Quirky Questions

Real Life Employment Law

Which Provisions of California’s So-Called ‘Sanctuary State’ Legislation Affecting Employers are Currently in Effect?

While portions of California’s Immigrant Worker Protection Act have been enjoined, employers remain subject to notice obligations. California passed a statute limiting the extent to which employers could cooperate with federal immigration officials. Litigation quickly ensued, and a recent decision enjoined enforcement of part of the law, while leaving other provisions unaffected. With the speed of the news cycle, employers may understandably require clarification as to which immigration policies are actually in effect. What portions of the sanctuary state law were enjoined, and what parts remain effective?

The Immigration Worker Protection Act (AB 450), which went into effect in January 2018, imposed three primary obligations on employers:

  1. A prohibition against allowing or consenting to a federal immigration enforcement agent’s request to enter nonpublic areas in the workplace, or to access employee records, without a judicial warrant;
  2. A prohibition against re-verifying the employment eligibility of a current employee outside the time and manner required by federal law; and
  3. A requirement to provide notice to employees upon receipt of a Notice of Inspection of Form I-9, and after the inspection, provide notice regarding the results of the inspection.

Almost immediately, the law was challenged in court, in a case called United States v. California. On July 5, 2018, John A. Mendez of the United States District Court for the Eastern District of California issued a preliminary injunction blocking the enforcement of the first two of the above obligations, but not the third obligation concerning notice. The court reasoned that the first prohibition on cooperation with federal immigration officials likely “impermissibly discriminates against those who choose to deal with the Federal Government,” and therefore violates the intergovernmental immunity doctrine. The court also found that the second prohibition on early re-verifications likely violates the Supremacy Clause. The notice obligation, on the other hand, regulates the employer’s “failure to communicate with its employees,” and is therefore likely a permissible exercise of state power.

Accordingly, as it currently stands, the notice provisions are in effect. Under the statute, employers must notify employees and labor union representatives within 72 hours of receiving a Notice of Inspection of Form I-9. Employers must include the name of the federal agency conducting the inspection, the nature of the inspection, the date the employer received the inspection notice, and a copy of the inspection notice. Additionally, within 72 hours after the inspection takes place, employers must also provide affected employees and their labor union representatives with the results of the inspection, a timeframe for correcting any deficiencies found, the date and time of any meetings with the employer to correct any deficiencies found, and a notice to the employees about their rights to representation during any meeting with the employer.

It is important to note that at this point the court entered a preliminary injunction; the ultimate enforcement of the statute may change when the case reaches completion, and even then, an appeal to the Ninth Circuit (and perhaps ultimately to the Supreme Court) is likely.

What is Required of New York Employers Under the Recent Changes to the State and City Sexual Harassment Laws?

As the #MeToo movement was changing the conversation around sexual harassment nationwide, both New York State and New York City passed laws aimed at changing the way New York employers handle sexual harassment in the workplace. The changes include mandatory sexual harassment training and policies, enhanced protections for employees and non-employees and additional reporting and certification requirements for City and State contractors. Some of the new requirements are already in effect, while others must be implemented by employers over the next year.   With laws changing at both the state and local level over the course of the next year, what do New York employers need to know? We have provided a detailed review of the new laws below.

New York State

The On April 12, 2018, New York Governor Andrew Cuomo signed into law budget legislation that included significant anti-sex harassment measures. Most notably, this legislation: (1) requires mandatory sexual harassment training and written anti-harassment policies; (2) expands sexual harassment protections to non-employees; (3) prohibits certain non-disclosure provisions in settlement agreements; (4) prohibits mandatory arbitration of sexual harassment claims; and (5) requires bidders on state contracts to certify compliance with policy and training requirements.

  1. Annual Sexual Harassment Training and Written Anti-Harassment Policy.

Beginning October 9, 2018, New York State employers will be required to distribute a written anti-harassment policy and provide annual anti-sexual harassment training to all New York employees. All employees must receive training by January 1, 2019. New York State has developed a model training program (available here) and a model sexual harassment policy (available here) for employers to use. These models are currently subject to revision following a public comment period, which is scheduled to end September 12, 2018.

