Wednesday, November 23, 2022

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

November 23, 2022 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

November 23, 2022 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

Congress Passes Bill to Ban NDAs in Workplace Sexual Harassment Cases

On Wednesday, Congress passed bipartisan legislation, the Speak Out Act, which bans the use of nondisclosure agreements in cases of workplace sexual assault and harassment, by a vote of 315 to 109. The bill passed in the Senate in September and is now headed to the Oval Office to be signed into law.***

The Speak Out Act prohibits the use of NDAs between employers and current, former and prospective employees in cases of sexual assault and harassment. It also invalidates existing NDAs in cases that have not yet been filed. The legislation comes on the heels of the passage of a bill that banned mandatory arbitration in sexual harassment and assault cases. 

“This is a one-two punch,” Frankel said. “When you think about how many people are subjected to these agreements and how rampant sexual assault and abuse is in this country, these are two incredibly significant new laws that are going to change the culture and force corporations to protect their workers instead of trying to hide the dirty little secrets.***

Imre Szalai, a social justice professor at Loyola University New Orleans, told The 19th this summer when the bill was introduced that arbitration agreements and NDAs were developed in the United States for commercial purposes to handle business-to-business disputes in a more speedy and cost-effective manner. The federal arbitration law was first enacted in 1925, but sometime between the 1970s and 1990s, Szalai said there was a “snowball effect” and these agreements began appearing more broadly in consumer and employment relationships. And now, the U.S. relies on its corporate sector to resolve internal disputes more than any other country in the world. 

November 23, 2022 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Monday, October 24, 2022

Gender Disparities in Law Firm Partner Pay

The ABA Journal reports on ongoing disparities in law firm partner pay with some movement toward lessening the gap.  

The average male law firm partner earns 34% more than the average female partner, which is less of a differential than in prior years, according to a survey by recruiting firm Major, Lindsey & Africa in association with Law360.

Average compensation for male partners in midsize and large law firms is $1,212,000 for male partners and $905,000 for female partners, according to the 2022 Partner Compensation Survey. A summary and a link to download the survey is here.

The pay differential was 53% in 2018 and 44% in 2020.

Average partner compensation overall was $1,119,000, up 15% from 2020. Median compensation was $675,000.

October 24, 2022 in Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Thursday, October 20, 2022

Remote Work as Reinforcing Gender Inequality and the Difficulty of Work-Life Balance

Tammy Katsabian, The Work-Life Virus: Working from Home and its Implications for the Gender Gap and Questions of Intersectionality, Forthcoming in the Oklahoma Law Review

Work–life balance is considered to be the top challenge for working women globally. The COVID-19 pandemic catalyzed a worldwide experiment regarding the various components of this challenge and its possible solutions. Because the pandemic forced numerous workers to shift their working lives from the office to their private homes, it created the largest global experiment in remote work in human history, with implications for women’s equality.

As this article wishes to show, the phenomenon of remote work illuminates gender inequality and the difficulty of work–life balance. Since remote work is mainly conducted from the personal residence of the employee, it generates a hybrid private–professional site and brings to the workplace context the private characteristics of the employee. Thus, remote work exposes how women’s traditional role in the private sphere—caregivers—influences their ability to progress at work. The ubiquity of the trend of remote work during the pandemic also revealed what third-wave feminism argued long ago: the feminine experience is not unitary; different women must cope with different difficulties. The pandemic showed that the ability to shift to remote work and successfully balance work with familial duties is not uniform among women. Questions of financial and marital status are also part of this equation.

It appears that working from a distance with the help of technology will become the most prominent way to conduct work in the future. Unless different regulatory models are developed, the current massive telecommuting trend has the potential to strengthen gendered and socioeconomic inequalities in U.S. society. Against this background, this article suggests a model for a solution that considers private–professional hybridity and both employers and governmental authorities. In this way, the article offers broad systemic solutions intended to diminish the effect of an employee’s familial and socioeconomic background on her ability to shift to telework on an equal basis with others and, in doing so, participate equally in the digitalized labor market of the future. 

October 20, 2022 in Family, Work/life, Workplace | Permalink | Comments (0)

Monday, October 10, 2022

Bloomberg Law on "Women's Big Law Exodus"

Ayanna Alexander published an article for Bloomberg Law titled, Women's Big Law Exodus Picks Up Pace in Blow to Diversity HuntThe article summarizes data published by Leopard Solutions.  

