Category Archives: Sexual Harassment

#MeToo – A Brief Review

Source: Amy J. Traub and Amanda Van Hoose Garofalo, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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It is clear that the #MeToo movement has spurred many actions from all sides, but we likely will not know its full impact for years to come. The authors of this article review the inception of the #MeToo movement and how things have changed since the movement began.

It has been more than a year since the allegations against Harvey Weinstein broke in The New York Times, which unleashed one of the largest social media-driven movements seen to date: #MeToo. #MeToo did not confine itself to social media; instead, the individuals driving this movement screamed from their social media platforms until real change occurred – not just small changes made to appease some current fad, but truly dramatic changes that have shifted the way employers and the law handle sexual harassment claims….

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California Employers Face Raft of New #MeToo Laws
Source: Benjamin M. Ebbink, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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The author of this article provides a complete summary of all of the relevant labor and employment legislation recently signed—and vetoed—in California….

What Employers Need to Know About Delaware’s New Anti-Sexual Harassment Law
Source: Zachary R. Davis and Jennifer A. Ermilio, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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A new law expands the Delaware Discrimination in Employment Act to add a section on sexual harassment. In addition, a recent federal court case makes compliance even more important for Delaware employers (as well as those in New Jersey and Pennsylvania). This article provides a brief summary of Delaware’s new anti-harassment law and the case, along with compliance tips for employers…..

Many Changes Lie Ahead for Companies in the #MeToo Era
Source: Charrise L. Alexander, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
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For a very long time, companies dealt with sexual assault and harassment allegations quietly and in backrooms. However, thanks to the turning tide, more companies are reexamining their internal policies, encouraging change in corporate culture, and addressing sexual assault, harassment, and discrimination claims more directly. The author of this article discusses the changes and recommends that a good insurance program be a part of those changes.

#MeToo whistleblowing is upending century-old legal precedent demanding loyalty to the boss

Source: Elizabeth C. Tippett, The Conversation, March 5, 2019

…. While researching a book on the duty of loyalty, I realized that the #MeToo movement isn’t merely a rift in the ordinary order of workplace relationships in the United States. It is part a larger legal and cultural shift that has been in the works for decades.

The duty of loyalty is the idea that you “cannot bite the hand that feeds you and insist on staying for future banquets,” as an American labor arbitrator wrote in 1972.

It’s a bedrock principle that courts apply to employment disputes, even if you didn’t sign a contract promising to keep an employer’s secrets.

The duty of loyalty is why employers can demand that you sign a confidentiality agreement at the start of employment. It’s why workers can’t download their employer’s trade secrets on a thumb drive and use it in their new job. And why companies are able to persuade judges to enforce noncompete agreements. ….

Forced Arbitration Clauses in the #MeToo Era

Source: National Women’s Law Center, Fact Sheet, February 2019

People from all walks of life – from hotel housekeepers to famous actresses – are stepping forward to confront sexual harassment and violence. Yet too often, forced arbitration clauses buried in everyday contracts help companies cover up sexual harassment and violence. These forced arbitration clauses prevent survivors from fighting back. Forced arbitration clauses are buried in the fine print of many employment contracts and strip away our right to challenge wrongdoing in court. In private arbitration, companies often choose and pay the arbitrator. There is no judge, no jury, no public record, and no meaningful chance to appeal the arbitrator’s decision – even if the arbitrator gets the facts wrong or ignores the law.

Corporations Have Paid Out at Least $2.7 Billion in Civil-Rights and Labor Lawsuits Since 2000

Source: Michelle Chen, The Nation, February 1, 2019

Money talks in the business world, but it also buys silence in the courtroom. In recent years—despite the rise of movements like #MeToo and Occupy Wall Street demanding more accountability from the corporate world—complex, opaque legal settlements have hushed, sealed, and silenced victims of workplace misconduct and abuse. While the details of the civil-rights and labor lawsuits have been kept from public purview, a deep dive into the Fortune 500’s legal disclosures reveals a disturbing picture of corporate America.

An analysis of hundreds of corporate legal settlements in civil-rights cases since 2000 shows that a total of $2.7 billion was paid out by many of the largest US corporations (primarily those listed on the Forbes and Fortune rankings). The report, by Good Jobs First (GJF), puts Wall Street and retail companies on top of the rankings, with $530 million in payouts each, including household names like Bank of America and Walmart. The runners-up were the food-and-beverage sector ($252 million), pharmaceuticals ($209 million), and shipping and logistics ($187 million). In addition to 235 civil lawsuits, the Equal Employment Opportunity Commission litigated 329 cases, netting some $588 million….

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Big Business Bias: Employment Discrimination and Sexual Harassment at Large Corporations
Source: Philip Mattera, Good Jobs First – Corporate Research Project, January 2019

From the press release:

A new report on employment discrimination and sexual harassment cases finds that major banks rank high among those big companies that have paid the most in damages and settlements. Bank of America (including its subsidiary Merrill Lynch) has paid a total of $210 million since 2000, more than any other big company. Morgan Stanley ranks fourth at $150 million and Wells Fargo ranks ninth at $68 million. The financial services industry overall has paid a total of $530 million in penalties. The retail sector has paid the same amount, so the two industries have the dubious distinction of being tied for first place….

