“The Times They Are A-Changing”: Can the Employer Affirmative Defense Survive in the #MeToo Era?

Asima J. Ahmad and Anthony B. Haller

Employers grappling with the reverberations of the #MeToo movement have been able to take some solace that, with the right policies and complaint process, they can insulate themselves against liability in sexual harassment cases where the employee does not make a complaint under the internal procedure. That insulation is possible given a well-established and objectively provable legal framework.

What we know…

Where the alleged harassment is by a coworker, if the employee/victim does not complain, there is no liability because the failure to lodge a complaint and allow the employer to investigate objectively avoids any inference of negligence. Essentially, where the employer would not otherwise know of the harassment involving coworkers, it cannot be responsible.

On the other hand, if the harassment is by a supervisor, there is no resulting tangible job action (such as demotion or termination), and the employee does not complain, the employer can assert the affirmative defense established by the Faragher-Ellerth cases decided by the U.S. Supreme Court. Successful assertion of that defense involves the employer showing that it exercised “reasonable care” to prevent workplace harassment and discrimination and that the employee “unreasonably failed” to take advantage of the preventative or corrective opportunities that were in place. Continue reading ““The Times They Are A-Changing”: Can the Employer Affirmative Defense Survive in the #MeToo Era?”

#TakeTheLead: California Employment Laws Boldly Go Where No Legislation Has Gone Before

Emily K. Borman

Unless you’ve been living under the Starship Enterprise, you’ve seen the laundry list of new laws recently passed by the California legislature, which went into effect this year. If you do business in the Golden State, you need a clear and concise understanding of what these new laws mean to your business. To assist, we’re rolling out a series of blog posts to spotlight some of the most far-reaching and significant California legislation to date.

Today, our focus is on #MeToo-inspired legislation, as we examine California’s newest sexual harassment laws and how they affect your business.

Now that we’ve got your attention…Warp Speed Ahead! Continue reading “#TakeTheLead: California Employment Laws Boldly Go Where No Legislation Has Gone Before”

Garden State Says #MeToo: Bill Barring Non-Disclosure Clauses Passes in Both Chambers

Asima J. Ahmad

New Jersey appears to be the next state to ban non-disclosure clauses in employment contracts or settlement agreements. On January 31, 2019, Senate Bill 121 passed the New Jersey Assembly by a 68-4-4 vote and the Senate in a 36-0 vote, sending the bill to Governor Phil Murphy’s desk.

Not Just About Non-Disclosure. The bill was introduced early last year in response to the #MeToo movement and deems unenforceable and against public policy any employment contract provision that either waives substantive or procedural rights or remedies relating to claims of discrimination, retaliation, or harassment, or has “the purpose or effect of concealing the details” of such any such claim. In effect, the bill prohibits forced arbitration of discrimination, retaliation, or harassment claims—of course, that includes sexual harassment claims. Similarly, the bill prohibits confidentiality or non-disclosure provisions from being included in employment contracts or settlement agreements involving those same types of claims. The bill does not prohibit employers from including noncompetition provisions in employment agreements, or from prohibiting the disclosure of proprietary information, which includes non-public trade secrets, business plan, and customer information. Continue reading “Garden State Says #MeToo: Bill Barring Non-Disclosure Clauses Passes in Both Chambers”

New Maryland #MeToo Bill Sets Up Public Shaming and Restrictions

Asima J. Ahmad

Maryland’s legislature recently passed Senate Bill 1010 in an effort to provide victims of sexual harassment additional workplace protections. The Bill awaits the governor’s signature.

Set to be effective October 1, 2018, and titled “Disclosing Sexual Harassment in the Workplace Act of 2018” (the “Act”), the Act voids any provision in an employment contract, policy, or agreement that waives substantive or procedural rights or remedies relating to a sexual harassment claim that accrues in the future, or to a retaliation claim for reporting or asserting a right or remedy based on sexual harassment (unless prohibited by federal law). Any employer who enforces, or attempts to enforce, such a provision will be liable for the employee’s attorney’s fees and costs. The Act will apply to any employment contract, policy, or agreement executed, “implicitly or explicitly extended,” or renewed on or after the effective date; so, it seems to cover policies and agreements implemented prior to October 1, 2018 that continue in place after that date. Continue reading “New Maryland #MeToo Bill Sets Up Public Shaming and Restrictions”

Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers

Scott F. Cooper and Brooke T. Iley

As the breaking news reaffirms in graphic detail on an almost daily basis, we are in a transformative time when it comes to how claims of harassment are reported and handled in the workplace. From Hollywood to Rockefeller Center, and everywhere in-between, employers must be prepared. On December 15, 2017, Blank Rome’s Labor and Employment co-chairs, Scott Cooper and Brooke Iley, held an emergency briefing by webinar entitled: “The #MeToo Movement: Are You Prepared?” Continue reading “Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers”