Tag Archives: #metoo movement

NEW LAW: California Enacts Wide Reaching Law In Response to #MeToo Movement

California Governor Jerry Brown recently signed Senate Bill 1300 into law.  This new law amends the California Fair Employment and Housing Act in direct response to the #MeToo movement.  While many of the provisions of this new law address legal issues (e.g. amending the standard for a §998 offer in a sexual harassment claim and providing “legislative guidance to the California courts relating to workplace harassment law), there are a few issues that impact employers and the workplace directly.

Release of Claims and Non-Disparagement Agreements

The first aspect of this law that directly impacts the employment relationship is the new limitations on releasing certain types of claims and on non-disparagement agreements.  Under the new law, it will be unlawful for an employer to require an employee to sign a release of a FEHA claim “in exchange for a raise or bonus, or as a condition of employment or continued employment.” In addition, it will also be unlawful for an employer to require an employee to sign a non-disparagement agreement which denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.

Expanding Employer Liability for Harassment

The new law also makes employers liable for third-party harassment [not just sexual harassment] if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.  Previously, employers could only be held responsible for sexual harassment committed by nonemployees under this standard.

Optional “Bystander Intervention” Training

Finally, the new law suggests that employers provide “bystander intervention training” to employees in order to give employees the tools to know how to aid others and speak up about unlawful or problematic behaviors in the workplace.  This training, should employers choose to provide it, should include information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training can also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.

This new law goes into effect on January 1, 2019.

 

Washington Takes a #MeToo Stand with Passage of New Laws

Washington has become one of the first states to pass laws to further curb sexual harassment and sexual assault in light of the revelations from the #MeToo movement. Specifically, Washington will now prohibit employers from using Non-Disclosure Agreements (NDAs) to prevent victims of domestic violence from disclosing instances of sexual harassment or assault and will soon require specific employment policies and practices to address these issues.

No More Non-Disclosure Agreements 

The first of these laws is designed to encourage the disclosure and discussion of sexual harassment and sexual assault in the workplace. This new law prohibits employers from requiring employees to sign, as a condition of employment, an NDA preventing them from disclosing sexual harassment or sexual assault occurring in the workplace, at work-related events coordinated by or through the employer, or between employees, or between an employer and an employee, off the employment premises.

Importantly, this law does not prohibit a settlement agreement between an employee or former employee alleging sexual harassment and an employer from containing confidentiality provisions. Thus, while employers may not require employees to sign any form of agreement that requires them to remain silent about future instances of sexual harassment or sexual assault, such as an NDA at the time of hire, they may request employees to enter into confidential settlement agreements for incidents that have already occurred.

This law will take effect June 7, 2018.

Model Policies and Best Practices Continue reading Washington Takes a #MeToo Stand with Passage of New Laws

Why Employers Should Avoid Jumping the #MeToo Gun

A recently filed lawsuit against an employer following a #MeToo-influenced termination may mark the beginning of a new wave of liability flowing from the movement.

An Interesting Twist

New York comedian Aaron Glaser filed the lawsuit against his former employer, Upright Citizens Brigade (UCB), alleging that he was terminated following a biased investigation into allegations that he raped and drugged several women.  Glaser further alleges he was not questioned or presented with any information concerning the allegations of his misconduct other than a statement that “in the past people feel as though you raped them,” along with information that the alleged conduct had occurred approximately 6 years earlier.  Based on these allegations, Glaser alleges he was terminated and banned from entering UCB premises.

Following his termination, Glaser claims that his termination and banning were leaked by his former employer and posted on social media despite being told they would remain confidential.  As a result, according to Glaser, he was unable to find work in other venues.

Glaser’s allegations against his former employer include gender discrimination (based on his termination during a movement in the comedy community labeled “believe all women”); hostile work environment; retaliation; and wrongful termination (for his termination as a result of the allegedly biased investigation).

