It occurs to me that a more positive, not-everything-is-bad post is in order. My past posts have addressed the employee-employer imbalance of power, advocated an end to mandatory arbitration, and criticized the Senate version of the proposed, revised Congressional Accountability Act. However, progress has nonetheless been made these past months (at least I think so) and so it makes sense we take stock.

Jodi Kantor, of the (failing) New York Times [yes, that is a joke: relax!] attempted to do just that, take stock, back in March. Her article highlights a variety of actions taken by companies, cities, states and the federal government in response to the #metoo movement and society’s possible awakening. While Ms. Kantor’s assessment was certainly not all positive – much (most) work remains, much of it at a societal level – she nonetheless pointed to some bright spots. One success was Microsoft’s announcement, late last year, to get rid of forced arbitration in its employment agreements. Another was the Screen Actor’s Guild (“SAG”) publishing an updated Code of Conduct. Even if you are not a waiter/actor in LA, this is an interesting read, especially for newbies. SAG’s Code defines some basic terms (e.g., quid pro quo, hostile work environment, retaliation) and educates actors and employers on what to expect when a complaint is filed, as well as provides resources to employees.

But I am singling out Facebook for further analysis and some praise (God knows, it needs it). In December 2017, Facebook took the somewhat unusual step and put its internal policy online for all to see. In the announcement post COO Sheryl Sandberg declared Facebook’s “philosophy” was to go beyond what was legally required – not too hard, unfortunately- and to enforce a zero-tolerance approach. Undergirding the policy are the following six principles: 1) mandatory sexual harassment and unconscious bias training; 2) treating all claims with “seriousness, urgency, and respect”; 3) investigating claims in a way that protects employees from stigma or retaliations; 4) applying the process consistently; 5) taking “swift and decisive action” when wrongdoing is identified; and 6) involving all employees in making the workplace safe by encouraging people to report unacceptable behaviors, even if it does not involve them.

The Facebook policy is a real treasure-trove for commentary and analysis and over the next few posts, I aim to highlight some of the encouraging parts, compare it against the company’s stated philosophy and principles, and give you my two-cents on what (if anything) might be problematic or objectionable.

If you have time, read over the Facebook policy and stay tuned.

On June 25, 2018, the U.S. Court of Appeals for the 11th Circuit issued its opinion in Wilcox v. Corrections Corporation of America in favor of the employer in a Title VII sexual harassment claim. The 11th Circuit affirmed the district court’s granting of the employer’s Rule 50 Motion for Judgment as a Matter of Law (“Rule 50 Motion”) after a jury returned a verdict for the employee, Felicia A. Wilcox, of $4,000 in actual damages and $100,000 in punitive damages. The 11th Circuit Court of Appeals agreed with the employer, Corrections Corporation of America, that the employer could not be held liable because it took prompt remedial action after Ms. Wilcox complained about the harassment.

Helen H. Albee, one of Ms. Wilcox’s attorneys, was surprised that the 11th Circuit followed what the district court did and were “unconcerned with the amount of factual analysis the district court did on the Rule 50 motion.” Ms. Albee noted that after the jury’s verdict, the district court did “a lot of re-weighing the evidence the jury did already.” Let’s take a look at the facts and what happened in this case.

What Happened and When?

Ms. Wilcox alleged that a coworker, Larry Jackson, slapped her buttocks twice, squeezed her thigh, and made sexually explicit remarks on different occasions. When Ms. Wilcox filed a complaint with her employer, the employer took the following steps:

  • The employer ordered Jackson not to be around Ms. Wilcox immediately, but nonetheless he rolled his eyes at her repeatedly and punched a metal machine in front of her to intimidate her;
  • After Ms. Wilcox made a second complaint to the employer about prior sexual harassment incidents and her fear that he would touch her again, the employer’s investigator interviewed Ms. Wilcox 6 weeks after her first complaint;
  • The employer’s investigation included interviews with 16 other employees that resulted in sexual harassment complaints against Jackson by other employees;
  • 8 weeks after Ms. Wilcox’s complaint, the employer’s investigator found that Jackson sexually harassed Ms. Wilcox and other employees; and
  • The employer terminated Jackson five days after the investigation report.

Knowledge + No Prompt Remedial Action = Employer’s Direct Liability

An employer can be held liable for a hostile work environment claim through either vicarious or direct liability. If the harasser is not the victim’s supervisor, an “employer will be held directly liable only if it knew or should have known of the harassing conduct but failed to take prompt remedial action.” Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278 (11th Cir. 2002). Wilcox argued that her employer should have known about Jackson’s additional harassment after she complained about him because he would inappropriately hug female employees and make intimidating looks and gestures toward Ms. Wilcox after her first complaint. The 11th Circuit didn’t think the harassment was sufficiently pervasive to impute knowledge to the employer because (1) Ms. Wilcox didn’t report the hugging or intimidating conduct; (2) there wasn’t any evidence that the hugging was widespread or considered offensive; and (3) the employer’s anti-discrimination policy was well-known and vigorously enforced.