An employer may develop its own policy and training program as long as they meet all of the requirements of the new law. Trainings must be interactive and include: (i) an explanation of sexual harassment consistent with Department of Labor guidance; (ii) examples of prohibited conduct; (iii) information concerning federal and state law related to sexual harassment and the remedies available under these laws; (iv) notice to employees of their rights of redress and all available administrative and judicial forums for adjudicating sexual harassment claims; and (v) information addressing conduct by supervisors and any additional supervisor responsibilities.

Anti-harassment policies must include a complaint form for use by employees. A model complaint form has been published for employer use, and is available here.

  1. Expansion of Sexual Harassment Protections to Non-Employees.

The New York State Human Rights Law has been expanded to cover non-employees. Employers may now be held liable for sexual harassment of non-employees such as contractors, vendors, and consultants, if the employer knew or should have known that the individual was subjected to sexual harassment at the employer’s workplace and failed to take appropriate corrective action.

  1. Non-Disclosure Provisions in Settlement Agreements Prohibited.

Beginning July 11, 2018, contract terms that prevented the disclosure of the underlying facts and circumstances related to a sexual harassment claim became unlawful—unless the non-disclosure provision was the complaining party’s preference. The complainant must be given 21 days to consider whether to accept the proposed confidentiality language, and then seven days to revoke his or her acceptance of it. Any agreed-upon non-disclosure provisions only become effective after the seven-day revocation period has expired. Furthermore, any such agreed upon non-disclosure provisions must apply to all parties to the agreement. The new law does not prohibit provisions that prevent disclosure of the terms of the agreement.

  1. Mandatory Arbitration Clauses for Sexual Harassment Claims Prohibited.

Also beginning July 11, 2018, mandatory arbitration clauses that purported to apply to sexual harassment claims became prohibited (and rendered null and void), except where inconsistent with federal law. The Federal Arbitration Act (FAA) preempts any state rule that discriminates on its face against arbitration. Thus, this provision may be not be enforceable with respect to arbitration agreements governed by the FAA.

  1. New Requirements for State Contract Bidders.

Beginning January 1, 2019, every bidder on a New York State contract must certify that it complies with the above requirements concerning written harassment policies and annual anti-harassment training. A bid that fails to include the required language will not be considered.

New York City

In May 2018, New York City passed the Stop Sexual Harassment in NYC Act (“the Act”). The Act requires: (1) annual sexual harassment training of employees; (2) a poster in the workplace advising employees of their rights and a similar written notice to every new employee; and (3) enhanced reporting by bidders on New York City contracts. The Act also expands the protections of the New York City Human Rights Law to all employers, regardless of size.

  1. Annual Sexual Harassment Training for Employers with 15+ Employees.

As of April 1, 2019, New York City employers with 15 or more employees (including interns) will be required to conduct annual anti-sexual harassment training for all employees, including supervisory and managerial employees. The Act requires that training be interactive (though it need not be live or conducted in-person) and must:

  1. provide an explanation of sexual harassment as a form of unlawful discrimination under NYC law;
  2. state that sexual harassment is a form of unlawful discrimination under federal and New York state law;
  3. include a description of what sexual harassment is;
  4. describe the employer’s internal complaint process;
  5. state the complaint process available through the NYC Commission on Human Rights, the New York State Division of Human Rights and the Equal Employment Opportunity Commission, including contact information;
  6. explain the prohibition against retaliation;
  7. include information concerning bystander intervention (i.e., such as suggestions on how to confront a harasser); and
  8. provide the specific responsibilities of supervisory and managerial employees in the prevention of sexual harassment and retaliation, and measures such employees should take to appropriately address sexual harassment complaints.

