Webinar: How Arbitration Restrictions Will Affect Employers

Please join me and two of my law partners, Rhonda Klein and Paul Oliver, this Friday, March 4 for a free Webinar in which we will discuss the implications of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.

On February 10, 2022, the U.S. Senate joined the House expanding the litigation rights of “Me-Too” harassment victims. The implementation of this legislation will directly impact the way that sexual harassment and sexual assault allegations in the workplace are resolved, how they can be addressed in employment agreements, and, initially, it may increase the number of harassment cases brought in court. Wimberly Lawson believes it is important for our clients to understand the importance and ultimate applications of this bipartisan legislation and how it would affect their individual roles and employers.

To register:

https://wimlaw.us19.list-manage.com/track/click?u=c2eb2ce3e55917cf081f4b573&id=9e506bab95&e=e6f09d75d6

What Does the New #MeToo Inspired Law Mean for Business?

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By Kathleen J. Jennings (kjj@wimlaw.com)

A rare bipartisan effort has brought us a new federal law that was enacted in response to the #MeToo movement. This new law will prohibit companies from forcing employees to use arbitration, rather than the courts, to resolve cases involving sexual harassment or sexual assault in the workplace.

Why do we need this new law? Many people have complained that forced arbitration tends to unfairly favor businesses and keep these types of claims out of the public eye. Businesses generally favor arbitration over jury trials for a number of reasons, including the cost, length of time to resolve claims, and less emotion influencing the result.

As of the effective date of this law, companies will be unable to enforce written arbitration agreements that require employees or former employees to resolve claims of workplace sexual harassment or sexual assault through the arbitration process. This will make these types of claims much more attractive to plaintiff’s lawyers because the monetary value of these cases, especially egregious ones, will increase substantially.

Pro Tip: Now is a good time for businesses to review their policies and procedures that prohibit harassment in the workplace. And when is the last time that you have done any harassment prevention training? It is not enough to talk to employees and managers about harassment at orientation and never bring it up again. Rather, your business should be taking regular affirmative steps to prevent workplace harassment.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2022 by Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Who is the Equal Opportunity Harasser and Why Do We Care?

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Who is the Equal Opportunity Harasser? It is the person who asks both men and women questions about their favorite sexual positions. The person who tells jokes that offend pretty much every ethnic group. The manager that screams at everyone and takes special delight in making employees cry. Basically, this is a person who is a complete jerk and a bully.

Why do we care?  From a legal standpoint, the “equal opportunity harasser” is a defense raised by employers to charges and lawsuits alleging harassment.  The gist of the defense is that because the equal opportunity harasser offends everyone, a plaintiff cannot prove that he or she harassed a particular individual because of sex, or race, or some other characteristic protected by Title VII.  Some federal courts have utilized this defense to absolve employers from liability for harassment in the workplace.  See, e.g., EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498, 508 (6th Cir. 2001) (explaining in a sex harassment case that “‘Title VII does not cover the ‘equal opportunity . . . harasser'” “because such person is not discriminating on the basis of sex.'” (internal citation omitted)). 

Now, many attorneys and scholars are questioning the continued validity of the equal opportunity harasser defense after some language contained in the U.S. Supreme Court’s ruling in Bostock v. Clayton County (the recent LBGTQ rights case) seems to cast doubt on it. Specifically, Justice Neil Gorsuch wrote:

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. 

In other words, as my Mother always said, “two wrongs don’t make a right.”

Some attorneys and legal scholars are skeptical that the equal opportunity harasser defense has been completely eviscerated by the Supreme Court.  They argue that Title VII does not prohibit indiscriminate bullying in the workplace. 

We’ll need to wait and see how the lower courts interpret Justice Gorsuch’s language.

In the meantime, even if the equal opportunity harasser defense lives on, that does not necessarily mean that employers should tolerate the equal opportunity harasser.  Do you really want to have a workplace where folks dread coming to work every day because they expect to be yelled at or belittled? Where employee morale is low and employee turnover is high?  Is the equal opportunity harasser worth those costs?

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2020 Kathleen J. Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.