The Takeways

Regardless of whether Glaser’s claims have any merit, they point to the importance of a fair, unbiased, and evidence-based investigation.  Employers should resist the court of public opinion and the pressures of social media movements and instead hold to their workplace policies and investigative procedures. These should include:

  • Investigations only by unbiased, neutral, parties. Where necessary, a neutral third-party may be appropriate.
  • Interviews of the complaining party as well as the alleged wrongdoer.
  • Interviews of any witnesses to the alleged misconduct.
  • Review of any relevant communications between the complaining party, alleged wrongdoer, and third-parties.
  • Thorough documentation of any findings of the investigation.
  • Notice to the alleged wrongdoer as to whether the complaint was substantiated and what if any policies were violated.
  • Appropriate disciplinary action to stop the misconduct and to prevent it from recurring. This may be termination, or it might be a written warning and mandatory training.
  • Notice to the complaining party as to whether his or her complaints were substantiated and whether appropriate disciplinary actions were taken. In most instances, the specific disciplinary actions taken should not be disclosed.
  • Confidentiality of the investigation and findings by the employer. Only those persons with a need to know the information should be informed of the existence of the investigation or employer’s findings.

$800,000+ Reasons to Curb Sexual Harassment in Your Workplace

With the #metoo movement continuing to make headlines, all US companies should be looking for ways to address (and prevent) sexual harassment in their workplace.  However, if the continuing media coverage of the “sexual harassment problem” has not convinced you, two recently EEOC settlements give employers $890,000 reasons to take immediate action.

EEOC v. Indi’s Fast Food Restaurant, Inc., and Evanczyk Brothers, LLC

On January 8, 2018, the EEOC issued a press release announcing that this case (a 15-plaintiff case) had settled for $340,000.  According to the EEOC, managers of four of this restaurant chain’s locations subjected the plaintiffs (many of whom were minors at the time they worked for the restaurant) to “long-standing sexual harassment, including requests for sexual favors, sexually offensive comments and unwanted sexual touching.”

In addition to paying this settlement, the company must also take the following measures:

  • Provide letters of apology to the women,
  • Implement new policies,
  • Conduct extensive training for employees and management,
  • Post an anti-discrimination notice at all workplaces, and
  • Report compliance to the EEOC for a five-year period.

EEOC v. The GEO Group, Inc.

On the same day, the EEOC issued a second a press release announcing that this case (a class action case) had settled for $550,000.  According to the EEOC, female employees were subjected to a pattern and practice of sexual harassment (including sexual assault) between 2006 and 2012.  The harassment included the following type of behavior:

  • Sexual assault

o   A male manager grabbing and pinching the breasts and crotch of a female correctional officer, and

o   A male employee forcing a female employee onto a desk, shoving her legs apart, and kissing her.

  • Verbal harassment

o   Male officers asking female officers for sex,

o   A male officer calling a female officer “bitch” and “f—ing bitch” daily,

o   Supervisors and officers making sexually explicit comments (including “All I want to see of you is the top of your head bobbing up and down while you are on your knees”) to female officers.

o   A supervisor frequently saying that women should be barefoot and pregnant.

o   A male employee making gestures while talking dirty, and

o   Officers using profanity

  • Unwanted physical contact

The female employees also faced retaliation (e.g. discipline, forced resignation, termination, or placement in unsafe conditions in the prison) when they complained about the harassment.

In addition, to paying this settlement, the company must also take the following measures:

  • Send letters of regret to the women and provide employment references for them.
  • Review its equal employment opportunity (EEO) policies,
  • Ensure that all complaints of sexual harassment and retaliation are immediately and thoroughly investigated by a neutral employee,
  • Ensure that the complainant is informed of the results of the investigation
  • Designate certain alleged harassers as ineligible for rehire,
  • Post notices of the consent decree in its Florence facilities,
  • Conduct anti-discrimination training, and
  • Include EEO compliance when evaluating its managers.

Take Home For Employers

These recent settlements send two very important messages to employers.

Most importantly, employers should know that they cannot “stick their heads in the sand” when in receipt of a sexual harassment complaint (or when they have knowledge of potential sexual harassment – regardless of whether a complaint has been made).  Instead, employers must conduct investigations into these situations and take steps to address sexual harassment.  To ignore sexual harassment in the workplace will prove expensive to employers.

Also, these cases show that the EEOC (and state agencies) take this type of claim very seriously and will aggressively pursue charges of sexual harassment.