Veteran women attorneys are jettisoning Big Law in favor of in-house jobs at a higher rate, an accelerating trend that hits top law firms at a time when they’re fighting to improve their diversity.

In 2021, only 35% of women who left one of the top 200 law firms in the US joined another Big Law firm . . . . Through the first nine months of 2022, that number has shrunk to 28%. Moving to in-house positions remains the most popular second choice for women who say that gives them more control over their careers.

* * * 

Big Law firms intending to improve their diversity need to consider the factors driving women away from their ranks, which may mean taking a harder look at how firms are structured and operate, said Sonya Olds Som, the global managing partner for the Legal, Risk, Compliance & Government Affairs practice group at executive search firm Diversified Search Group, which also places in-house attorneys.

October 10, 2022 in Women lawyers, Work/life, Workplace | Permalink | Comments (0)

Wednesday, September 28, 2022

The Empirical Evidence for a New Approach to Sexual Harassment for Businesses

Jennifer Drobac & Mark Russell, Unmasking Sexual Harassment: The Empirical Evidence for a New Approach  
17 N.Y.U. J.L. & BUS. 315-390 (2021)

If moral outrage were enough, 50 years of antidiscrimination law and two full years of #MeToo should have led to the rapid remediation and elimination of sexual harassment by corporate decisionmakers. However, moral condemnation apparently is not enough, so this Article urges a multifaceted approach that combines (to start) research, financial analysis, disclosure, preventative cultural change, and remediation (if still needed). Through disclosure, it suggests a tactic that combines the goals of social entrepreneurship and profit maximization. Estimates suggest that sexual harassment costs U.S. business millions, if not billions, annually. However, most stock exchange-listed companies avoid financial disclosure or other reporting of sexual harassment claims. The onus for the invocation of Title VII and other antidiscrimination protections falls upon the victims and targets of abuse. Our research and empirical evidence demonstrate that corporations need to make changes to improve the proverbial bottom line. The disclosures that companies do make lack useful information for users of financial reports. Further, a high number of perpetrators of corporate sexual harassment are those with power—key executives and Chief Executive Officers (CEOs). Further, a number of non-disclosures of sexual harassment indicate poor management and culture at companies. Our results are consistent with companies that use arbitration and non-disclosure agreements (NDAs) to conceal sexual harassment. Our research supports a new SEC reporting requirement for all publicly traded companies (and a best practices approach for all organizations). Arguably, corporations would save much more by getting ahead of sexual harassment cases, disclosing problems, and avoiding expensive Title VII and shareholder derivative lawsuits. The evidence and common sense call for additional prophylactic action.

September 28, 2022 in Business, Equal Employment, Workplace | Permalink | Comments (0)

Monday, September 12, 2022

Ederlina Co on "Weathering Invisible Labor"

Ederlina Co has published Weathering Invisible Labor in volume 51 of the Southwestern Law Review (2022). The abstract previews: 

Professor Meera Deo’s Unequal Profession: Race and Gender in Legal Academia powerfully demonstrates how the legal academy has adopted many of American society’s social hierarchies as they relate to race and gender. Inspired by Unequal Profession and using a Critical Race Feminism framework, this Essay centers on women of color professors and the problem of invisible labor in legal academia.

Although for many women of color professors invisible labor involves a labor of love, this Essay contends that the legal academy’s unwillingness to recognize it in a meaningful manner marginalizes women of color professors, devalues how important invisible labor is to law students, law schools, and the legal profession, and perpetuates a raceXgender institutional bias. This Essay recommends steps that law school administrators and allies can take immediately to recognize invisible labor but also suggests that the time has come for the legal academy to begin to reexamine how it values “service” more broadly.

The article concludes that: 

Despite the depth of time and commitment that women of color professors devote to invisible labor and the value law students, law schools, and the legal profession take from it, the legal academy does not meaningfully appreciate it as work. The ongoing failure to recognize and credit invisible labor in many law schools is a form of raceXgender institutional bias that marginalizes women of color professors and diminishes the importance of this work. Although the legal academy has tracked much of American society’s progress when it comes to providing equal opportunity for women of color professors, the academy is not immune from American society’s present-day raceXgender challenges. In the same way many of us expect American institutions to work to address inequalities and inequities in society, the academy must be equally diligent about addressing them in our own institution.