Working Women versus Employers: An Insider’s View

Source: Anne Ladky, Labor: Studies in Working-Class History, Vol. 15 no. 3, September 2018
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In her book, Knocking on Labor’s Door: Union Organizing in the 1970s and the Roots of a New Economic Divide, Lane Windham compellingly illuminates the context of organizing in that decade and dispels long-held myths. She makes clear that it was not a lack of organizing that resulted in the decline in unionization in the following decade but the aggressive refusal of companies to tolerate union organizing activity—or any campaigns that they perceived could lead to unionization—aided by government failures. The experiences of those of us in what has been called the working women’s movement bear out her arguments.

I am not a historian—my comments are aimed at connecting what I was experiencing as an organizer with Windham’s narrative. I was organizing in the 1970s around women’s employment issues as a member of the Chicago Chapter of the National Organization for Women (NOW) and then as a member of Women Employed (WE). I joined the staff of Women Employed in 1977, became its executive director in 1985, and served in that position for thirty-two years. WE, whose founding is noted in the book’s second chapter, is now a forty-five-year-old organization whose mission is to break down barriers to women’s economic advancement and promote workplace fairness. It has a staff of twenty; it is locally based with national policy reach. The organization has opened hundreds of occupations to women, helped outlaw and reduce sexual harassment, did some of the very first work on family-friendly workplace policies, made affirmative action a dramatically effective tool for women’s advancement, and much more. Today, its priorities are to change workplace policies and practices that affect low-paid working women, expand work-family policies, and enable more low-income women to enter and succeed in higher education. While the organization’s priorities have changed to address evolving barriers facing low-paid female workers, the organization’s mission is unchanged since its founding in 1973….

Related:
Tangled Up in Race: Working-Class Politics and the Ongoing Economic Divide
Source: Dan Graff, Labor: Studies in Working-Class History, Vol. 15 no. 3, September 2018
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The title of Lane Windham’s impressive new exploration of union organizing in the 1970s, Knocking on Labor’s Door, immediately calls to mind Bob Dylan’s hit single “Knockin’ on Heaven’s Door.” Whether the allusion is intended or not, the song’s release date resonates, since 1973 — marked by the oil crisis and stagflation — is widely considered among historians to be the year of reckoning for the New Deal order, the US labor movement, and the heyday of American liberalism. But where Dylan’s song is a dirge, with its mournful narrator accepting “the long black cloud” announcing death, Windham’s monograph exudes an opposite tone. By uncovering stories of worker-activists who organized with a purpose and a passion reminiscent of the 1930s, Windham rejects the notion of the 1970s as “the last days of the working class” (3)….

Labor Feminism Meets Institutional Sexism
Source: Katherine Turk, Labor: Studies in Working-Class History, Vol. 15 no. 3, September 2018
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Lane Windham’s Knocking on Labor’s Door offers important contributions to labor and working-class history and to the emerging literature on American capitalism. Most important, the book reminds us that the 1970s did not mark a gloomy descent into neoliberalism; rather, those years were shot through with electrifying possibilities.

My comments will reflect on how Knocking on Labor’s Door handles the identity politics of sex and class. The book offers striking insights into the political economy of the 1970s; in particular, it sheds new light on employers’ efforts to protect their profits as they navigated a globalizing landscape. But in blaming those employers when union campaigns led by women and men of color fell short, Windham downplays other factors — especially the roadblocks thrown up by wage-earning white men. Laboring women had to aim their campaigns for equity at their employers as well as at their union “brothers.” Aware of the distinct yet related challenges they faced everywhere they worked, many women experimented with and blended new and well-established forms of activism. The formal labor movement thus offers too narrow a lens to capture the range of outcomes that working people — women in particular — imagined and pursued as they fought the baked-in inequities that shaped workplaces and unions alike…..

I Hear You Knockin’. . . . But You Can’t Come In
Source: Alex Lichtenstein, Labor: Studies in Working-Class History, Vol. 15 no. 3, September 2018
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Knocking on Labor’s Door is an impressive achievement. By combing through National Labor Relations Board (NLRB) records and revisiting some crucial but forgotten labor struggles from the 1970s, Lane Windham seeks to refute pessimists like Jefferson Cowie, who regard that decade as ringing the death knell of an empowered American working class. Specifically, Windham wants to call our attention to the energized struggles of African American, women, and immigrant workers. Newly emboldened by the previous decade’s rights revolutions, these members of the working class sought to join and reinvigorate the flagging American labor movement that had previously done much to exclude them. They indeed were “knocking at labor’s door.”

But did that door open? With all due respect to Windham’s ability to uncover the dynamics of previously ignored or overlooked struggles of this era, I want to provoke discussion by laying out an alternative narrative, based as much as possible on the compelling evidence of labor ferment she herself has unearthed and brought to life in the pages of this book.

