Tag Archive for: sexual harassment

Congress enacts limitations on non-disclosure and non-disparagement agreements regarding sexual harassment and sexual assault

President Biden signed into effect the Speak Out Act, which prohibits judicial enforcement at least in federal and tribal courts of non-disclosure or non-disparagement clauses when sought to be enforced relative to a matter involving sexual assault or sexual harassment, so long as the clause is in an agreement entered into on or after 12/7/2022. The Act’s prohibition includes a prohibition against enforcement of such provisions relative to the existence or terms of a settlement involving sexual assault or sexual harassment, as well against judicial actions, at least in federal and tribal courts, involving negative statements about another party related to such an agreement, sexual harassment or sexual assault.

The Act’s applicability in state courts is not clear from its language and likely to draw litigation.

Tenth Circuit reinstates some claims by a worker but affirms dismissal of others

In a case involving rather significant allegations of misconduct, the Tenth Circuit parsed through the evidence to hold, on summary judgment, that some of the worker’s claims were properly dismissed but other should have been allowed to proceed.

On her claim of discrimination, her case included a claim that an officer of the company said he felt she was “building a case” against the company and was “more trouble than she’s worth,” that he called her and another African-American female employee “Black b*s from Atlanta” and “resident street walkers.” However, the Tenth Circuit rejected the claim because it found no evidence that the officer was a decisionmaker or that he had any input in the adverse employment decision affecting her.

On her claim of retaliation, though, the Court noted that the same officer had allegedly laughed and said, “Let her try,” when the possibility of her re-applying for promotion in the future was discussed.

The court analyzed a number of other claims and multiple other allegations of specific evidence, including an incident involving rather graphic allegations of sexual harassment at a party attended by plaintiff and her co-workers, which the Court held was not sufficient to support a claim because the party occurred well before the time period for filing a charge of discrimination (300 days). But, the Court noted she claimed that she’d been asked multiple questions at work about her breasts, been subjected to “sexual banter,” on a near “daily basis,” much of which was corroborated by other female workers. The Court held this was sufficient to support claims of hostile work environment and constructive discharge.

The case is Ford v. Jackson National Life Ins. Co.

President Biden signs new law allowing employees to opt out of mandatory pre-dispute arbitration agreements in cases of sexual harassment and sexual assault

President Biden signed H.R.4445 (the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act”), which allows employees to opt out — on their own behalf or as a class representative — of mandatory pre-dispute arbitration agreements in any “sexual harassment dispute or sexual assault dispute.” Both types of dispute are defined broadly to encompass any such kind of violation of federal, tribal or state law. The Act does not allow individuals opt-out rights for other types of claims such as racial discrimination.

How this Act will apply when a person asserts both a sexual harassment claim and some other kind of claim, say, a race discrimination claim is not clear. The Act says in one place that a “case” involving a “sexual harassment dispute or sexual assault dispute” can be litigated (is not arbitrable), suggesting that the entire “case” might enjoy opt-out rights, but that very same sentence then says that is so only if the other claims “relate to” the sexual harassment/assault claims. The courts will need to decide in future litigation what all of that means and how it will apply to particular cases.

The Act does not appear to explicitly require employers to take action, such as revising their existing arbitration agreements or giving notice of this new right to employees.

The Act is effective only as to disputes and claims that arise and accrue on or after March 3, 2022.

Tenth Circuit narrowly applies Joint Employer doctrine

In a narrow application of the Joint Employer doctrine, the Tenth Circuit rejected claims of sexual harassment by the plaintiff who worked for a construction and maintenance company that had contracted with another company. She claimed that three of the employees of that other company sexually harassed her. Since that other company was not her actual employer, she claimed it was nonetheless liable as a Joint Employer along with her actual employer.

She claimed that the other company’s workers frequently told her what to do and how to do it. She claimed that she believed that they had the authority to fire her or at least have her fired if she did not follow their direction. The Tenth Circuit rejected her claims holding that “even if (she) believed that (the other company’s employees) could fire her, her statements do not support the claim that (they) had such authority.” The Court noted that the other evidence showed that other company did not hav ethe authority to fire her, discipline her, determine her pay. It did not oversee her payroll taxes.