As for the employer’s “prompt remedial action,” the 11th Circuit held the employer’s action was effective “and a reasonable jury would not have a legally sufficient evidentiary basis to find otherwise.” Wilcox v. Corr. Corp. of Am., No. 17-11919, 2018 WL 3099892 (11th Cir. June 25, 2018). The only prompt action that seemed to occur here was ordering Jackson to stay away from Ms. Wilcox. Nine weeks is a long time to be working alongside a harasser who is being physically intimidating without saying a word. During oral argument, the employer’s attorney argued that Jackson’s termination within 5 days of the report concluding sexual harassment occurred and investigation into numerous other allegations showed that the ends justified the means because “the investigation was reasonable under the circumstances.” The 11th Circuit reasoned that a jury could not find that the employer failed to act promptly because “there were a lot of moving parts in the company’s investigation, and each of those workings took time” and “culminated in Jackson’s termination.” Wilcox, No. 17-11919, 2018 WL 3099892 (11th Cir. June 25, 2018).

Many employees want to know what is going on with the company’s investigation after lodging a sexual harassment complaint. Working alongside a harasser while an investigation is ongoing can be excruciating, but many employers don’t keep the victim apprised of the investigation. While taking six weeks to interview a victim scarcely seems “prompt,” a court may conclude otherwise if the investigation is complicated and results in the harasser’s termination. If you are experiencing sexual harassment at work, an attorney can help you understand your rights and guide you through the pre-litigation phase.

You may have a situation where not only you have been the victim of sexual harassment in the workplace, but your coworkers may also have had other negative experiences with the same employer. Can all of you jointly sue the employer for workplace sexual harassment in what is called a class action or collective action?

It depends. If you and your coworkers each have an employment contract with the offending employer, the fine print may contain an arbitration clause that prohibits bringing a class action against your employer. What does having an arbitration clause mean? It means that any dispute you have with your employer must be resolved one-on-one in a private setting by a neutral arbitrator or panel of arbitrators. The arbitrator(s) may be selected by your employer or jointly by you and the employer from a list of arbitrators. You may have given up the right to file a complaint in state or federal court, where a jury of your peers decides the merits of your claims. Theoretically, it is more favorable to have your claims resolved by a jury than an arbitrator or arbitrators selected by your employer.

The Epic Systems Corporation v. Lewis Decision

The Supreme Court of the United States in Epic Systems Corporation v. Lewis, recently considered whether employment contracts that require one-on-one arbitration for resolving disputes are enforceable if their effect is to prevent several employees from jointly suing their employer. The opinion began with the following questions:

Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective        ac­tions, no matter what they agreed with their employers?

The employees involved in the Epic Systems case argued that the National Labor Relations Act (“NLRA”), which secures employees’ right to organize unions and bargain collectively, gave them the right to collective action. The employers argued that the Federal Arbitration Act permitted a bar to collective legal action. The Supreme Court, in a 5-4 opinion penned by Justice Neil Gorsuch, held that the NLRA does not give employees a right to class actions. Rather, the Federal Arbitration Act provides that arbitration agreements must be enforced according to their terms—including terms providing for individualized arbitration.

Fatima Goss Graves, President and CEO of the National Women’s Law Center, released the following statement on the day the Supreme Court issued its opinion in Epic Systems:

Fatima Goss Graves, National Women Law Center’s President and CEO

“Today, the Supreme Court has taken away a powerful tool for women to fight discrimination at work. Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft, and more, employees may now be forced behind closed doors into an individual, costly – and often secret– arbitration process. This will stack the deck in favor of the employer. For all working people, the right to join a class or collective action is an indispensable tool to advance fairness, justice, and equality at work. For women workers, however, the stakes are particularly high. Women often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it. As mandatory arbitration is forced on growing numbers of employees as a condition of employment, the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”

In Florida, if you are a non-union employee, have an employment contract, or mandatory arbitration is a condition of your employment, then your ability to sue your employer along with your coworkers for workplace sexual harassment is limited by the Epic Systems decision. Not all arbitration clauses are written the same and some companies are e-mailing their arbitration agreement to employees and telling them that if they continue to be employed there, they are deemed to have accepted the terms. If you and your coworkers are experiencing sexual harassment, you should seek legal counsel to determine whether you are restricted from raising a workplace sexual harassment claim as a class action. We are here to help you figure out the available legal avenues if you find yourself in this situation.

