Tag: Sexual Harassment

Sexual Harassment Prevention Training Deadline Approaches for Chicago Employers

As a reminder to employers in Chicago, anti-sexual harassment training is required by Chicago’s Human Rights Ordinance and must be completed by July 1, 2023.  This requirement applies to all Chicago employers, regardless of size or industry.

The training consists of one (1) hour of anti-sexual harassment training for all non-supervisory employees and two (2) hours of anti-sexual harassment training for supervisory employees.  Regardless of supervisory status, all employees must also undergo one (1) hour of bystander training.  Employers must provide training on an annual basis.  Additional information about training requirements can be found here. Employers who fail to comply may be subject to penalties.

Article By Audrey H. Shinn of Vedder Price

© 2023 Vedder Price

The NLRB Curtails the Scope of Nondisparagement and Confidentiality Provisions in Severance Agreements

On Tuesday, February 21, 2023, the National Labor Relations Board (“NLRB” or “Board”) issued McLaren Macomb, a decision that curtails the permissible scope of confidentiality agreements and non-disclosure provisions in severance agreements. See McLaren Macomb, 372 NLRB No. 58 (2023). Analyzing the broad provisions in the agreements at issue in this case, the Board held that simply offering employees severance agreements that require employees to broadly waive their rights under Section 7 of the National Labor Relations Act (“NLRA” or “the Act”) was unlawful. The Board held:

Where an agreement unlawfully conditions receipt of severance benefits on the forfeiture of statutory rights, the mere proffer of the agreement itself violates the Act, because it has a reasonable tendency to interfere with or restrain the prospective exercise of Section 7 rights, both by the separating employee and those who remain. Whether the employee accepts the agreement is immaterial.

The Board’s decision is part of a broader trend by courts and administrative agencies applying heightened scrutiny to contractual provisions that limit employees’ rights. The decision also provides a crucial reminder to union and nonunion workers alike of the relevance of federal labor law in providing legal protections for most private-sector workers.

Case Background

The case arose when Michigan hospital operator McLaren Macomb permanently furloughed eleven employees, all bargaining unit members of Local 40 RN Staff Council, Office of Professional Employees International Union (OPEIU), AFL-CIO, because it had terminated outpatient services during the COVID-19 pandemic in June 2020. After McLaren Macomb furloughed these employees, it presented them with a “Severance Agreement, Waiver and Release” that offered severance amounts to the employees if they signed the agreement. All eleven employees signed.

The agreements provided broad language regarding confidentiality and nondisparagement. The confidentiality provision stated, “The Employee acknowledges that the terms of this Agreement are confidential and agrees not to disclose them to any third person, other than spouse, or as necessary to professional advisors for the purposes of obtaining legal counsel or tax advice, or unless legally compelled to do so by a court or administrative agency of competent jurisdiction.” (emphasis added). The non-disclosure provision provided, in relevant part, “At all times hereafter, the Employee agrees not to make statements to Employer’s employees or to the general public which could disparage or harm the image of Employer…” The employees faced substantial financial penalties if they violated the provisions. The Employer conditioned the payment of severance on Employees’ entering into this agreement.

The NLRB’s Decision

In McLaren Macomb, the Board held that simply offering employees severance agreements that contain these broad confidentiality and nondisparagement provisions violates the NLRA.

The NLRA provides broad protections of employees’ rights to engage in collective action. Section 7 of the NLRA vests employees with a number of rights, including the right “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8(a)(1) of the Act makes it an unfair labor practice (ULP) for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” As the Supreme Court, federal courts, and the NLRB have repeatedly held and reaffirmed, Section 7 provides broad rights for employees and former employees—union and nonunion alike—to engage in collective action, including discussing terms and conditions of employment and workplace issues with coworkers, a union, and the Board. As the Supreme Court has stated in elaborating on the broad construction of Section 7, “labor’s cause often is advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context.” Eastex, Inc. v. N.L.R.B., 437 U.S. 556, 565 (1978).