Her statement that Plains Defendants supervised some aspects of her work would not, under Knitter or New Mexico state law, overcome the overwhelming evidence that C3 was an independent contractor. In short, even if discovery could substantiate every assertion 41 in Ms. Adams’s affidavit, Plains Defendants would be entitled to summary judgment under Knitter and New Mexico state law.

 

 

Tenth Circuit tightens up on Title VII claims

In a case titled Sanderson v. Wyoming Highway Patrol, the Tenth Circuit tightened up on a plaintiff’s ability to bring Title VII claims.

First, the Tenth Circuit affirmed summary judgment on the plaintiff’s retaliation claim because she had not alleged it in her EEOC Charge of Discrimination. In her EEOC Charge, she’d alleged retaliation after she was demoted, but when she sued, she added a claim for retaliation based on events before her demotion. Because her EEOC Charge did not allege the latter, the Tenth Circuit held she had failed to exhaust Title VII’s administrative requirements.

Second, the Tenth Circuit affirmed exclusion of her offered expert “who, based on her own experience (not experience specific to the employer), would have testified about gender stereotypes in law enforcement.” The Tenth Circuit agreed with the trial court that no expert testimony is appropriate on such a topic “because gender stereotypes are within the jur(y)’s common knowledge and experience.”

Third, the Tenth Circuit then ruled for the plaintiff, reversing summary judgment, holding a jury trial was warranted on her claim of a hostile work environment based on her sex. The Tenth Circuit held that persistent “rumors … that she engaged in sexual relationships with colleagues and supervisors,” allegations by coworkers that she’d engaged in “flirting with non-colleagues” while on duty, were sufficient to warrant trial, especially where she’d once been ordered “to answer her radio when she was ‘douching,'” which was of course a clearly derogatory (alleged) comment on the basis of her gender. In addition she’d offered circumstantial evidence suggesting her colleagues excluded her because of her gender, where for example one coworker had bought everyone a breakfast burrito but her.

Considering a voluntary internal audit to prepare for Colorado’s new equal pay law?

Last year I co-authored an article for the Colorado Lawyer about Colorado’s new equal pay law (the Colorado Equal Pay for Equal Work Act, “CEPEWA”), with two of CEPEWA’s drafters, Sarah Parady and Charlotte Sweeney. CEPEWA will take effect January 1, 2021. In our article, we noted that CEPEWA “CEPEWA does not grandfather current pay disparities” and further that “proof of intent to discriminate is not an element of a CEPEWA violation.” We recommended employers consider performing a voluntary internal audit to identify and eliminate any inadvertent pay disparities. Indeed CEPEWA recognizes a possible reduction of exposure if internal audits are done.

A new article was just published in the Colorado Lawyer discussing what such an audit might look like.

Source: Mind the Gap: Practical Solutions to Minimize Pay Equity Claims, by Christine Lyman, Lonnie Giamela, and LaLonnie Gray, The Colorado Lawyer, vol. 49 no. 5 (May 2020)

EEOC Harassment Charges Reflect #MeToo’s Relevance

Interesting article from SHRM on post- #MeToo statistics at EEOC for sexual harassment charges.

On the one hand, there still has not been a flood of sexual harassment charges. In fact, their number remains lower than pre- #MeToo 2010-13 numbers but are slowly climbing back from their post- #MeToo 2014-17 dips.

The number of sexual-harassment charges filed with the EEOC dipped slightly in fiscal year 2019 from 2018 levels but remained much higher than in the immediately preceding years:

  • 2014—6,862
  • 2015—6,822
  • 2016—6,758
  • 2017—6,696
  • 2018—7,609
  • 2019 —7,514

The number of sexual harassment charges were at a high level before that, though they dropped from the beginning of the 2010s:

  • 2010—7,944
  • 2011—7,809
  • 2012—7,571
  • 2013—7,256

One has to wonder if these numbers aren’t the product of the the country becoming more educated on Title VII’s sexual harassment legal requirements; in other words, understanding what the law does and does not prohibit, fewer unsupported claims are being filed. Indeed, the EEOC’s recent statistics do suggest that the charges, which are being filed post- #MeToo, may be, by and large, the stronger claims, at least in the sense that they are producing higher dollar-amount settlements.