Here is my alternative narrative:…

Author’s Response
Source: Lane Windham, Labor: Studies in Working-Class History, Vol. 15 no. 3, September 2018
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I am grateful to Anne Ladky, Dan Graff, Katherine Turk, and Alex Lichtenstein for their carefully considered and provocative analyses of Knocking on Labor’s Door: Union Organizing in the 1970s and the Roots of a New Economic Divide. In writing the book, I aimed to open up a fresh discussion of the workers’ movement in the pivotal 1970s and also to offer new approaches for understanding working people’s struggles today. These accomplished scholars and activists clearly have embraced both undertakings. I would like to also thank the Newberry Library for hosting this forum and the journal Labor for allowing us to further our dialogue here….

L&E Evolution Part II: Discrimination

Source: Lorene D. Park, Labor Law Journal, Vol. 69 no. 4, Winter 2018
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This is part two of a multi-part series on the evolution of labor and employment law in the United States.

When President Lyndon B. Johnson urged Congress, in the wake of President John F. Kennedy’s assassination, to pass the Civil Rights Act of 1964 (Title VII), he spoke of the need to eliminate “every trace of discrimination and oppression that is based upon race or color.” Here we are, more than 50 years later, and antidiscrimination laws are still a work in progress, moving in directions that earlier generations of lawmakers would likely find surprising: for example, cases involving religious accommodation of atheists, debates over whether adverse actions due to spousal jealousy are “because of ” sex, and discrimination based on perceived disabilities, to mention a few.

New laws have been enacted, including GINA and the OWBPA, and existing laws have expanded, including the ADA and its definition of disability. Court precedent has also evolved in significant ways. For example, some courts now hold that discrimination based on sexual orientation is discrimination “because of … sex” under Title VII, while other courts hold otherwise. Our political climate too has fostered rapid changes in how agencies enforce labor and employment laws, and employers are having a hard time keeping up.

All of this has been influenced, of course, by wave after wave of social movements large and small, usually with a catchphrase and now often prefaced with a hashtag (e.g., #Black Lives Matter, #MeToo). Given the ever-changing legal landscape of antidiscrimination laws, the purpose of this article is to assess what the state of the law is and to consider the directions we are going…..

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L&E Evolution: Redefining Employment Relationships
Source: Lorene D. Park, Labor Law Journal, Vol. 69 No. 1, Spring 2018
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Rapidly advancing technology, cultural changes, and a sharply divided political landscape have so changed the workplace that lawmakers are struggling to catch up and tailor labor and employment laws to reflect these changes, to establish cross-jurisdictional consistency, and to enable employers and practitioners to make decisions based on solid ground. Nowhere is this more obvious than in battles over the most basic of definitions: “employer” and “employee.” This is no simple matter of black letter law, at least not anymore. For example, the proliferation of smart phones and other technology has led to online platforms for gig workers, and a simple “click” of the mouse can create a contract on which companies may rely to require arbitration or to disclaim a traditional employment relationship…..

#MeToo: Sexual Harassment and Executive Compensation

Source: John L. Utz, Journal of Pension Planning & Compliance, Vol. 44, No. 4, Winter 2019
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It would not surprise me to learn that workplace sexual harassment has a history as long as that of working relationships themselves. The incidence of misbehavior may have varied with geography, work setting, or the times, but bad behavior seems obdurate. Power is intoxicating and, when combined with carnal impulses (and perhaps an executive’s inflated self-image and underdeveloped empathy for co-workers), makes possible mischief that is personally hurtful and institutionally corrosive.

The intractability of workplace sexual harassment has been noted with woe by a taskforce formed by the Equal Employment Opportunity Commission (the “EEOC”). That taskforce—the two co-chairs of which were EEOC commissioners—reported that studies of sexual harassment suggest 25 percent of women, at the low end, report having experienced sexual harassment in the workplace. Select Taskforce on the Study of Harassment in the Workplace, U.S. Equal Opportunity Commission, June 2016, p. 8. Also, this is the result 30 years after the Supreme Court held that workplace harassment is an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).

Perhaps 2017 will prove to have been a watershed year, both in the effort to reduce the incidence of sexual harassment, and the effort to identify and punish wrongdoers…..

What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment

Source: U.S. Equal Employment Opportunity Commission (EEOC), 2018

From the press release:
The U.S. Equal Employment Opportunity Commission (EEOC) announced preliminary FY 2018 sexual harassment data today – highlighting its significant work this past fiscal year to address the pervasive problem of workplace harassment. What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment recognizes key milestones of the agency to actively enforce the law, to educate and train workers and employers, and to share its expertise on new solutions to reduce harassing conduct in the workplace. ….

Based on preliminary data, in FY 2018:

– The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over fiscal year 2017.
– In addition, charges filed with the EEOC alleging sexual harassment increased by more than 12 percent from fiscal year 2017.
– Overall, the EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement in FY 2018, up from $47.5 million in FY 2017.

Addressing Sexual Harassment in the Workplace

Source: Suzanne Hultin, LegisBrief, Vol . 26, No. 17, May 2018

The recent wave of sexual harassment allegations against media, sports moguls, politicians and people of power over the past year has prompted many state legislatures to address how they are protecting their state’s workers. Many state legislatures are looking to go beyond federal regulations to prevent workplace sexual harassment.