Applying these foundational principles to the severance agreements at hand, the Board reversed Trump-era NLRB precedent and concluded that the employer’s proffer of these broad nondisparagement and confidentiality provisions contravened the employees’ exercise of Section 7 rights, which is an unfair labor practice under Section 8(a)(1). Notably, the Board held that an employer’s merely offering such broad provisions violates the Act—it does not matter whether the employee signs the agreement or not.

The Board determined that the nondisparagement provision substantially interfered with employees’ Section 7 rights on its face. That provision prohibits the furloughed employee from making any “statements to [the] Employer’s employees or the general public which could disparage or harm the image of [the] Employer.” Analyzing this language, the Board reasoned that the provision would encompass employee conduct or critiques of the employer regarding any labor issue, dispute, or term and condition of employment. Accordingly, this proscription sweeps far too broadly—it prohibits employees from exercising their right to publicize labor disputes, a right which is protected by the Act. Moreover, the nondisparagement provision chills employees from exercising Section 7 rights, including efforts to assist fellow employees, cooperate with the Board’s investigation and litigation of unfair labor practices, and raise or assist in making workplace complaints to coworkers, their union, the Board, the media, or “almost anyone else.” As the Board underscored, “Public statements by employees about the workplace are central to the exercise of employee rights under the Act.”

The Board then concluded that the confidentiality provision also interfered with employees’ Section 7 rights in at least two ways. First, the Board explained that because the confidentiality provision prohibits the employee from disclosing the terms of the agreement “to any third person,” the agreement would reasonably tend to coerce the employee not to file a ULP charge with the Board or assist in a Board investigation. (emphasis added). Second, the same language would also prohibit the furloughed employee from discussing the terms of the agreement with former coworkers in similar situations, which would frustrate the mutual support between employees at the heart of the Act. As the Board summarized, “A severance agreement is unlawful if it precludes an employee from assisting coworkers with workplace issues concerning their employer, and from communicating with others, including a union, and the Board, about his employment.”

Takeaways for Employment Lawyers and Plaintiffs

First, while one might assume that labor law is exclusively the province of unions, their members, and their lawyers, McLaren Macomb demonstrates the relevance of the NLRA for employees regardless of union status. Although the workers in this case were unionized, the Section 7 rights at the heart of the NLRA apply to most private-sector employees, including nonunion employees. Indeed, because nonunion workers often have fewer workplace protections than their unionized counterparts, Section 7’s protections are critically important for nonunion employees. Employees who are asked to sign confidentiality and nondisparagement provisions and their attorneys should be aware that broad restrictions on employees’ concerted activity may be illegal.

Second, this decision is part of a broader effort to protect workers from being muzzled by their employers. For instance, the recent federal Speak Out Act establishes that predispute nondisclosure clauses and nondisparagement clauses—often included in employment contracts—are unenforceable in disputes involving sexual assault or sexual harassment. These recent developments in the law should be on the radar of workers and their attorneys who are navigating employer’s contracts, policies, handbooks, and proposed severance agreements.

Article By Kyle Bigley of Katz Banks Kumin LLP

For more labor law legal news, click here to visit the National Law Review.

Katz Banks Kumin LLP Copyright ©

Newly Enacted Federal “Speak Out Act” Limits Use of Some Sexual Harassment NDAs

President Biden has signed into law the federal “Speak Out Act” limiting the enforceability of pre–dispute non-disclosure and non-disparagement clauses covering sexual assault and sexual harassment disputes.  The Act takes effect immediately.

The Act places restrictions on the enforceability of pre-dispute:

  • “non-disclosure clauses,” meaning “a provision in a contract or agreement that requires the parties to the contract or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.”
  •  “non-disparagement clauses,” defined as “a provision in a contract or agreement that requires 1 or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case.”