The monetary benefits from the agency’s sexual-harassment settlements have steadily risen over the past four years:

  • 2016—$40.7 million
  • 2017—$46.3 million
  • 2018—$56.6 million
  • 2019—$68.2 million

Source: “EEOC Harassment Charges Reflect #MeToo’s Relevance,” A. Smith, J.D. (1/24/2020), available here, www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/EEOC-harassment-charges-MeToo.aspx

In another reversal, NLRB holds employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations

The NLRB has ruled that employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations. A typical “gag order” would be an instruction by the company to employees (and other witnesses) not to discuss matters relevant to an on-going investigation.

The decision triggered a heated dissent from one Board member who argued it will allow employers, in #MeToo type matters, to further keep secret wrongful matters, such as the details of sexual harassment.

In issuing its decision the Board held that such “gag orders” will, still, draw individualized case-by-case scrutiny from the Board when they are “not
limited on their face to open investigations
.”

In reaching its decision, the Board applied its new more permissive approach to analyzing handbooks and policies.

Source: Apogee Retail, 368 NLRB No. 144 (12/17/19).

New Jersey Adds And Expands On State Laws Banning Non-Disclosure Provisions

Following up on developments in California and New York, as well as under the federal tax code, New Jersey has banned nondisclosure provisions, a/k/a confidentiality provisions, in agreements, including employment agreements and settlement agreements, that would prohibit disclosure of allegations related not only to sexual harassment but also discrimination, retaliation and other forms of prohibited harassment.

Source: New Jersey Senate Bill S121.

Gossip, sexual harassment and hostile work environments

A recent Fourth Circuit decision reminds employers to be vigilant in preventing sexually hostile work environments in the workplace. Even gossip can lead to such claims.

In this case, the plaintiff alleged that, when she received a series of promotions, her male co-worker started a rumor that she’d had an affair with a manager. She alleged that other co-workers, including males, continued to spread the rumor. She alleged that, as a result of the rumor, she was frozen out of future promotions and meetings.

The trial court dismissed her case saying she had failed to allege this rumor was due to her being a woman and further that she’d failed to allege it was so bad as to be “severe or pervasive” as required for a hostile work environment claim. The Fourth Circuit reversed on both grounds.

First, the Fourth Circuit held that the rumor was precisely due to her gender. It was sexual in nature and, by essentially asserting that she, as a woman, would not have been promoted otherwise, it was also unlawful sex stereotyping.

Thus, the dichotomy that RCSI, as well as the district court, purports to create between harassment “based on gender” and harassment based on “conduct” is not meaningful in this case because the conduct is also alleged to be gender-based. We conclude that, in overlooking this, the district court erred.

Next, the Fourth Circuit held the impact of the rumor was indeed “sever or pervasive” as required to prove a hostile work environment claim. It was more than “a few slights.” It wasn’t mere gossip in that, at points, it allegedly included “physical threatening.” It affected her work and, she claimed, even cost her the job.

Finally, the harassment interfered with Parker’s work. She was blamed for bringing the controversy to the workplace; she was excluded from an all-staff meeting; she was humiliated in front of coworkers; she was adversely affected in her ability to carry out management responsibility over her subordinates; she was restrained in where she could work, being told to stay away from the rumormonger; and she was told she had no future at RCSI because of the rumor. In addition, she alleges that her employment was terminated because of the rumor and, as stated by management, because of the rumormonger’s complaint. In short, RCSI’s management’s entire relationship with Parker, as well as Parker’s employment status, was changed substantially for the worse.

The case is a strong reminder to employers to prevent sexual harassment, even in the form of “mere” gossip. It should be noted though that as the court emphasized the case involved substantially more than what might be called simple gossip. Whether less substantial allegations would have warranted dismissal is for a later case to determine.

Source: Parker v. Reema Consulting Services, Inc., case no. 18-1206 (4th Cir. 2/8/19).