September 12, 2022 in Law schools, Race, Workplace | Permalink | Comments (0)

Wednesday, August 24, 2022

Encouraging Bystander Reporting of Sexual Harassment Through a Financial Reward System

Jessica Fink, Using a 'Bystander Bounty' to Encourage the Reporting of Workplace Sexual Harassment" 

Sexual harassment has become a fact of the modern workplace – something that society laments and regrets, but that rarely shocks the conscience when it comes to light. In fact, both the least and most surprising aspect about workplace sexual harassment is the number of individuals who are aware of it occurring: For every Harvey Weinstein, Matt Lauer, and Louis CK, there have been countless observers who knew about their depravity and who did nothing to stop their behavior. In this way, one obvious approach for reducing harassment at work seems clearly to involve mobilizing these bystanders – encouraging those who witness this misconduct to come forward and report the wrongdoing. Yet for a variety of reasons, bystanders often (quite rationally) choose to remain silent.

This article suggests a novel approach for overcoming the forces inhibit bystanders from speaking out. In the context of financial crimes, the law has successfully encouraged bystander reporting by applying a bounty system that provides significant financial rewards to those who report the wrongdoing that they observe. Indeed, those who have observed financial wrongdoing have reaped millions of dollars in rewards, presumably overcoming whatever reluctance they once may have felt about disclosing the misdeeds of colleagues and associates. This article suggests applying a similar bounty system to workplace sexual harassment: It proposes awarding bystanders a piece of the recovery when their reports of observed workplace sexual harassment culminate into successful lawsuits against the perpetrators of this misconduct.

Blowing the whistle on wrongdoing – harassment or otherwise – comes rife with countless concerns for those who consider speaking out. Giving such bystanders a financial incentive to come forward has worked in other contexts to override this reluctance. Perhaps the same can be true for those who observe sexual harassment at work, providing a much-needed step towards reducing this scourge on the workplace.

August 24, 2022 in Equal Employment, Workplace | Permalink | Comments (0)

Thursday, August 4, 2022

Black Women Firefighters Sue DC, Alleging Racial and Gender Bias

Black Women Firefighters Sue DC, Alleging Racial and Gender Bias

Four Black female firefighters in the District sued the city Monday, saying they have been “systematically and continuously discriminated against on the basis of their race and gender,” including being denied salary increases and overtime pay and being subjected to unfair disciplinary action.

The lawsuit, filed in U.S. District Court in Washington, comes almost a year after a similar case was filed by 10 current and former Black female police officers in the District who complained of “repeated, coordinated and relentless retaliation” against Black women on the police force who complained about discrimination and other misconduct. That case is pending in U.S. district court.

The fire department case “is about systemic characteristics of [the Department of Fire and Emergency Medical Services] that turn it into a ‘boys club,’ in which Black women are tolerated, but not embraced or treated as equals, and in which Black women always have to beg, scrape and fight just to be treated fairly,” one of the plaintiffs’ lawyers, Pamela Keith, said in a statement.

Women's police and firefighter discrimination cases were among the first venues for women's rights equality cases when the earliest public interest litigation began in the 1970s with the Women's Law Fund in Cleveland, Ohio, running parallel to Ruth Bader Ginsburg's ACLU Women's Rights Project.  See Tracy Thomas, The Struggle for Gender Equality in the Northern District of Ohio, 171 n.27, in Justice and Legal Change on the Shores of Lake Erie (Paul Finkelman & Roberta Anderson eds.,2012). 

August 4, 2022 in Equal Employment, Workplace | Permalink | Comments (0)

Friday, July 22, 2022

Study Shows Effects from French Law Reform Requiring 40 Percent Gender Quota on Corporate Boards

Francois-Xavier Ladant & Louise Paul-Delvaux, "Women on Boards: Evidence from a French Reform Imposing a 40 Percent Gender Board Quota" 