Such clauses entered into before a sexual assault or sexual harassment dispute arises are rendered unenforceable.  The Act defines covered “sexual assault disputes” as disputes “involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18, United States Code, or similar applicable Tribal or State law, including when the victim lacks capacity to consent.” Covered “sexual harassment disputes” are defined as disputes “relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”

A few notes about the Act’s scope and implications:

  • Critically, the Act may have limited implications for many employers for one key reason – the Act only applies to non-disclosure and non-disparagement clauses in pre-dispute agreements, meaning that any non-disclosure/non-disparagement clauses in agreements entered into by employers/employees concerning sexual assault or sexual harassment issues after a dispute has arisen are not impacted by the Act.  Because of this, the Act’s protections would not apply to non-disclosure/non-disparagement clauses in separation or settlement agreements executed after sexual harassment or sexual assault allegations are made, but may be subject, of course, to any applicable state or local laws.
  • The Act explicitly excludes from coverage any efforts by employers to protect trade secrets and proprietary information via non-disclosure or non-disparagement provisions.
  • While the Act does apply to non-disclosure/non-disparagement clauses in agreements entered into before December 7, 2022 (the Effective Date), it would not impact clauses entered into before a dispute arose, but where that dispute was active before the Act’s December 7th effective date.
  • Given the above, employers utilizing non-disclosure/non-disparagement agreements at the outset of employment or during the employment lifecycle should consider creating proper carve-outs for sexual assault and sexual harassment issues given the new Act.

Employers should also be aware of other recent developments in this area.  The Speak Out Act also follows the enactment of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, which took effect earlier this year (our post on the law can be found here).  That federal law prohibits employers from compelling arbitration of sexual harassment or sexual assault claims and provides employees the option to pursue those claims in other forums.  Employers should also remain aware that, despite the seemingly narrow implications of this new federal law, several states – including California, Illinois, New Jersey, and New York – have enacted laws in recent years that grant employees broader protections when it comes to certain sexual harassment and discrimination claims, enhancing employees’ abilities to speak out about alleged misconduct.

Article By Corbin Carter and Michael S. Arnold of Mintz

For more labor and employment legal news, click here to visit the National Law Review.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Congress Passes Speak Out Act, Banning Certain Prospective Non-Disclosure Agreements (US)

Earlier this year, we reported that Congress amended the Federal Arbitration Act to preclude compulsory binding arbitration of sexual assault and sexual harassment claims. This past week, Congress went a step further, passing the Speak Out Act, S. 4524, which is aimed at prohibiting prospective, pre-dispute non-disclosure and non-disparagement agreements that prevent employees from discussing sexual harassment or sexual assault. The Senate passed the bill unanimously on September 29, 2022 and the House of Representatives voted in favor of the measure, 315-109, on November 17, 2022. President Biden has expressed his intention to sign the bill into law, and it will become effective immediately upon his signature.

The bipartisan federal legislation – the latest federal bill inspired by the #metoo movement and one that has been slowly gaining support over the past five years – applies only to pre-dispute nondisclosure and non-disparagement agreements and similar clauses in employment agreements, rendering them null and void in instances in which sexual harassment or sexual assault is alleged in violation of federal, state, or tribal law. The goal of the bill is to prevent the use of pre-dispute agreements aimed at silencing employees from reporting sexual impropriety in the workplace. Similar measures have been passed at the state level in some jurisdictions (see, for example, our prior reporting regarding analogous California, Illinois, Maryland, and Vermont here, here, and here, to name just a few), but when President Biden signs the Speak Out Act, as he has indicated he will do, the law becomes immediately effective nationwide.

Earlier versions of the Speak Out Act included language precluding non-disclosure clauses as applied to claims of race, age, national origin, and similar equal employment opportunity claims, but the bill was stripped back to apply only to claims of sexual harassment and sexual assault in its final form. President Biden’s administration urges further legislation to address the use of non-disclosure agreements used to prevent discussion of other types of labor violations, but as a practical matter, the National Labor Relations Act already protects the right of covered employees to engage in protected, concerted activity – such as discussing workplace discrimination, assault, and harassment – and existing EEO laws protect employees engaged in conduct aimed at asserting their own rights or cooperating with other employees in protecting their rights.

