said. “You will be attacked.”

The suit, which was filed in the Superior Court of New Jersey Law Division in Hackensack on July 6, may be nearing a conclusion, as the parties are in settlement talks.

Whether an agreement is reached or it goes to trial, it already has succeeded in drawing plenty of positive attention to sexual harassment in the modern workplace.

It has done the same for Smith Mullin, a firm that has quietly spent decades fighting for social change through law.

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Let’s start with the suit.

Carlson was let go from Fox News on June 23.

The network said it was a result of poor ratings on her afternoon show, “The Real Story with Gretchen Carlson.”

But the anchor, a 1990 Stanford University graduate and the winner of the 1989 Miss America pageant, said she felt her contract wasn’t renewed because she continued to refuse the sexual advances of Ailes.

Carlson, who was a co-host of the morning show “Fox & Friends” from 2006 to 2013 before moving to a less popular afternoon time slot for her show, had worked at the network for 11 years.

An internal investigation into Ailes’ behavior authorized by Fox News seemingly has since turned up similar accusations and evidence.

Ailes, credited for making Fox News the most-watched cable network, had been with the network since its inception in 1996. He resigned his positions as chairman and CEO of Fox News Channel and Fox Business Network and chairman of Fox Television Stations on July 21, though he will remain with 21st Century Fox until 2018 as a consultant.

Ailes, who reportedly received a severance of nearly $40 million, is fighting the allegations by Carlson.

Smith is eager to battle. To her, this is about more than one incident. It’s “taking women and their male supporters in the workplace out of the shadows,” she said, casting Carlson’s case as a fight for her and other women’s rights in the workplace.

“Other women are (now) willing to say, ‘I don’t care if I have a nondisclosure agreement — I’m speaking out,’” Smith said. “It’s giving women a voice back, a voice that corporate confidentiality and secrecy and arbitration agreements have taken away.”

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Smith isn’t a regular on the talk shows. She doesn’t chase after high-profile cases simply in an effort to raise her own profile. No one confuses her with Gloria Allred.

Here’s what she is: One of the region’s top lawyers.

Almost since the day she co-founded Smith Mullin with her husband, Neil Mullin, in 1986, Smith has earned accolades.

Since its founding, and every year thereafter, Smith and the firm have earned recognition in Best Lawyers, Super Lawyers and U.S. News & World Report, consistently ranking as one of the best in New Jersey.

Training companies
Every so often, Nancy Erika Smith said she is asked to come in and train companies that she has settled with regarding harassment and discrimination in the workplace.
“Occasionally, you get companies who truly recognize that they are losing good employees and keeping bad ones,” Smith said. “If you’ve got somebody spending time harassing coworkers, they are not being very productive and they are interfering with (others’) productivity. It doesn’t make business sense.”
In particular, she said that she conducts a lot of seminars with lawyers in-house, especially now that some companies have taken to creating rules against affinity groups.
“There has to be zero tolerance and there has to be an open way for people to talk,” Smith said. “(Affinity groups) can help women feel empowered to come forward and speak to one another.”

She says the success of the firm, which has fewer than a dozen employees but regularly wins multiple multimillion-dollar verdicts and settlements, speaks for itself.

Her peers agree, including those who are her occasional adversaries.

“Nancy and her husband Neil have often been on the cutting edge of (employment) law,” said Ralph Lamparello, managing partner of Chasan Leyner & Lamparello in Secaucus and past president of the New Jersey State Bar Association. He cited Smith Mullin cases against major corporations such as Panasonic Corp. of North America and IBM.

“There is no one smarter, more knowledgeable of the law or more determined, dogged and dedicated to the best interest of their clients,” Lamparello said. “She has a sense of fairness that makes her one of the most preeminent lawyers that exist in the state.”

Smith feels her success, and her relationships with other lawyers, is how she landed Carlson’s case. She has always believed in helping her peers and adversaries, noting, “I don’t (always) need to be in a case to help (other lawyers) think through something,” she said.

That is how she built her relationship with co-counsel Martin Hyman, a defense lawyer with Golenbock Eiseman Assor Bell & Peskoe in New York City, against whom she had squared off in the past.

“He knew of what I do and my reputation,” Smith said. “After that case, occasionally he would call me up and ask what I thought of this or that.

“When Gretchen went to him in New York, he immediately called me and said, ‘Let’s do a case together.’”

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Smith didn’t immediately jump on Carlson’s case. She said she first needed to make sure Carlson — and her case — met her criteria for new business.

“If I don’t like someone, there is a really good chance that a jury will not like them, no matter how good their case,” she said. “I don’t take on (clients) who aren’t nice and I fire people who treat my staff badly.

“I also have to really think that we can win. Not just, ‘let’s try it,’ or, ‘maybe’ — it’s too stressful on a client and too risky for me. I really have to visualize a jury coming in and saying, “yes, this is (in retaliation for) whistle-blowing or discrimination.’ I have to see it all the way through.

“Sometimes it’s really sad, because terrible things happen to people, but I don’t really see the proof or it doesn’t fit into the law or it’s not an area of the law that we have a right to expand upon because it’s clearly been ruled on.”

Carlson’s case, she said, wasn’t like that.