Reminder to provide compliant sexual harassment and other EEO-related training

As the new year begins, employers should consider reviewing their training regimen. A number of jurisdictions require sexual harassment and/or EEO-related training, including California, Connecticut, Delaware, Maine, New York State, and New York City. Even more encourage employers to provide training, and in all 50 states and the federal judicial system, training is a vital component of a possible defense in the event of litigation.

Employers are reminded not to simply engineer their own training programs, as some jurisdictions, such as California, specify minimum content and training qualifications.

Likewise, employers should not assume that recent training will suffice. For example, in 2018 California, which has confirmed it requires such training for both non-supervisors and supervisors, amended its 2004 sexual harassment training law, to require training, at least every two years, to all new and current employees, starting in 2019, even if the employee was also trained on sexual harassment in 2018.

Three new expansions of California law warrant employer considerations

Employers in California should carefully consider three new legal developments there.

1. California has restricted the use of nondisclosure agreements.

In California, employers may not include nondisclosure (confidentiality) provisions in settlement agreements involving allegations of sexual harassment or sex discrimination, or certain other sexual offenses (whether in the workplace or housing). See Senate Bill 820.

2. California has expanded its requirements for sexual harassment training.

Senate Bill 1343 has required sexual harassment training for most employers, effective January 1, 2020. Training is required for new hires, then again once every two years. California law also specifies particular topics that must be covered in the training.

3. California has expanded liability for discrimination.

Senate Bill 1300 has expanded liability for discrimination in a variety of ways. For example, the definition of sexual harassment has been expanded. Compared to federal law, California state law now provides that a single act of sexual harassment may itself be enough to be actionable, and further, under California law, the courts must now refuse to apply the stray remark doctrine. Additionally, this new California law creates the possibility of personal liability, in retaliation cases at least. Also, it limits the situations in which employers may require employees to sign a release and nondisparagement clauses, and limits an employer’s ability to recover its own costs and fees in litigation.

These are just some aspects of these new laws. California employers should carefully consider these new laws.

 

“Zero Tolerance” policies go too far according to … the EEOC?

Employers should steer clear of “zero tolerance” policies according to the EEOC. A “zero tolerance” policy provides that any form of proscribed behavior (typically sexual harassment or discrimination) will result in immediate discharge.

Zero tolerance policies can “chill reporting,” cautions EEOC Commissioner Chai Feldblum (a Democrat appointee). According to Commissioner Feldblum, individuals may choose not to report harassment when they know it might result in the accused’s discharge: “A lot of people don’t want their co-worker to be fired, they just want the conduct to stop.”

It’s not just one EEOC Commissioner who doesn’t like zero-tolerance policies. It’s also the position taken by the EEOC’s 2015 task force on harassment. Its July 2016 report called “zero tolerance” policies “misleading and potentially counterproductive.” Like Commissioner Feldblum, the task force cautioned that such policies “may contribute to employee under-reporting of harassment.”

Instead, the EEOC recommends a policy that reserves to employers the ability to determine the appropriate level of discipline, up to and including, but not necessarily, immediate discharge.

Source: “Beware of ‘Zero Tolerance’ Policies, EEOC Commissioner Warns,” BNA Bloomberg (7/11/18).

The EEOC and a mixed fallout from #MeToo

Recent developments at the EEOC reflect a mixed fallout from the #MeToo movement.

Despite massive social change seen at many levels from #MeToo, with celebrities, politicians and business leaders all being called to answer for allegations of sexual harassment — and despite many lawyers who anecdotally report seeing increased charges in their own practices — EEOC Acting Chair Victoria Lipnic reported June 11 that the EEOC has yet to see a significant increase in sexual harassment charges.

Notwithstanding a lack of increased charges, the EEOC is determined not to be left behind by the #MeToo movement. The agency itself has formed a task force to study sexual harassment and, immediately following the task force’s meeting, the EEOC filed seven lawsuits (on and and about June 11, 2018) involving allegations of sexual harassment. Additionally, the EEOC has identified sexual harassment as one of its 2017-21 strategic enforcement priorities.