Furthermore, the Speak Out Act only precludes the use of pre-dispute non-disclosure and non-disparagement agreements, meaning those signed before the unlawful conduct begins. It does not prevent employers and employees from agreeing to confidential settlements after alleged sexual harassment or abuse occurs. Parties remain free to enter into such arrangements, provided that employers still cannot preclude employees from reporting violations of EEO laws to agencies entrusted with enforcing such laws, like the Equal Employment Opportunity Commission. Employers may still require non-disclosure agreements to protect trade secrets and confidential business information, and may still include confidentiality provisions in severance agreements. Consequently, the Speak Out Act is not as much a sea change itself as a recommitment by Congress and the Administration to expanding measures aimed at transparency around sexual misconduct in the workplace. Employers should review existing handbook policies and standard non-disclosure agreements to ensure compliance with the Speak Out Act, but that should be just one small step in a comprehensive audit of sexual harassment policies, reporting mechanisms, and investigation procedures.

For more Labor and Employment Law news, click here to visit the National Law Review.

© Copyright 2022 Squire Patton Boggs (US) LLP

NYS Sexual Harassment Hotline Goes Live

Effective July 14, 2022 (pursuant to legislation amending the New York State Human Rights Law that was signed by New York State Governor Kathy Hochul in March 2022), New York established a telephone hotline that employees can use to report incidents of sexual harassment to the New York State Division of Human Rights.   The hotline number is 800-HARASS-3 ((800) 427-2773) and will be staffed, on a pro bono basis, by NYS attorneys who have expertise in employment law and sexual harassment issues.  The hotline can be called Monday through Friday, 9:00 a.m. to 5:00 p.m.

Because, under the law, information about the hotline must be contained in workplace policies and postings about sexual harassment, employers need to revise their anti-harassment policies promptly to include this information.

Article By Jonathan A. Wexler of Vedder Price

For more labor and employment legal news, click here to visit the National Law Review.

© 2022 Vedder Price

EMPLOYERS BEWARE: $2.4M Jury Verdict Serves as a Reminder of the Duty Employers Owe to Their Employees

A recent New Jersey Superior Court case involving PNC Bank as a defendant should serve as an eye-opening reminder to all employers that it has a duty to maintain a safe and healthy workplace for all employees, free from harassment, discrimination and any other tort or prohibited conduct. Notably, this duty to maintain a safe and healthy workplace not only applies to the eradication of wrongdoing by employees, but also affords protection to employees from improper acts of non-employees such as customers, clients, vendors, independent contractors, etc.

Following a jury trial in Essex County, PNC Bank was deemed liable in the amount of $2.4 million in damages, consisting of both back and front pay, as well as past and future emotional distress damages, awarded to a former employee who claimed she was the victim of a sexual assault/gender discrimination by a bank customer in 2013. The Plaintiff argued that the customer in question was known by the Bank to have groped and harassed others in the past, yet the Bank did not take the appropriate, remedial measures to ensure her safety and prevent it from happening again.

Although the Bank claims that it had no such knowledge of the prior bad acts of the customer and had no way of knowing any such assault would occur towards the Plaintiff, the jury clearly did not accept that defense.

This case is yet another example on how important it is to have a well-established and widely distributed anti-harassment and discrimination policy and training for all staff in the workplace, applicable to all those susceptible to harassment or discrimination in the workplace, whether it be by fellow employees or otherwise, such as customers or guests.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more about employer responsibilities, see the National Law Review Labor & Employment law section.