In 2010 the French government mandated a 40% gender quota on corporate boards to be met by January 2017. The policy raised the average female board share of publicly traded firms from 10.3% in 2009 to 43% in 2019. We examine the effects of this staggering increase, leveraging new data on 200 French publicly traded firms from 2006 to 2019. Newly appointed female board members are as qualified as their male counterparts and less likely to have any family connection with incumbent board members. Female board members are also accessing powerful positions within the boardroom (committee membership and chairmanship). We then assess how these changes in corporate board composition (i) impact the implementation of board prerogatives and (ii) influence gender imbalances within the firm. Using an IV strategy exploiting the fact that the 40% threshold was set exogenously by the government and a Difference-in-Differences strategy comparing firms differently exposed to the quota, we show that an increase in the share of female board members has impacts at the very top. Indeed, we observe changes in practices that are aligned with better governance, higher likelihood of having a female CEO, and increased female representation in the top management. Beyond the very top of the firms’ hierarchy, an increase in the female board share has no or even negative impact on gender wage or promotion gaps.

July 22, 2022 in Business, International, Workplace | Permalink | Comments (0)

Thursday, July 7, 2022

Study Shows Unintended Consequences of MeToo in Fewer Research Projects and Collaborations for Junior Women Academics

Marina Gertsberg, The Unintended Consequences of #MeToo - Evidence from Research Collaborations 

In this study, I use research collaborations between junior female and male academics at U.S. Economics departments as a laboratory in which to analyze how #MeToo affected workplace interactions between men and women. I find that junior female academics start fewer new research projects after the #MeToo movement. This decrease is driven by a decline in the number of collaborations with new male co-authors at the same institution. The negative effect is more pronounced in locations with more liberal gender attitudes. Moreover, I show that the drop in collaborations is concentrated in universities with both a high number of sexual harassment cases and more ambiguous sexual harassment policies. These results suggest that the social movement had unintended consequences that disadvantaged the career opportunities of the protected group. The study has also important implications for the design of organizational sexual harassment policies.

July 7, 2022 in Education, Equal Employment, Science, Technology, Workplace | Permalink | Comments (0)

Misattribution of Authorship in Legal Work Masks Women's Efforts and Contributes to Gender Gap in Legal Profession

Jordana Goodman, Ms. Attribution: How Authorship Credit Contributes to the Gender Gap, Yale J. Law & Tech. (forthcoming)

 Misattribution plagues the practice of law in the United States. Seasoned practitioners and legislators alike will often claim full credit for joint work and, in some cases, for the entirety of a junior associate’s writing. The powerful over-credit themselves on legislation, opinions, and other legal works to the detriment of junior staff and associates. The ingrained and expected practice of leveraging junior attorneys as ghost-writers is, to many, unethical. But it presents a distinct concern that others have yet to interrogate: misattribution disparately impacts underrepresented members of the legal profession.

This Article fills that space by offering a quantitative analysis of gendered disparate impact of normative authorship omissions in law. Using patent practitioner signatures from patent applications and office action responses, which include a national identification number correlated to the time of patent bar admission, this work demonstrates how women’s names are disproportionately concealed from the record when the senior-most legal team member signs on behalf of the team. This work illustrates that, when women reach equivalent levels of seniority, they do not overexert their power to claim credit to the same extent as their male peers. This parallels sociological findings that competence-based perception, accent bias, and perceived status differentiation between male and female colleagues can manifest in adverse and disparate attribution for women. The gender gap in the legal profession is exacerbated through this practice by falsely implying that women do less work, are more junior, and do not deserve as much credit as their male colleagues.

Addressing the failure of current practices requires cultural changes and regulatory action to ensure proper and equitable attribution in scholarship, doctrine, and industry. Legal obligations to maintain the integrity of the legal profession must include these affirmative steps to remedy de facto and de jure discrimination.

July 7, 2022 in Equal Employment, Legislation, Technology, Women lawyers, Workplace | Permalink | Comments (0)

Wednesday, July 6, 2022

School Dress Code Bans Skirts and Dresses

TX School District's Dress Code Dresses, Skirts to Promote Workforce Skills

The Forney Independent School District announced this week that it was implementing the new dress code to help improve the children’s “future workforce skills” for the 2022-23 academic year. All hoodies, as well as hooded jackets and coats, will be prohibited for all the roughly 15,000 students inside any of FISD’s 18 schools. Dresses, skirts and skorts are now allowed only for kids in prekindergarten through the fourth grade in an effort the district says will “help prepare students for a safe and successful future.”