Google memo litigation continues, on two fronts

As previously reported on this blog, the NLRB recently cleared Google of charges that it had allegedly violated Section 7 of the National Labor Relations Act by discharging the author of a controversial memo that attempted to explain his view that men are biologically more fit to be engineers than women. The NLRB held that, while some aspects of his memo might have been protected under Section 7 — a part of the NLRA that applies to both unionized and non-unionized workplaces — there were parts that stereotyped women and warranted Google’s decision to “nip in the bud” (quoting the NLRB General Counsel) his sexist communication.

The NLRB General Counsel’s decision, though, doesn’t end the litigation. There are now at least two separate lawsuits on-going: One by the memo’s author, James Damore, and another by a critic of Damore’s views, Tim Chevalier.

Both are former employees, terminated by Google for their speech involving Damore’s memo. In his memo, Damore advocated that Google had a culture of discrimination against white men and conservatatives, despite his view that men were in fact biologically better fit to be engineers at the highest level of the tech industry. In contrast Chevalier advocated verbally, through conduct, by email, on social media and on Google’s internal systems, that the Damore memo was “misogynistic,” that it was hostile to protected classes including gender, sex and race, and that it reflected, he alleged, a larger culture of hostility, including bullying, at Google on those same bases.

Damore’s lawsuit includes allegations, under California’s anti-discrimination laws, that Google discriminates against conservatives, Caucasians and men. Damore seeks to represent a class of such individuals against Google.

Chevalier’s lawsuit, also filed under California state law, asserts that he too was terminated for his political speech, including his activities to oppose not only Damore’s memo but also the Trump Administration’s politics and to protect the rights of minorities and women and rights associated with gender preference and sexual orientation. Also, Chevalier, a transgendered man, alleges his termination was linked to his efforts to protect related to sexual orientation and gender preference.

Both complaints are lengthy and warrant additional review by interested readers. Those are just some of their allegations. The merits of Mr. Damore and Mr. Chevalier’s complaints will be litigated, but the filing of their lawsuits illustrates how labor laws like the NLRA interact with employment laws like those at-issue in these lawsuits. An employer can comply with one set of laws and run afoul of another.

Sources: Duvalier complaint; Chevalier complaint.

NLRB clears Google, signals more employer-respectful approach to discipline of workplace misconduct

In a shift from recent NLRB decisions holding employers liable under the National Labor Relations Act’s Section 7 for disciplining employee misconduct that is offensive, disrespectful and harassing, the NLRB General Counsel recently cleared Google of charges that, by disciplining an employee for having written an offensive memo, it had somehow violated the Act.

Section 7 is a part of the National Labor Relations Act that applies to both unionized and non-unionized workforces, so this decision is of equal interest to companies without unions as to companies with unions representing their workforces.

In this case, Google’s employee famously wrote a memo that sought to explain why men received more favorable treatment than women in Google’s high tech workplace. The memo was considered by many to be highly offensive and received substantial national press. Included in his memo were stereotyping comments about women, such that women are more prone to “neuroticism” and therefore less able to work in a stressful environment and that more men score in the “top of the curve” than women.

Although the employee “cloaked” his memo in “science,” especially biology, quoting the NLRB, the Board’s General Counsel refused to engage on the so-called science, instead finding that the stereotyping comments were offensive and specifically offensive in a gender-specific manner, implicating the nation’s laws against sex discrimination. The Board’s General Counsel noted that the memo triggered internal complaints of sexual harassment and multiple female engineering candidates withdrew their applications.

The Board’s General Counsel also refused to condone the parts of the memo that may have been protected under Section 7, which protects an employee’s efforts to further his workplace’s wages, hours and working conditions.

(W)hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

In reaching that conclusion, the Board’s General Counsel noted that Google had drafted the employee’s termination notice to expressly say he was not being let go for any lawful aspects of his memo, but rather specifically and only for “(a)dvancing gender stereotypes.”

Finally the Board rejected the argument that the memo was merely speech and that, as such, it alone may not have been a violation of the anti-discrimination laws.