The training must be conducted on an annual basis for incumbent employees, and new employees who work 80 or more hours per year on a full or part-time basis in New York City must receive the training after 90 days of initial hire. If an employee has received training at one employer within the training cycle, he or she would not be required to receive additional training at a different employer until the next annual cycle. The Act also clarifies that if an employer is subject to training requirements in multiple jurisdictions, it will comply with the Act so long as any annual training that is provided to employees addresses, at a minimum, the substantive requirements of the Act. Thus, for practical purposes, NYC employers with 15 or more employees, who are required to provide training under New York State law by no later than January 1, 2019, should make sure such training satisfies the New York City requirements as well. The City will also require employers to generate and retain records of all trainings, including signed acknowledgements.

The New York City Commission on Human Rights will develop publicly available online sexual harassment training modules for employers’ use, which will satisfy the requirements of the Act so long as the employer supplements the module with information about the employer’s own internal complaint process to address sexual harassment claims.

  1. Mandatory Sexual Harassment Poster and Fact Sheet Distribution.

Effective September 6, 2018, all New York City employers are required to conspicuously display an anti-sexual harassment rights and responsibilities poster and to distribute an information sheet on sexual harassment to new hires, both of which were issued by the City August 2018. A copy of the poster can be found here (and available here in Spanish), and the corresponding fact sheet for distribution can be found here.

The required poster must be “conspicuously display[ed] . . . in employee breakrooms or other common areas employees gather.” The Act requires that all employers display the poster in both English and Spanish. The notice must be at least 8.5 x 14 inches with a minimum 12 point font. Employers may distribute the information sheet to new employees as a standalone document or incorporate the factsheet into their employee handbook.

  1. Expansion of Applicability to All Employers.

The New York City Human Rights Law was amended to permit claims of gender-based harassment by all employees, regardless of the size of the employer. Previously, the NYCHRL’s anti-discrimination provisions were only applicable to employers with four or more employees. The statute of limitations for filing complaints with the NYC Commission on Human Rights for gender-based harassment claims was also extended from one year to three years following occurrence of the alleged harassment.

  1. New Requirements for City Contract Bidders.

As of July 8, 2018, city contractors are now required to include their practices, policies, and procedures “relating to preventing and addressing sexual harassment” as part of an existing report required for certain contracts under the City Charter and corresponding rules.

How Important are Irreparable Injury Provisions in Non-Compete Agreements?

Today’s workforce is more mobile than in past generations. Long gone are the days when an employee started and ended a career at the same company. Knowing how to protect your company’s confidential information when a trusted employee leaves can have a lasting impact on your ability to compete. So, what can you do when a former employee goes to work for a competitor? Is having an irreparable injury provision in your non-compete agreement enough to obtain a court order prohibiting that individual from working at his/her new job?

In Minnesota, courts want to see more than just words in a contract before they will grant injunctive relief against a former employee.

This week, the Supreme Court of Minnesota issued a decision in St. Jude Medical, Inc. v. Carter. The case arose after Heath Carter left his employer to work for a competitor. The employer filed suit against Mr. Carter and the competitor, alleging violations of Mr. Carter’s non-compete agreement. The employer did not seek money damages but asked the court for injunctive relief; specifically, an order enforcing the terms of the non-compete agreement and prohibiting Mr. Carter from working for a competitor in his then-current position. The case went to a jury, which ultimately found that Mr. Carter had breached his non-compete agreement. But the court refused to enter an injunction, finding that the employer failed to establish that it had been harmed.

The case made its way to the Supreme Court, where the question became what to do about specific language in the non-compete agreement that addressed the issue of whether and how the former employer was harmed. The language at issue is commonly included in many non-compete agreements:

In the event Employee breaches the covenants contained in this Agreement, Employee recognizes that irreparable injury will result . . . that [the Employer’s] remedy at law for damages will be inadequate, and that [the Employer] shall be entitled to an injunction to restrain the continuing breach by Employee.