 

“The use of a school dress code is established to improve student self-esteem, bridge socio-economic differences among students, and promote positive behavior, thereby enhancing school safety and improving the learning environment,” the district wrote in its announcement to parents.***

 

Historians have noted how school dress codes have been a way to assert power and control over students. Einav Rabinovitch-Fox, an assistant professor of American history and women’s and gender history at Case Western Reserve University, wrote in The Post last year about the long history schools had of imposing codes of appearance and behavior, from uniforms to rules of conduct.

 
“As social institutions that are meant to prepare future citizens to function in society, schools are hardly democratic spaces. Instead, schools use their authority to enforce social values through curriculum choices, enrollment decisions and also dress codes,” Rabinovitch-Fox wrote. “Dress codes have usually targeted women and minorities, continuing a long tradition of policing these groups’ appearance and presence in public.”

 

Yet other schools have required skirts for girls: See Fourth Circuit En Banc Holds Charter School Dress Code for Girls is Gender Discriminationsee also Controlling Women by Controlling Clothes in the Workplace

July 6, 2022 in Education, Workplace | Permalink | Comments (0)

New Bipartisan "Speak Out" Bill in Congress Removes Legal Barriers to Reporting Sexual Harassment from Nondisclosure Agreements

The Speak Out Act Removes Legal Barriers to Reporting Sexual Assault

A new bipartisan bill would enable workers to report workplace sexual assault and harassment even if they signed a confidentiality agreement, nearly five years after the viral #MeToo movement exposed how the common legal tools can muzzle survivors.

 

Reps. Lois Frankel (D-Fla.) and Ken Buck (R-Colo.) told The Washington Post they introduced legislation Friday that would empower survivors to report instances of abuse in the workplace. The bill, called the “Speak Out Act,” would prevent employers from enforcing nondisclosure or nondisparagement agreements (NDAs) in instances when employees and workers report sexual misconduct.

 

“This is a preventive piece,” Frankel said. “When companies that are going to have offenders are aware that they cannot hide illegal sexual harassment, that they cannot put it under the rug, they’re going to take more steps from the get-go to keep it from happening.”

 

NDAs are standard features of employment contracts that protect sensitive company information. They’re common across industries: Over one-third of the U.S. workforce is bound by an NDA, according to a 2018 Harvard Business Review report.

July 6, 2022 in Business, Equal Employment, Legislation, Workplace | Permalink | Comments (0)

Monday, June 13, 2022

California Corporate Gender Diversity Law Struck Down, But Other States and Countries Continue Trend of New Laws

Ms., Gender Diversity on on California's Corporate Boards was Too Good to Law

In 2018, California broke new ground for women when Governor Jerry Brown signed the first-in-the-nation requirement that publicly traded companies in the state have at least one woman on their board of directors by the end of 2019, and two or three (depending on company size) by the end of 2021. The bill’s co-sponsor state Senator Hannah-Beth Jackson put it bluntly: “We are not going to ask any more.  We are tired of being nice. We’re tired of being polite. We are going to require this because it’s going to benefit the economy. It’s going to benefit each of these companies.”

 

Alas, it was too good to last. Last month, the law was deemed unconstitutional in a bench trial by Los Angeles County Superior Court Judge Maureen Duffy-Lewis because it wasn’t designed to remedy a “specific, purposeful, intentional and unlawful” instance of discrimination. She added that the state’s claims that diverse boards would directly boost California’s economy could not be proven.

 

It’s no surprise that Judicial Watch, the conservative group that prevailed in the litigation, trotted out the dreaded “Q Word” in opposing the measure: quotas. Legal precedent holds that quotas violate the Civil Rights Act of 1964, which prohibits discrimination against people based on race, gender, religion, age and other protected identities, because they could lead companies or schools to discriminate against people outside the targeted groups.

 

Never mind that in this case the poor, underrepresented targeted group happened to be wealthy white men, who have dominated corporate boards since Queen Elizabeth I the granted the first corporate charter to the East India company in 1600.