(E)mployers must be able to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

It is this “nip in the bud” comment that is mostly likely to be cited by future employers. Recognizing that an employer has the right to “nip in the bud” misconduct seems to be a reversal of recent Obama- era Board decisions.

Source: NLRB Advice Memorandum, case no. 32-CA-205351 (1/16/18).

Workplace investigations in the #MeToo era

Looking for an interesting read to brainstorm workplace investigations in the #MeToo era? Here’s a recent article from SHRM that’s worth your time.

Source: “How to Investigate Sexual Harassment Allegations,” SHRM, by Dori Meinert (1/18/18).

State legislatures considering sexual harassment reforms

As previously reported in this blog, Congress has already addressed sexual harassment reforms, including by implementing significant restrictions on the tax treatment and ability to keep confidential settlements and awards related to sexual harassment. Now, as state legislatures begin convening, it is expected that reform efforts related to sexual harassment will be debated at at the state level. Already proposals have been put forth in multiple states. Topics likely to be debated include the following:

  • State level restrictions on the tax treatment of settlements and awards involving sexual harassment.
  • The ability to include confidentiality clauses in settlements involving sexual harassment.
  • Enhanced training obligations.
  • Enhanced reporting procedures and protections.

It is anticipated that such debates will involve not only private workplaces but also government workplaces, and especially the state legislatures themselves as workplaces.

In Colorado, our legislature just convened its 2018 session, and already one bill is pending to enhance training requirements for early childhood providers.

Sexual Harassment Prevention In The American Workplace

In the wake of the many recent sexual harassment scandals, both the Wall Street Journal and New York Times ran major pieces on sexual harassment in the American workplace and its prevention.

It’s a particularly difficult challenge in light of the EEOC’s recent study, which produced what EEOC Commissioner Lipnic called a “jaw-dropping moment,” when concluded by finding that 30 years of training has had no impact on the incidence of sexual harassment in the workplace. According to the EEOC, training just simply hasn’t been effective. As NPR has reported, it’s not just the EEOC that thinks training is ineffective; that is unfortunately the opinion of a good many trainers as well. Now, the EEOC recommends a different kind of training that is less focused on the legal issues and more customized to each workforce. To be sure, though, some training is still a best practice.

Other best practices recommended by the EEOC and in the Wall Street Journal and New York Times articles include the following:

  • Clear and updated EEO, sexual harassment, complaint and anti-retaliation policies (again, with related training).
  • Frequent communication of those policies to workers from hire throughout their employment.
  • Enforcement of those policies, in particular the anti-retaliation policy for people who complain and/or participate in the investigation of sexual harassment.
  • Prompt investigations of complaints or concerns.
  • Effective remedial measures, including discipline up to discharge, where investigations establish a violation.

To that list, this author would add consideration of whether an anonymous complaint reporting system is practical in a company’s workplace.

Sources: The Workplace After Harvey Weinstein: Harassment Scandals Prompt Rapid Changes – WSJWill Harvey Weinstein’s Fall Finally Reform Men? – The New York Times

Quid Pro Quo and Hostile Work Environment, both, just sexual harassment, by a different name

Federal and state law prohibit sexual harassment. The courts have articulate two common types of sexual harassment: quid pro quo (where someone is asked to provide sex in exchange for a job benefit or punished on the job for not providing sex) and hostile work environment (where someone is subjected to “severe or pervasive” mistreatment because of their sex/gender). Whatever the kind of civil rights violation, a complaint of sexual harassment must first be lodged with the EEOC (or appropriate state agency) before a lawsuit can be filed.

In this case, the employee filed a the required administrative charge of sexual harassment but described only a hostile work environment, then when he later sued, he added quid pro quo allegations. The trial court held it was too late; he should have done so in his administrative charge. The Tenth Circuit disagreed holding that, under Title VII’s charge requirement and under federal pleadings standards, the employee’s allegations of sexual harassment were sufficient to put the employer on notice of any kind of sexual harassment, whether quid pro quo or hostile work environment. The court explained that quid pro quo and hostile work environment are just two different examples of sexual harassment.

The case was Jones v. Needham, case no. 16-6156 (10th Cir. 5/12/17).