At first glance, the provision appeared to resolve the issue of whether the employer suffered irreparable harm—Mr. Carter agreed that it had. But the Supreme Court disagreed. The court noted that “[a] private agreement is just that: private,” and concluded that such contractual language does not, by itself, entitle an employer to an injunction after proving the breach of a non-compete. The court emphasized that regardless of what the parties agree to, the burden will always fall on the employer to show that: (1) legal remedies (i.e., money damages) are inadequate; and (2) “great and irreparable injury” will result without an injunction. Because the employer did not offer proof of an irreparable injury, the court held that the employer was not entitled to an injunction.

So what now? Are provisions like those quoted above meaningless? Should employers scramble to re-write their non-compete agreements? The short answer is “probably not.”

Minnesota aligns with a number of states in which mere contractual language about irreparable harm is not enough to win injunctive relief. Nevertheless, these provisions are still worth including in non-compete agreements because courts can consider them as one of many factors that bear on whether an employer has suffered irreparable harm. Other factors will usually be more persuasive, often including evidence of some or all of the following:

  1. The departing employee took confidential information when he or she left (e.g., client lists, marketing plans, and pricing information).
  2. The departing employee disclosed confidential information to the competitor or put confidential information to use in the new job.
  3. The departing employee solicited business from former clients or customers and used confidential information to solicit such business.
  4. The former employer lost client or customer goodwill because of the departing employee’s breach of the non-compete agreement.

Ultimately, Carter serves as a useful reminder to employers on both sides of an employee’s job change. Former employers should carefully consider how they have been harmed by an employee’s departure (and what evidence they anticipate being able to present as proof of that harm). Hiring employers should understand and reinforce to their new employees the importance of complying with prior non-compete agreements. And for employers on both sides, consulting with experienced employment attorneys even before these types of cases go to litigation can be the key to a successful outcome.

In a Common Sense Decision, Appellate Court Clarifies Deadline for Employers to Issue Wage Statements under Labor Code Section 226

It’s a situation any Human Resources professional might find themselves in – circumstances require you to effectuate a termination in short order and you have to scramble to calculate the employees’ correct final pay and prepare a paycheck. But what if the wage statement is not ready? Does the law require employers to provide a wage statement to a terminated employee simultaneously with their final paycheck? Thanks to a recent decision from the California Court of Appeal, you have a little breathing room.

In Canales v. Wells Fargo Bank, 23 Cal. App. 5th 1262 (2018), Wells Fargo had a practice of paying certain terminated employees final wages via cashier’s checks – which were prepared in the bank branch – and then mailing the wage statements to the employees from another location, either that same day, or the following day. The plaintiff complained that the wage statements should have been provided simultaneously with the paychecks, and that Wells Fargo’s practice of mailing them constituted a violation of California Labor Code section 226, which provides:

“…[e]very employer should semimonthly or at the time of each payment of wages, furnish each of his or her employees, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately when wages are paid by personal check or cash, an accurate itemized statement in writing…”

Wells Fargo responded that it was in compliance with the statute because:

1) The statute does not require simultaneous delivery of wage statements and specifically allows employers the option to provide wage statements “semimonthly;” and

2) It was permitted to mail the wage statements, because the statute provides that wage statements can be delivered “separately” in the case of a cashier’s check, which is analogous to cash.

The court agreed, holding, “…if an employer furnishes an employee’s wage statement before or by the semimonthly deadline, the employer is in compliance.” The court explained that it interpreted the phrase ‘“semimonthly or at the time of each payment of wages’ as representing the outermost deadlines by which an employer is required to furnish the wage statement.” The court provided the following example:

[S]uppose an employer furnishes wage statements on the first and 15th of each month. The employer discharges an employee on the second of the month. Per the statute’s plain language, if an employer pays the final wages by personal check or cash, it has the option of furnishing the discharged employee with the wage statement.