Lyft Sexual Assault Claims Consolidated for Pre-Trial Proceedings

Lyft and other companies have become a part of life and people look to them for a safe ride home at the end of a night out.   However, ridesharing companies, like Lyft and Uber, have been under fire for passenger safety concerns, and the stories of women being sexually assaulted by their drivers are prolific, harrowing and terrifying.  In response to this disturbing trend, a wave of lawsuits in California are addressing the company’s responsibility when a passenger is assaulted.

Lyft Sexual Assault Claims Consolidated in San Francisco Superior Court

Recently,  California Superior Court Judge Hon. Kenneth Freeman granted a petition to consolidate multiple Lyft sexual assault cases in California recommending the Superior Court of California San Francisco County as the appropriate venue for the “complex” coordinated matters to be heard.

The Lyft passenger lawsuits claim the plaintiffs were sexually assaulted by sexual predators driving for Lyft after Lyft had been on actual notice of ongoing, sexual assaults by its drivers. According to the complaints, Lyft failed to respond to the sexual assaults by adopting and implementing adequate driver hiring or monitoring systems and procedures to protect riders. This failure to respond to an identified, systemic issue of sexual assault put more riders at risk.

The Lyft plaintiffs filed a motion to coordinate the cases, as most of the cases included in the ruling had been filed in San Francisco Superior Court.  The court agreed with the Lyft plaintiffs that: Lyft’s corporate headquarters are in San Francisco, as are the majority of corporate witnesses and documents.   The court added, the San Francisco Superior Court uses e-filing, which could potentially save the parties significant costs.  Additionally, only cases that are “complex” as defined by California’s Judicial Council standards may be coordinated.

Need for ESI (Electronically Stored Information)  Orders, Are Lyft Drivers are Independent Contractors or Employees, Additional Plaintiffs Joining Requires Complex Case Management

Co-Counsel for the Lyft Sexual Assault Plaintiffs, Brooks Cutter of Cutter Law argued that there are likely to be thousands of documents, studies, e-mails, and memoranda that are relevant to the claims and defenses in this case and discovery will inevitably require a complex ESI (Electronically Stored Information) order and accordingly a court like San Francisco Superior Court is well-equipped to handle such issues, including staying discovery, staying portions of the case, obtaining stipulations that apply to the entire coordinated case, and selecting bellwether plaintiffs.

Many of the underlying cases in the consolidation action allege vicarious liability or the liability of Lyft for the torts or wrongful actions of their drivers whether or not Lyft classifies them as an employee or independent contractor.  Lyft, Uber, and Doordash are actively fighting California Assembly Bill 5 Pledging over $90 Million To Fund Voter Initiative To Overturn AB-5  which went into effect January 1, 2020.  AB-5 profoundly alters the legal standard applied in evaluating whether a worker is classified as an employee or an independent contractor.   Furthermore,  Uber and Postmates on December 31st  filed a legal challenge in Federal Court alleging AB-5 violates individuals’ constitutional rights, seeking declaratory and injunctive remedies claiming the law unfairly discriminates against technology platforms and those who make a living through them.

Lyft has also been accused of stalling and slowing down discovery. Coordinated proceedings could help plaintiffs’ attorneys combat Lyft’s delays, and it could be beneficial to have one judge see how Lyft has conducted itself in discovery.

Attorney Cutter stated he is aware of five more related sexual assault cases that have been filed in the time since that petition was filed.   According to attorney Cutter, “There are definitely victims who have not yet come forward.”

Lyft Fought Against Sexual Assault Lawsuit Consolidation

Lyft, represent by Williams & Connolly, argued that the consolidation of  Lyft Sexual assault cases “would make in San Francisco Superior Court a national clearinghouse for claims against San Francisco-based companies.”    Furthermore, Lyft contended that:

“all claims against a California based-company —wherever the underlying incidents arise, and however much the disputed facts occurred elsewhere and other states’ laws govern the contested legal issues — could be brought in California courts and coordinated.”