 

The ruling is without question a legal and moral setback, but fortunately for the future of women on boards in corporate America, that particular train may have already left the station. In the short time the law was in force, the percentage of board seats held by women virtually doubled—from 15.5 percent to 31.9 percent. In raw numbers, that translates to 766 female board members when the law was passed to 2046 by the end of 2021. ***

 

It’s clear from the pitiful progress since California led the way that stronger action is needed. Cases in point: Washington state’s law requires boards to have at least 25 percent of their makeup be members who self-identify as women. But violators face no penalties. Three other states—Maryland, New York and Illinois—merely require boards to disclose their demographic makeup. Ohio “encourages,” but does not require, disclosure.

 

We should take a page from the European Union playbook, where 40 percent female board seats for publicly traded companies were required as of March of this year. Under the new rules by the Council of the E.U., listed companies must meet the mandate by 2027

June 13, 2022 in Business, Equal Employment, Gender, International, Legislation, Workplace | Permalink | Comments (0)

Wednesday, June 8, 2022

The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

David Horton, The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act  
132 Yale Law Journal Forum (2022 Forthcoming)

In March 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the Ending Forced Arbitration Act). The bill voids pre-dispute arbitration clauses in cases with allegations related to sexual misconduct. The legislation—which earned bipartisan support—was a stunning victory for the #MeToo movement and critics of forced arbitration.

However, this Essay explores a design choice that limits the impact of the new law. Previously, Congress has restricted forced arbitration through standalone statutes that apply with the full force of its legislative power. Conversely, federal lawmakers inserted the Ending Forced Arbitration Act within the FAA. Thus, the Ending Forced Arbitration Act only governs if the FAA governs. But the FAA is subject to several exceptions. In turn, when a case falls through the cracks of federal arbitration law, state law applies. Counterintuitively, the Essay demonstrates that many states require arbitration where federal law now does not. Thus, to truly achieve the goal of preventing allegations of sexual misconduct from being sent to private dispute resolution, either Congress must separate the Ending Forced Arbitration Act from the FAA or states should revise their arbitration statutes.

June 8, 2022 in Business, Equal Employment, Violence Against Women, Workplace | Permalink | Comments (0)

Thursday, May 26, 2022

How Comedy TV Downplays Sexual Harassment and Desensitizes Jurors

Molly Pratt, "'He Took It Out.' How Comedic Television Shows Shape Jurors' Perceptions of Workplace Sexual Harassment," 90 U.M.K.C. L. Rev. (2022)

This Comment analyzes the ways in which depictions of sexual harassment in media, specifically situational comedic ("sit-com") television series, affect potential jurors' understanding and evaluation of workplace sexual harassment claims. Part I begins by explaining the "cultivation theory," which hypothesizes that television shapes viewers' beliefs about the world around them. This section also considers social science evidence that exemplifies how people are influenced by different forms of media, especially media depictions that sexually objectify women. Next, Part II describes the elements of the two different types of harassment claims to provide a backdrop of what real humans, not characters on television, endure every day at work. Part III compares two major sensationalized claims of sexual harassment that have occurred over the past thirty years. Part IV summarizes various episodes of Seinfeld, Veep, and Curb Your Enthusiasm that include scenes of sexual harassment in order to analyze how prospective jurors might consider the illegal harassment shown on television almost every night. Finally, Part V proposes actions that can be taken by the legal and entertainment industries to ameliorate the harmful effects that comedic depictions of sexual harassment can have on juries.

Comedic television episodes which downplay workplace sexual harassment situations that would otherwise make for valid claims under Title VII may cause jurors to become desensitized to the severity of real-world harassment experienced by real-world victims. While this Comment aims to illustrate how media consumption affects the breadth of the legal industry, its underlying goal is to shed light on how inaccurate depictions of legal issues can be harmful to a viewer who is untrained in the law.

May 26, 2022 in Equal Employment, Media, Pop Culture, Workplace | Permalink | Comments (0)

Monday, May 23, 2022

Exploring State Laws of Pregnant Workers Fairness Acts and Reasonable Accommodations

Deborah Widiss, Pregnant Workers Fairness Acts: Advancing a Progressive Policy in Both Red and Blue America, Nevada L.J. (forthcoming)

 Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to work safely through a pregnancy. Federal law does not explicitly address this need. However, in the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divides in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay, written for a symposium on using state legislation to advance civil rights, offers the first relatively-detailed case study of this remarkably effective campaign.