We find it illogical to conclude an employer violated section 226 by furnishing a wage statement before the semimonthly date has been reached. If the employer furnishes the wage statement to the discharged employee of the fifth of the month, the employer has complied with the requirement that it furnish the wage statement to the employee “semimonthly” because the employee would have ostensibly been furnished with the wage statement by the semimonthly date.

The court also rejected the plaintiff’s reliance on the California DLSE (Division of Labor Standards Enforcement) Enforcement Policies and Interpretations Manual, which provides, “[a] California employer must furnish a statement showing the following information to each employee at the time of payment of wages (or at least semi-monthly, whichever occurs first),” holding that the Manual is not entitled to deference as an agency regulation because it was not promulgated in accordance with the Administrative Procedure Act. The court also did not find the agency’s interpretation persuasive, finding that the term “whichever occurs first” appears nowhere in the statute, and simply does not make sense given that the statute specifically provides employers a choice of two separate timeframes to issue wage statements:

1) “semimonthly” or

2)“at the time of each payment of wages.”

The Canales decision is certainly one where common sense prevailed. Keep it in mind next time next time you have the final pay, but not the wage statement, ready at the time of termination.

When a Disclosure Form Must “Stand Alone”: Recent Cases Hold Companies Liable for Including Too Much on FCRA Disclosures

Let’s face it. The hiring process involves mounds of regulations, disclosures, authorizations, and then more disclosures. The last thing an employer – or applicant – wants to see is a higher stack of documents filled with legal jargon. Should employers then consolidate disclosures and authorizations to simplify the hiring process?

Not when doing a credit check pursuant to the Fair Credit Reporting Act (FCRA). Recent cases emphasize the importance of employers allowing disclosures to obtain background checks from consumer reporting agencies to “stand alone” from every other document.

The FCRA mandates that employers who seek to procure a consumer report must present “clear and conspicuous” disclosures that are contained in a document that consists solely of the disclosure. This is known as the “stand alone” requirement.

While the FCRA allows the disclosure form to also include an authorization – which is also required before procuring a report – Courts have recently cracked down on employers who include anything extraneous.

For instance, in Syed v. M-I, Ltd. Liab. Co., 853 F.3d 492 (9th Cir. 2017), the Ninth Circuit Court of Appeal held that the inclusion of a liability waiver in the same document as the FCRA disclosure violated the FCRA’s “stand alone” requirement.

The Ninth Circuit further held that violation of this technical requirement is enough of a “concrete harm” to allow the case to proceed in Federal Court where the plaintiff alleged he was confused about the excess language and would not have signed the disclosure otherwise.

In Poinsignon v. Imperva, Inc., No. 17-cv-05653-EMC, 2018 U.S. Dist. LEXIS 60161 (N.D. Cal. Apr. 9, 2018), a District Court recently held that a FCRA disclosure that included references to state law, a URL link to a privacy policy, and an acknowledgment of another document – the “Summary of Rights under FCRA” – violated the FCRA’s “stand alone” requirement.

The Court in Poinsignon underscored the importance of “[p]resenting the disclosure in a separate stand-alone document free from the clutter of other language” to call “consumers’ attention to their rights and to the significant of their authorization.”

And in Lagos v. Leland Stanford Junior Univ., No. 5:15-cv-04524-PSG, 2015 U.S. Dist. LEXIS 163119 (N.D. Cal. Dec. 4, 2015), a District Court held that inclusion of seven state law notices and a sentence stating, “I also understand that nothing herein shall be construed as an offer of employment or contract for services,” plausibly violated the FCRA’s “stand alone” requirement.

Against this backdrop, there has been a considerable uptick in FCRA litigation in recent years. In 2017, FCRA litigation increased over 9% from the prior year.

So far in 2018, FCRA related filings are on pace to increase further.

Employers have also been recent targets of FCRA class action lawsuits alleging violation of the FCRA’s “stand alone” requirement.