A formative case
Nancy Erika Smith feels sexual discrimination issues usually go in one direction.
“There is very little sex discrimination against males,” said Smith, partner with Smith Mullin in Montclair. “We live in a male-dominated society in which all of us are affected by our culture — and our culture values males.”
But, she said, that doesn’t mean men don’t face workplace issues involving sex.
In fact, it was such a case that got her started in this field.
Smith, a 1977 graduate of Montclair State University who earned her law degree at Rutgers School of Law-Newark, joined a traditional union law firm, Ball, Hayden, Kiernan & Livingston, to pursue her interest in what was then fledgling employment law.
“My first consultation right out of law school was with Jon Slohoda, who had been fired by United Parcel Service because he had been dating a coworker whom he did not supervise while his divorce was pending,” she said. “And I thought, that seems like marital status discrimination.
“We lost on summary judgment (in 1984), but won the appeal (in 1986).”  
It wasn’t the only part of the case that made her realize just how prevalent gender bias was in the workplace.
“One of my partners at the time wanted to meet with (Slohoda) to tell him that they thought I was crazy because no judge was going to side with an adulterer,” she said. “He was paying us, so it was a crazy business decision to discourage him.
“Slohoda just said, ‘I’m going with her.’ And we did it. We won the case and established the right to privacy for employees.”
Determined to never be undermined again, Smith and Neil Mullin formed their firm after the case.
“I didn’t want to be bound by their conservatism and I believed that we could help further develop a worker-friendly area of law that didn’t depend on a shrinking union movement,” she said.

“When I heard her story, I totally believed her,” she said. “And when I got a chance to see the evidence, I felt very confident.”

Smith said she sees jarring evidence of workplace harassment and discrimination over and over. And she has an explanation for why this keeps happening in this day and age of supposed equality.

“We don’t value women or children,” Smith said. “Why do we cover up and protect men who abuse women and children? How are we going to change that? I don’t know.”

Smith said she spoke on a panel last September with a female lawyer whom she had known and respected for 30 years.

“When it was her turn to talk, she said, giving advice to this audience of hundreds, ‘Of course, once a woman raises claims of sexual harassment, the first thing you have to do is separate her from employment.’

“I said, ‘Wait a minute, you’re actually telling the audience that the first thing to do is fire the woman who complains?’ And all of the defense lawyers said, ‘Of course. You can’t have somebody like that in your workplace.’ I thought my head was going to explode.

“That’s where we’re at — 99 percent of the time, that’s what happens. It’s just a matter of how much a woman gets paid for losing her career.”

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Women-owned law firms
Nancy Erika Smith, partner and co-founder of Smith Mullin in Montclair, said there are no drawbacks to practicing law in New Jersey.
“There’s a level of camaraderie and mutual respect from growing up, socializing, putting on programs and thinking intellectually about the law together that makes New Jersey a great place to work,” she said. “The diversity in this state — and the fact that we don’t have elected judges, so no one has to get corporate donations to keep their jobs — I think is a wonderful element for the development of law that helps and protects all people, not just corporations.”
However, there is always room for improvement, she said.
“I used to be the only woman in the courtroom for years. That has certainly changed. Now, there’s a good chance in New Jersey that the judge is going to be a woman,” Smith said. “But if you look at who runs the big law firms, who sits on the big fancy committees, who advises presidents and senators and congressmen, who is in our Legislature — we have one female congresswoman in New Jersey. We’ve never had a female U.S. Senator from New Jersey ever.
“We have a long way to go in terms of women and power and running law firms and being equals in the law: making it, interpreting it and advising about it. We have a long way to go.”
Women nationwide make up only 18 percent of all equity partnerships in the U.S. — up 2 percent since 2006 — and earn below 80 percent of what their male counterparts do, according to the National Association of Women Lawyers.
“I’m a fairly optimistic person but my advice (to women) would be to start their own firm,” Smith said. “Start a firm with other women or with likeminded men.”
Smith said she represents many female lawyers who do not have good experiences in large law firms.
“Don’t work for corporate law firms. Do something that is meaningful for you as a person and as a woman. For example, maybe you care about the environment or children’s rights,” Smith said.
“I never went into the law to make money and was very surprised to do so. It never occurred to me that you could make money doing this kind of civil rights law. So don’t be afraid to make your own life and create your own environment and a firm that is friendly to your lifestyle. 20 years from now when you’re still not a partner or you’re not being treated fairly, that extra money is not going to be worth it.”

Smith insists she is in this for justice, nothing more. She said that’s always been the case, pointing to nearly two decades working a pro bono case to successfully obtained the freedom of a wrongly convicted man, Vincent James Landano.

“We lost in Landano v. Rafferty for 18 years until we won,” Smith said. “It felt awful, but if I believe in what I’m doing, I still feel good. If the system doesn’t do what’s right, on to the next case, or keep fighting.”

Smith said she often tries to appeal until she is satisfied with what the law should be.

“We’re in for the long haul,” Smith said. “It’s stressful but some stress of being involved in the world and fighting for what you believe in is good.”

The notoriety that comes with Carlson’s case hasn’t been bad for business, though, despite the risk that plaintiff’s work inherently entails.

“You have to really, as a plaintiff’s lawyer, be prepared for the slow years and appreciate and put away a little after the great years,” Smith said. “We’ve been very lucky that the ups have been enough to capitalize our firm. We can go against any firm at this point.”

Smith says a number of Fox News employees have reached out to file further complaints against Ailes, as have other lawyers who wish for Smith to join or take over their cases.

As with the Carlson case, Smith said she must apply her criteria before picking up more clients. It’s the only way to practice law, she said.

“I went to law school to try to make the world a better place, and when I am protecting and fighting for people of all kinds, people who our corporate-dominated society often doesn’t treat right, it feels great,” she said.

“It feels like I’m participating in the world. It’s exciting, it’s fun and I am honored and proud to represent these people. They’re the brave ones, especially the ones who are still employed. It’s a great feeling.”

E-mail to: megf@njbiz.com

Meg Fry

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