Advocates have generated bipartisan support by highlighting that the laws, generally known as Pregnant Workers Fairness Acts, simultaneously advance numerous distinct policy objectives. Lack of accommodations for pregnancy is a major barrier to women’s equality that disproportionately disadvantages poor and working-class women of color. Addressing this need is also a pro-family policy that promotes maternal and infant health and reduces liability risk to employers. These various frames help sell the policy to lawmakers across the political spectrum.

The state-level success has also been the result of effective partnerships between national organizations and state and local groups. Additionally, the Essay shows how the state legislative campaign has been reinforced by litigation in federal courts, advocacy to federal agencies and Congress, and worker organizing. Finally, the Essay explores how state-level organizing—even unsuccessful state campaigns—has bolstered support for analogous federal legislation.

May 23, 2022 in Equal Employment, Legislation, Pregnancy, Reproductive Rights, Workplace | Permalink | Comments (0)

Thursday, April 28, 2022

4th Circuit Rules Constitution's Fifth Amendment Equal Protection Clause Protects Against Sexual Harassment

Court Revives Sexual Harassment Lawsuit Targeting Federal Judiciary

A federal appeals court on Tuesday revived a former public defender’s lawsuit challenging the federal judiciary’s handling of her sexual harassment and discrimination claims about a supervisor’s unwelcome attention at work.

 

The three-judge panel sided in part with Caryn D. Strickland, a former public defender in Charlotte, and said U.S. court leaders are not entirely shielded from being sued by judiciary employees. In its unanimous ruling, the panel recognized Strickland’s constitutional right — and that of all federal judiciary employees — to be free from sexual discrimination in the workplace.

 

The ruling comes as leaders of the federal judiciary have overhauled the court’s process for reporting misconduct, and as Congress is considering legislation to extend protections to the judiciary’s more than 30,000 employees who lack the same legal rights as other government and private-sector workers.

 

In a 118-page decision, the appeals court said Tuesdaythat judiciary employees in management roles can be held liable for “their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee,” according to the opinion, written by Judge Mary Beck Briscoe of the U.S. Court of Appeals for the 10th Circuit.

 

The panel said the Fifth Amendment’s equal protection clause “secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.

 

The decision is: Strickland v. United States (4th Circ. Apr. 26, 2022) (procedural due process and equal protection claims)

   C. Strickland’s equal protection claim

We next turn to the second claim for relief asserted in Strickland’s complaint, which alleges that defendants “violated the equal protection component of the Fifth Amendment’s Due Process Clause, which confers a right to be free from sex discrimination in federal employment.” ***

The Fifth Amendment to the United States Constitution provides, in pertinent part, that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of 77 law.” U.S. Const. Amend. V. “In numerous decisions,” the Supreme “Court has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws.” Davis, 442 U.S. at 234 (internal quotation marks omitted). “To withstand scrutiny under the equal protection component of the Fifth Amendment’s Due Process Clause, classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Id. at 234₋35 (internal quotation marks omitted). “The equal protection component of the Due Process Clause thus confers . . . a federal right to be free from gender discrimination which cannot meet these requirements.” Id. at 235.

In analyzing Strickland’s Fifth Amendment equal protection claim, the district court began by concluding that Strickland was “attempt[ing] to graft precedent interpreting Title VII onto the Fifth Amendment.” JA, Vol. IV at 1520. The district court in turn concluded that the Fourth Circuit would not recognize such a claim. Id. at 1521. In support, the district court stated that “the Fourth Circuit has not held that courts must apply Title VII standards to free-standing Fifth Amendment claims” and, “[t]o the contrary,” has “rejected a similar attempt to graft Title VII standards onto a free-standing Fourteenth Amendment equal protection claim.” Id. at 1522 (emphasis in original) (citing Wilcox v. Lyons, 970 F.3d 452, 460 (4th Cir. 2020)). The district court concluded that “Strickland’s complaint is devoid of any allegation that women are treated differently than men under the EDR Plan,” and that “Strickland does not allege that the actions taken against her were on the basis of her sex.” Id. at 1523. “Instead,” the district court concluded, Strickland “theorizes that the [defendants] discriminated against her on the basis of sex when they mishandled 78 her sexual harassment complaints, ultimately leading to retaliation and constructive discharge.” Id.