For example, on April 20, 2018, Petco Animal Supplies, Inc., asked a Federal Court in the Southern District of California to approve a class-wide settlement of a 2016 lawsuit based on allegations that its web based application contained a FCRA disclosure containing a broad authorization for “any person” to provide “any and all information” to the consumer reporting agency, in addition to information relating to the laws of seven different states. Petco agreed to pay $1.2 million to resolve the claims of approximately 37,000 individuals.

And on April 12, 2018, Frito-Lay, Inc., asked a Federal Court in the Northern District of California to approve a class-wide settlement of a 2017 lawsuit based on allegations that Frito-Lay violated the FCRA’s “stand alone” requirement by including additional language in its FCRA disclosure form including, among other things, a statement that “I have been given a standalone consumer notification that a report will be requested and used [.]” Frito-Lay agreed to a settlement of about $2.4 million to resolve the claims of roughly 38,000 class members.

2018 marks a new opportunity for employers to review and update their hiring forms to ward off FCRA lawsuits.

The “N-word,” the “Black Monkey Girl,” and the “Confident, African American Male”: Workplace Language and Hostile Environment Claims

It is one of the nightmare scenarios for any HR Department or in-house employment counsel: A white employee directing crude, vicious, racially charged slurs at an African-American employee. Perhaps the most inflammatory of such racial epithets is so toxic that it is typically no longer even spelled out in judicial opinions; it is simply the “n-word.” But employees do not limit themselves to that word. A recent case involved an African American employee whose co-worker helpfully translated what Spanish-speaking co-employees had been calling her: the “black monkey girl.” On the other hand, employees sometimes complain about language that does not appear insulting at all. One recent case included the allegation that the phrase “confident, African American male” helped create a hostile environment. So, when does offensive language in the workplace create a viable hostile environment claim?

From an HR perspective, insulting epithets, particularly based on race, gender, or other protected classes, are hurtful, damaging to employee morale, and (hopefully) prohibited by company policies.

From a legal standpoint, however, the impact of such statements is more nuanced. Although it is beyond obvious that no one should ever refer to a co-worker as the “black monkey girl,” the company involved in that case prevailed (in part) in the subsequent litigation. The legal framework of “hostile atmosphere” claims requires an analysis of factors including the following:

  • What actually was said?
  • Who said it, and under what circumstances?
  • How often were offensive remarks made in the workplace?
  • How did the company respond upon learning about the problem?

If the employer can demonstrate that the language, even if offensive, was not “severe and pervasive,” and that the company responded appropriately to employee complaints, the employer has an excellent chance to prevail against claims by the employee. Three recent decisions help illustrate this legal landscape:

In Barbara v. Here North America, LLC, the plaintiff employee was subjected to a supervisor’s use of the “n-word,” in addition to “other racially-charged language,” a sign reading “Colored” being hung above the plaintiff’s work station, and an ineffective response from management. Not surprisingly, the employee successfully staved off the employer’s motion for summary, even though there were statute of limitations problems with some of the claims.

The court applied the following legal standard for a hostile environment claim: (1) unwelcome conduct or comments; (2) harassment based on race (or other protected category); and (3) the harassment was “sufficiently severe or pervasive” so as to “alter the conditions of employment and create an abusive working environment.”

The court found that the conduct described above met the severe and pervasive standard and entitled the employee to a full trial of her claims. The employee was also entitled to proceed with claims that the damaging atmosphere impacted his performance, leading to his termination, and that the termination was a form of retaliation for his complaints about the racially hostile atmosphere.

By contrast, the employer prevailed, at least in part, in Paul v. Saltzman, Tanis, Pittel, Levin & Jacobson, Inc. Paul was a certified medical assistant whose Spanish co-workers referred to her as the “black monkey girl.” The employer, upon being informed of the situation, advised Paul to simply “let it go.” When she continued to complain, she was eventually terminated, in part because of her refusal to “let it go.”