Lyft’s two main objections to consolidation are that “the allegations of misconduct are not the same and that the majority of the cases did not occur in California.”

Judge Freeman, however, disagreed with the company, focusing instead on Lyft’s actions or inactions as an organization to protect rider’s safety. “To the contrary, the predominating legal and factual issues will examine Lyft’s liability for allegedly failing to institute a system to have prevented the assaults in these cases and potential future assaults.” Judge Freeman said. “The court agrees with plaintiffs that this is not a case against the drivers; it is fundamentally a case against Lyft.”

Significance of Lyft Consolidation Ruling

Judge Freeman also found that coordination of the suits would make the most efficient use of court resources and avoid duplicative testimony. In giving his ruling he further noted that there is a risk of duplicative and inconsistent rulings if the cases were not coordinated, which would create confusion, and it would hinder the Court of Appeal’s ability to hear challenges to inconsistent rulings, orders, and judgments, which would inevitably cause significant delays.

“This is an important ruling for victims as it means the claims will be heard in a single court in California,” plaintiff’s co-counsel Brooks Cutter said. “Lyft opposed our motion and wanted to force victims to undergo litigation in separate courts across the country. As a California company, it is appropriate for these Lyft claims to be heard in California.”

The Lyft sexual assault and rape claims each allege that the company did not adequately address the issue of sexual misconduct committed by sexual predators who drove for the ride-sharing company. Furthermore, they allege Lyft owed that duty to its riders, who believed it offered a safe form of transportation.  Attorney Cutter says, “The occurrence of sexual assault in the vast majority of these lawsuits is undisputed. The focus of these lawsuits is Lyft’s accountability for the assaults, which plaintiffs contend were enabled by Lyft’s lax background checks and failure to enact reasonable in-app monitoring to help ensure rider safety.”

Alexandra LaManna, a spokeswoman for Lyft, disclosed to the New York Times: in 2019 nearly one in five employees at the company had been dedicated to initiatives strengthening the rideshare platform’s safety, and that in recent months Lyft had introduced more than 15 new safety features.  Lyft announced in September of 2019 some of these safety features: access to 911 through the app and monitoring and offers of support from Lyft personnel to the driver and passenger if a trip is experiencing an unexpected delay.  These are on top of the company’s criminal background checks, steps to prevent fraudulent use of the app and identify driver identity, and harassment prevention programs.

However, despite these steps, more Lyft lawsuits are being filed, alleging the ride-sharing company has not taken adequate steps to protect riders from sexual assault.

Lyft has not Released a Safety Report – Lyft Victims Can Still File Lawsuits

In December 2019, Lyft competitor Uber released a safety report.  Uber reported that in 2017 and 2018 it received reports of 5,981 incidents of sexual abuse.  In 2018, this included 235 rapes and 280 reports of attempted rape, 1,560 reports of groping, 376 reports of unwanted kissing to breast, buttocks or mouth and 594 reports of unwanted kissing to another body part.  Because Uber’s figures are based on the information it received, the actual numbers could in fact be higher than reported.

Lyft has not released its safety report regarding sexual assaults, rapes, and accidents. Attorney Cutter finds the lack of safety report from Lyft to be problematic.  He says, “It is important for Lyft to issue a safety report so the public has a better understanding of the significant risk of sexual assault in rideshare vehicles.”

Victims who suffered sexual assault committed by a Lyft driver are still eligible to file a lawsuit. Consolidation of the current lawsuits does not prevent future lawsuits from being filed, and it is likely there are many more victims who have yet to come forward about their experiences.

Copyright ©2020 National Law Forum, LLC

More on consolidated case litigation in the National Law Review Litigation and Trial Practice section.

Sexual Harassment Training Becomes Mandatory for All Professionals Licensed by IDFPR

All professionals licensed by the Illinois Department of Financial and Professional Regulation (IDFPR) whose licenses come up for renewal after January 1, 2020 and who must satisfy continuing education requirements need to complete one hour of sexual harassment and prevention training under a law that Governor J.B. Pritzker recently signed.

