‘Til it happens to you, you don’t know how it feels
‘Til it happens to you, you won’t know, it won’t be real.
– Lady Gaga
Few topics have received more media focus in recent months than the renewed attention on sexual harassment through the #MeToo and #TimesUp movements.
The report that Dallas Mavericks owner Mark Cuban will donate $10 million to women’s organizations following a lengthy investigation into the company’s culture brings #MeToo quite close to home. The investigation began after Sports Illustrated broke a story detailing multiple allegations that high-ranking Mavericks employees fostered a workplace environment with rampant sexual harassment.
The news of Cuban’s agreement to donate four times the amount of the fine that could have been levied by the NBA was accompanied by the release of the detailed investigative report prepared by the law firms Krutoy Law PC and Lowenstein Sandler LLP.
‘Serious Workplace Misconduct’
The 43-page report details the results of 215 witness interviews and a review of 1.6 million documents. The report concluded that the Mavericks were guilty of “serious workplace misconduct by former and current employees” and “improper or ineffective management.”
It concludes with 13 recommendations that all employers would be wise to review, including guidance to improve harassment reporting processes. Additional recommendations emphasized developing systems to evaluate, and hold accountable, all executives, managers, and supervisors on their efforts to eliminate harassment and improve diversity of all kinds throughout the organization – as well as providing consistent, prompt, and proportionate discipline when allegations of harassment or misconduct have been substantiated.
The report provides a thorough primer on what employers should, and should not, do when faced with allegations of workplace misconduct.
Needless to say, the Mavs weren’t the first – and probably won’t be the last – organization to be affected by the #MeToo movement.
In early October, Hollywood producer Harvey Weinstein was fired from his namesake company after multiple women accused him of rape, sexual assault and sexual harassment. Within 90 days, at least 71 high profile men have been fired or forced to resign following accusations of sexual misconduct, ranging from inappropriate comments to rape.
Former CBS head Les Moonves is the most recent high-profile executive to be ousted in the wake of a New Yorker report that accused Moonves of sexual misconduct, harassment, intimidation and abuse involving at least 6 women. When a subsequent report detailed claims from six additional women, Moonves’s $100 million exit package was placed on hold pending the results of an independent investigation, and a portion of the amount he would have received is reported to be donated to organizations whose mission focuses on sexual harassment and assault.
State Legislatures Respond
A complaint of sexual harassment in the workplace is often met with a range of responses. Co-workers may band together with a #MeToo refrain. The accused may respond with #NotMe. Human resources staff may silently think #WhyMe. With increased public outcry for changes in the law, legislators may be thinking #NowWhat.
State legislatures are beginning to address the # MeToo fallout, with several enacting new laws that place limits on nondisclosure agreements (NDAs), improve rape kit testing practices, extend applicable statutes of limitations, and address their own policies for dealing with workplace harassment.
New York was one of the first to act, rolling out a comprehensive anti-harassment legislation package in April 2018. New York City quickly followed in May with its own anti-harassment provisions that mirrored the state law. Key points of the New York laws include:
- Expanded protections for non-employees and employees of small employers. New York’s anti-harassment laws cover contractors, subcontractors, consultants, vendors, and others providing services under a contract. The New York City law has expanded anti-harassment coverage to all employers, in contrast to Title VII protections that only apply to employers with 15 or more employees;
- The New York City law expands the statute of limitations period for filing an administrative charge from one year to three years (the New York state law limitations period remains at 1 year).
- Effective July 11, 2018, New York prohibited NDA provisions in agreements settling claims of sexual harassment, unless it is the “complainant’s preference.” Required language, similar to that found in releases for age discrimination claims, must give the employee 21 days to review the agreement and 7 days to revoke it.
- Also, effective July 11, 2018, New York prohibited employers from requiring individuals to arbitrate sexual harassment claims (excluding collective bargaining provisions). However, this law may be illusory in practice, as it will not apply to the extent it is inconsistent with federal law, and the Federal Arbitration Act strongly favors enforcement of arbitration agreements. Based on the Supreme Court’s recent reaffirmation of its arbitration preference in the class action waiver context, the New York prohibition on arbitration for sexual harassment claims may be short-lived.
- New notice requirements – effective September 6, 2018, all New York City employers most post an anti-sexual harassment rights and responsibilities poster and give new employees an information sheet when hired.
- Effective October 9, 2018, New York state law will require all employers to adopt a model anti-sexual harassment policy and training program that meets or exceeds the legislative standards.
Other states have enacted anti-sexual harassment in the wake of the #MeToo movement or are considering legislation similar to New York’s. Washington lawmakers recently approved a package of bills targeting NDAs, including SB5996, which prohibits employers from requiring employees to sign an NDA that would prohibit discussion of workplace sexual harassment or sexual assault. The law does not prohibit NDA provisions in settlement agreements. Washington also expanded the coverage of its sexual harassment law to explicitly cover incidents that occur at work-related events off company premises.
New Arizona legislation clarifies that NDAs will not prohibit sexual harassment victims from participating in criminal proceedings relating to their abuse but can still be used at hiring. The sponsor of the Arizona bill has stated the case against Olympic gymnastics doctor Larry Nassar showed how NDAs were being used to silence victims, with one gymnast reportedly facing a six-figure fine for testifying against him in court. California, Louisiana, Massachusetts, New Jersey, South Carolina, and Virginia are also considering NDA legislation.
Alaska recently appropriated nearly $3 million to have its backlog of more than 3,400 rape kits tested by private labs. In North Carolina, however, the legislature denied funding for a similar project.
New laws in Michigan extend the statute of limitations in certain types of civil and criminal sexual assault cases, including extending the civil statute of limitations from two to ten years for adult victims. Connecticut and California have similar bills pending.
An Ounce of Prevention…
Employers must be vigilant regarding quickly evolving legislative developments, evaluating their policies, practices and agreements, as the legislative response to the #MeToo movement is just getting started.
Anti-harassment and nondiscrimination policies must be current, clear, and specifically prohibit retaliation. Employers should invest in updated training of HR professionals and managers regarding how to address sexual harassment issues.
For more information about how post-#MeToo legislation can affect your workplace, contact a Clouse Brown attorney for assistance.