Paul sued for both hostile environment and retaliatory discharge. The court noted that the determination of whether a hostile workplace atmosphere is sufficiently severe and pervasive is not “a mathematically precise test,” and that no single factor is determinative. The court found that the “few isolated instances” of offensive behavior here did not meet the test and dismissed the hostile atmosphere claim. However, the court did allow Paul the opportunity to amend her complaint, potentially reviving the hostile atmosphere case if she was able to provide more facts showing severe and pervasive harassment.

The court also recognized that the retaliatory discharge claim was viable. Given that one reason given by the employer for the discharge was the employee’s refusal to drop a complaint of racial harassment (based on a highly offensive, racially-charged epithet), it is certainly no surprise that the retaliatory discharge claim had sufficient merit to proceed.

Finally, in Yeboah-Kankam v. Prince William County School Board, plaintiff’s claims failed, in part because plaintiff had a lengthy and well-documented record of his own inappropriate conduct, and because the hostile atmosphere claim was based, in part, on the fact that a school district representative had referred to him as a “confident, African American male.” The court pointed out that this was not even offensive language and could not support the claim.

The takeaways from these recent cases include:

  • Offensive language is not only wrong; it is potentially the basis for a valid lawsuit. It should be prohibited by company policies and certainly never used by supervisors or management;
  • Not every complaint identifies truly offensive language. It is never OK to call an employee the “n-word” or the “black monkey girl.” But common sense suggests (and at least one court confirms) that “confident” is still a compliment, not an insult;
  • If instances of offensive conduct do arise, the company must assess how bad they are, how often they occurred, and how best to correct the problem. An aggressive and effective company response is often the best defense in cases of this nature;
  • By contrast, attempts to sweep the problem under the rug only make it worse. Regardless of what a Disney movie anthem might suggest, telling a complaining employee to “let it go” is a terrible idea, and firing her for failing to drop her complaint is even worse.

It May Be A New World For Sexual Harassment, But Many Old Rules Still Apply

In the weeks since allegations began to surface regarding the sexually predatory behavior of movie mogul Harvey Weinstein, sexual harassment allegations (sometimes admitted and sometimes disputed) against powerful, prominent men have been a daily feature of the headlines, involving Oscar-winning actors, sitting and would-be senators, talk show hosts, and numerous other high profile figures. Allegations against the both the current President of the United States and one of his predecessors, while not new, have been the subject of renewed focus.

On social media, the “#MeToo” campaign has featured numerous women coming forward with their experiences as victims of sexual harassment. While the effect of these developments is still evolving, clearly there have been changes in how sexual harassment is perceived and understood, particularly when the alleged perpetrator is not only powerful, but famous. That being said, for an employer assessing potential liability, has the legal landscape for sexual harassment and related claims really changed all that much?

The impacts of this explosion of high profile episodes is potentially far reaching, even for employers far outside the political, entertainment, and media arenas where so many of the recent cases have emerged. Public awareness of sexual harassment issues in general is certainly more pronounced. In many (but not all) situations, the public has treated the allegations as credible, even when raised years or decades after the fact. Not surprisingly, there have also been downsides to the recent uproar, including regrettable attempts to blame or attack victims who have come forward. In one bizarre episode in connection with an ongoing political campaign, a woman apparently attempted to plant false allegations of harassment in the Washington Post, precisely so that they could be shown as false, thus undermining the credibility of the Post and, by implication, of other women whose accusations had earlier been reported there.

But for employers, whether they are high profile media outlets or corner drug stores, sexual harassment involves legal duties and the risk of liability if those duties are not met. Those duties haven’t really changed. The law governing sexual harassment has been developed in state and federal courts for several decades. While the law continues to evolve in certain areas, the basic legal framework and key procedural requirements are well-established. When an employer is actually sued for sexual harassment, those rules, including mundane boring procedural requirements, can be the key to winning or losing the case. Two recent decisions illustrate the fact that the old rules still apply:

In Tudor v. SE. Okla. State Univ., in the United States District Court for the Western District of Oklahoma, the plaintiff’s allegations implicated some cutting edge issues, but the case was decided using fundamental precepts of employment discrimination law. The plaintiff, a college professor, contended that Southeastern Oklahoma State denied her tenure application and then fired her because of her transgender status (she was transitioning from male to female). She also claimed that the University maintained a hostile environment, and that she was retaliated against for raising concerns in the first place.