Health care companies that employ registered nurses, pharmacists, doctors and other health care professionals licensed by IDFPR should start making plans to conduct sexual harassment training to help their employees avoid license renewal issues next year.

Most large and medium-sized corporations have conducted in-house harassment and discrimination training for years. More than 20 years ago, the U.S. Supreme Court ruled that companies may have an affirmative defense against lawsuits alleging that a supervisor sexually harassed a subordinate if the employer adopted and annually trained its employees on policies that:

  • define the different forms of sexual harassment,

  • detail to whom to report harassment complaints,

  • detail how the company will investigate such complaints, and

  • prohibit retaliation for good-faith reporting of such complaints

After those Supreme Court decisions, the Equal Employment Opportunity Commission adopted a similar standard for all forms of illegal discrimination.

The new Illinois law, an outgrowth of the #MeToo movement, governs only sexual harassment, not other forms of discrimination. But smart employers will protect their employees and themselves by combining sexual harassment training with training on other types of discrimination. That approach allows employees to obtain the needed continuing education credits under the new law while simultaneously ensuring that employees understand what constitutes harassment and discrimination, to whom employees can report complaints and how their employers will investigate such complaints.

The new state statute is short on details. It simply says that all professionals who have continuing education requirements and are renewing their licenses after January 1, 2020 need one hour of continuing education credits on sexual harassment. The statute authorizes IDFPR to provide detailed regulations on such training, which IDFPR has not yet done.

© 2019 Much Shelist, P.C.

For more states requiring sexual harassment training, see the National Law Review Labor & Employment law page.

Supreme Court Will not Disturb Ruling that a False Rumor about “Sleeping Your Way to a Promotion” can be a Hostile Work Environment

The U.S. Supreme Court decided not to review an appellate court decision that held a false rumor about a woman “sleeping” her way to a promotion can give rise to a hostile work environment claim.  This means that the February 2019 decision by the U.S. Court of Appeals for the Fourth Circuit in Parker v. Reema Consulting Services, Inc. will stand.  In Parker, the Fourth Circuit held that, where an employer participates in circulating false rumors that a female employee slept with her male boss to obtain a promotion, this constitutes Title VII gender discrimination.

Parker’s Discrimination Claim

Evangeline Parker started worked for Reema Consulting Services, Inc., (“RCSI”) at its warehouse facility as a low-level clerk.  She was promoted six times, ultimately rising to Assistant Operations Manager.  About two weeks after she was promoted to a manager position, she learned that some male employees were circulating “an unfounded, sexually-explicit rumor about her” that “falsely and maliciously portrayed her as having [had] a sexual relationship” with a higher-ranking manager to obtain her management position.

The rumor originated with another RCSI employee who was jealous of Parker’s achievement, and the highest-ranking manager at the warehouse facility participated in spreading the rumor.  Parker’s complaint alleged that as the rumor spread, she “was treated with open resentment and disrespect” from many coworkers, including employees she was responsible for supervising.

At an all-staff meeting at which the rumor was discussed, the warehouse manager slammed the door in Parker’s face and excluded her from the meeting.  The following day, the warehouse manager screamed at Parker and blamed her for “bringing the situation to the workplace.” He also stated that “he could no longer recommend her for promotions or higher-level tasks because of the rumor” and that he “would not allow her to advance any further within the company.”  A few days later, the warehouse manager “lost his temper and began screaming” at Parker, and Parker then filed an internal sexual harassment complaint with RCSI Human Resources.  Shortly thereafter, RCSI gave Parker two warnings and terminated her employment.