We conclude that the district court misconstrued both the Fourth Circuit’s decision in Wilcox and, more importantly, Strickland’s equal protection claim. In Wilcox, the Fourth Circuit “conclude[d] that a pure retaliation claim is not cognizable under the Equal Protection Clause” of the Fourteenth Amendment. In doing so, the Fourth Circuit noted that neither it nor the Supreme Court “has recognized an equal protection right to be free from retaliation.” 970 F.3d at 458. Instead, the court noted that it “has consistently considered retaliation claims brought under Section 1983 to be more properly characterized as claims asserting a violation of the First Amendment.” Id.

The court explained that “[r]etaliation for reporting alleged sex discrimination imposes negative consequences on an employee because of the employee’s report, not because of the employee’s sex.” Id. at 460. “The very premise of a retaliation claim,” the court noted, “is that the employer has subjected an employee to adverse consequences in response to her complaint of discrimination.” Id. Thus, the court noted, “[t]he necessary causal link is between the employee’s complaint and the adverse action, not between her sex and the adverse action.” Id. The court emphasized that “continued sexual harassment and adverse treatment of a female employee unlike the treatment accorded male employees remains actionable as a violation of the Equal Protection Clause even when the sex discrimination and harassment continue after, and partially in response to, the female employee’s report of prior discrimination and harassment.” Id. at 461 (emphasis added). But, the court noted, “[t]he employee’s claim in such a case is not a claim of pure 79 retaliation, but instead implicates the basic equal protection right to be free from sex discrimination that is not substantially related to important governmental objectives.” Id. (internal quotation marks omitted; emphasis added). Although the court’s holdings were limited to the Equal Protection Clause of the Fourteenth Amendment, we have no doubt, given the Supreme Court’s equivalent treatment of equal protection claims under the Fifth and Fourteenth Amendments, that they should be extended to retaliation claims brought under the equal protection component of the Fifth Amendment’s Due Process Clause. See Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975) (noting that the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment.”).

***Thus, Strickland has not alleged a pure retaliation claim, but rather has alleged a violation of her right under the Equal Protection Clause of the Fifth Amendment to be free from sex discrimination.

We also agree with Strickland that, under Fourth Circuit law, her complaint adequately alleged that defendants were deliberately indifferent to her complaints of sexual harassment. The Fourth Circuit has held in the context of a § 1983 action that a school official can be liable under the Equal Protection Clause of the Fourteenth Amendment for his or her deliberate indifference to student-on-student sexual harassment. Feminist Majority Found. v. Hurley, 911 F.3d 674, 701–02 (4th Cir. 2018).***

Because the Supreme Court’s “approach to Fifth Amendment equal protection claims has always been precisely the same as to equal protection claims under the Fourteenth Amendment,” Weinberger, 420 U.S. at 638 n.2, we conclude that the principles outlined by the Fourth Circuit in Feminist Majority Foundation apply equally to the circumstances alleged by Strickland in this case. More specifically, federal judiciary employees who occupy supervisory roles and/or who are charged with enforcing an EDR plan can, under Feminist Majority Foundation, be held liable under the Fifth Amendment 82 for their deliberate indifference to sexual harassment committed by a federal judiciary employee or supervisor against another federal judiciary employee. This conclusion is based on the principle that the Fifth Amendment’s Equal Protection Clause secures a federal judiciary employee’s right to be free from sexual harassment in the workplace. It thus both guards against sexual harassment perpetrated by other federal judiciary employees and protects federal judiciary employees from deliberate indifference on the part of federal judicial employees charged with preventing sexual harassment and investigating complaints of sexual harassment.

The elements of such a claim, we conclude, are essentially identical to those outlined by the Fourth Circuit in Feminist Majority Foundation: (1) the plaintiff was subjected to sexual harassment by another employee or supervisor; (2) the plaintiff alerted supervisory officials and/or officials responsible for overseeing the court’s EDR plan about the sexual harassment; (3) the supervisory officials and/or officials responsible for overseeing the court’s EDR plan responded to the allegations with deliberate indifference; and (4) the deliberate indifference was motivated by a discriminatory intent.***

Thus, in sum, we conclude that Strickland’s complaint adequately alleged that defendants violated her equal protection rights under the Fifth Amendment and that the district court erred in concluding otherwise.

April 28, 2022 in Constitutional, Equal Employment, Women lawyers, Workplace | Permalink | Comments (0)