The University moved for summary judgment, but the court denied the motion. First, regarding a hostile environment claim, the issue was whether the plaintiff alleged a sufficient number of incidents, with sufficient severity, to establish “a work environment permeated with intimidation and ridicule.” In other words, was the environment bad enough to support a legal claim? The plaintiff relied not only on sporadic insults and comments, but also on the fact that every day over the course of a four-year period she had restrictions on which restroom she could use, how she could dress, and what make-up she could wear. She also noted that administrators persisted in using a male pronoun to refer to her even after she considered herself to be female. The court found that that was sufficiently pervasive to survive summary judgment and preserve her hostile environment claims for trial. The court also rejected a defense based on plaintiff’s alleged failure to take advantage of preventive and corrective opportunities at the University. The plaintiff successfully countered this argument by noting that at the time, the University did not have policies prohibiting discrimination on the basis of transgender status. Therefore, there was no effective internal redress available to her.

The court also denied summary judgment on the plaintiff’s claim that the tenure denial and subsequent termination were discriminatory. The court had decided in a previous ruling that transgender status is protected under Title VII. In evaluating the evidence of discrimination, the court applied the familiar three-part framework: (1) plaintiff must demonstrate a prima facie case; (2) the employer must provide evidence of a legitimate non-discriminatory reason for the employment action; and (3) plaintiff must provide evidence that the asserted legitimate reason is actually a pretext for discrimination. The primary dispute concerned evidence of pretext, which the plaintiff satisfied by showing substantial procedural irregularities in the tenure decision, including a refusal to state reasons for the denial of tenure and use of a backdated letter to elaborate on rationales for the tenure denial.

Finally, with respect to the retaliation claim, the court found sufficient facts to show protected conduct followed by an adverse employment action. The application of Title VII and other gender discrimination laws to transgender status is a new and disputed legal issue, but the framework used to analyze such claims is well-established, and the court applied it to determine that the case would go forward.

In another recent case, Durand v. District of Columbia Government, decided by the United States Court of Appeals for the District of Columbia Circuit, the employer prevailed, also by relying on the validity of long-established legal requirements for such claims. The plaintiff contended that he was being retaliated against for prior participation in a large sexual harassment lawsuit that had been decided some years earlier. In dismissing the retaliation and retaliatory harassment claims, the Court of Appeals relied on plaintiff’s procedural failures, including failure to file a proper administrative charge of discrimination with the EEOC and failure to proceed in a timely fashion. The case also failed in part because it was based on employer actions that were not materially adverse to plaintiff’s employment status. Finally, plaintiff failed to show severe or pervasive harassment, which would be necessary to support a retaliatory harassment claim.

Both of these recent decisions confirm that while public perception and understanding of sexual harassment may be experiencing a true revolution, in litigation both the employer and the employee must comply with largely well-established legal doctrines to determine who actually wins the case.

A New Question Every Week

Nearly every day, executives and managers, and the in-house counsel and Human Resources professionals who work with them, are confronted with unanticipated questions regarding the workforce. Just when they think they have "seen it all," along comes a new and often stranger scenario involving an odd twist to an area they thought they fully understood. These individuals often find themselves back at square one when trying to construct an appropriate response and devise a creative solution to the problem presented. Sometimes these "Quirky Questions" can be resolved easily; other times, they implicate practical and legal issues that are not immediately apparent. This Quirky Questions blog addresses these unanticipated employment questions.

We encourage you to submit your thoughts and reactions to the questions presented. We also encourage you to submit questions that you would like to see addressed, subject to these guidelines.

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