Lawyer pointingParker brought a discrimination claim, alleging that she was subjected to a hostile work environment.  The district court dismissed her claim on the grounds that 1) the harassment was not based upon gender and instead based upon false allegations of conduct by her, and 2) the conduct was not sufficiently severe or pervasive to have altered the conditions of Parker’s employment because the rumor was circulated for just a few weeks.  Judge Titus found, “Clearly, this woman is entitled to the dignity of her merit-based promotion and not to have it sullied by somebody suggesting that it was because she had sexual relations with a supervisor who promoted her.”  However, he continued “that is not a harassment based upon gender.  It’s based upon false allegations of conduct by her.  And this same type of a rumor could be made in a variety of other context[s] involving people of the same gender or different genders alleged to have had some kind of sexual activity leading to a promotion.”  Ultimately, Judge Titus held that “the rumor and the spreading of that kind of a rumor is based upon conduct, not gender.

Gender-Based Rumors Can Constitute Sex Harassment

Taking into account all of the allegations of the complaint, including the sex-based nature of the rumor and its effects, the Fourth Circuit held that the rumor that Parker had sex with her male superior to obtain a promotion was gender-based in that it implied that she “used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion.”  The court found that the rumor invoked “a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success.”  This double standard precipitated by negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior can cause superiors and coworkers to treat women in the workplace differently from men.  Thus, the rumor about Parker sleeping her way to a promotion constituted a form of sexual harassment.

The Fourth Circuit also held that Parker sufficiently alleged severe or pervasive harassment:

[T]he harassment was continuous, preoccupying not only Parker, but also management and the employees at the Sterling facility for the entire time of Parker’s employment after her final promotion.  The harassment began with the fabrication of the rumor by a jealous male workplace competitor and was then circulated by male employees.  Management too contributed to the continuing circulation of the rumor.  The highest-ranking manager asked another manager, who was rumored to be having the relationship with Parker, whether his wife was divorcing him because he was “f–king” Parker.  The same manager called an all-staff meeting, at which the rumor was discussed, and excluded Parker.  In another meeting, the manager blamed Parker for bringing the rumor into the workplace. And in yet another meeting, the manager harangued Parker about the rumor, stating he should have fired her when she began “huffing and puffing” about it.

Implications

Parker correctly recognizes that gender-based stereotypes can prevent women from advancing in the workplace and that Title VII bars employers from using negative gender stereotypes to harass employees.

© 2019 Zuckerman Law

ARTICLE BY Eric Bachman of Zuckerman Law.
More on workplace harassment via the National Law Review Labor & Employment law page.

New York’s New Child Victims Act Expands Opportunity for Filing Abuse Claims and The Path for Victims’ Justice

This week, a one-year “revival” period of statute of limitations began for individuals who assert civil claims of child abuse to file claims against institutions and individuals pursuant to New York’s Child Victims Act, even if those claims had already expired and/or were dismissed because they were filed late. The premise behind the Child Victims Act is that children are often prevented from disclosing abuse due to the social, psychological and emotional trauma they experience.

Additionally, the  Child Victims Act, also expands the statute of limitations for bringing criminal claims against alleged perpetrators of child sexual abuse, and  permits alleged victims of these crimes to file civil lawsuits up until they reach age 55. This aspect of the legislation will have a significant impact on the volume of criminal cases, and even more so civil lawsuits, 385 of which were filed in the first hours of the revival period, with hundreds more geared up for filing in the upcoming weeks and months. Indeed, the New York State court system has set aside 45 judges specifically to handle the expected crush of cases.

Institutional Changes Following the New Child Victim’s Act

Religious, educational and other institutions that are committed to providing a safe environment for children should be thinking about how they can implement safeguards against child abuse within their institutions. An important step is keeping internal lines of communication with staff and families open, as well as educating staff and leadership as to their reporting obligations under New York law and on how to provide appropriate support if child abuse is suspected.

The Child Victims Act joins the Sex Harassment Bill also signed into law by Gov. Cuomo as significant changes by New York Legislators involving sexual abuse and harassment in New York State.

©2019 Epstein Becker & Green, P.C. All rights reserved.