So, the last time I discussed the 15 Key Steps employers should take, according to AllBusiness.com, to respond to sexual harassment claims, I mentioned “lawyering up” and being “fair” (as well as, perhaps more importantly, “appearing fair.”)

Minimizing access to information

I want to pick up with one theme I briefly touched upon the last time, an idea either implicitly or explicitly expressed in most of the 15 employer-tips: in responding, the employer should (a) minimize creating potentially damaging evidence and (b) make it more difficult for the victim to have access to potentially relevant information. Two examples illustrate these goals.

First, in Step #5 on “taking appropriate action,” the attorney author throws in, almost as an aside, that

[i]t is important to document the discipline carefully, although specifics about the investigation should not go into personnel files.

(emphasis added) I am sure that, depending upon who you ask, there are several reasons for this; and, perhaps some of them are even legitimate. But, surely one of the real reasons for this advice is that the personnel files are much easier for employees to access and, therefore, they would be easier to provide to a plaintiff’s attorney to assist him or her in evaluating the case. Keeping the investigation findings separate from the personnel file adds another layer of protection from future discovery. I am not saying the investigation and underlying material won’t be discoverable – it very well could be – but keeping it separate from the personnel file adds a further complication; a future plaintiff’s attorney must first determine the materials exist and then obtain them.

Minimizing damaging evidence

And second, tip #10 is disarmingly honest and aims at minimizing damaging evidence: “Be careful with texts and email.”

The evidence code contains a so-called “hearsay exception” for an “excited utterance,” something that someone blurts out in the moment, when emotions are running high (e.g. right after a car crash). [Sidebar: for non-lawyers, hearsay is lawyer-speak and means that the rules of evidence often prevent witnesses telling the judge or jury what another person said to them.] If you are curious, the excited utterance exception is § 90.803(2) Fla. Stat. and can be found here. The idea behind this “excited utterance” exception is that people are more likely to be truthful in the moment, when they have not had time to reflect on the situation and decide what is in their best interest to say.

This is similar to what the author is trying to get employers to minimize. She is telling the bosses-of-the-world to hold their fire on emails and text messages in the hours and days after the victim makes his/her allegation, or after the situation first comes to their attention. Put cynically, the advice is that the employer might be too honest in the moment, that he/she might reveal too much. So, the advice is to pick up the phone and refrain from putting anything in writing, especially when texts and emails are so easy to shoot off and will then be out there, as a great record for plaintiff’s attorneys to mine when ligation ensues.

Why am I telling you all this? Well, for one thing it’s important to realize what advantages (both structural and tactical) employers have, and to develop an awareness for them. After all, how can you hope to address and overcome them if you don’t know they exist. Also, every once-and-a-while what appears like an advantage for the other side can turn out to be, if not a liability, then at least an opening to exploit.

Of the many advantages employers have over victims of sexual harassment, perhaps none matches the power to compel victims to arbitrate, for them to forgo the opportunity of a lawsuit in state or federal court.

Sidebar: if you don’t know, arbitration is a kind of private court, where one (or more) arbitrators act as quasi judges. Often, employment contracts will have language in them requiring the employees to arbitrate work-related disputes, including allegations of sexual harassment. Depending upon which side you ask, you will get very different reactions to whether arbitration is a good thing. According to the American Arbitration Association, arbitration is “faster and more cost effective than litigation.” Unsurprisingly, employers generally agree with this assessment; after a few beers they might even admit arbitration, on balance, strongly favors employers. But, even if we accept the speed-cost premise (for argument’s sake), sexual harassment victims seeking redress may not benefit from speed and efficiency.

The attorneys general of every single U.S. State seem to think so anyway. In a February 12, 2018 letter to Congress – spearheaded by our very own Attorney General Pam Bondi – the attorneys general unanimously concluded that

[w]hile there may be benefits to arbitration provisions in other contexts, they do not extend to sexual harassment claims.”

Why? Because arbitrators “are not positioned to ensure that such victims are accorded both procedural and substantive due process.” Now, that is quite a statement coming jointly from representatives of deep-red (aka employer-friendly), as well as blue states. The letter also highlights the deleterious effect that secrecy – many arbitrations are secret – can have on society at-large because the scope of the problem is swept under the proverbial rug.

So, will we see some change? I frankly have no idea . . . the Arbitration Fairness Act of 2018 was introduced in Congress last month. The bill purports to prohibit arbitration in employment, consumer, antitrust and civil rights disputes. But, as even casual observers of the congressional sausage factory will tell you: it is a long way from bill to law. The #metoo movement was clearly the impetus for the bill. We will just have to see if the will remains when the topic of sexual harassment has faded from the headlines.

If you want to get a flavor for how employers around the country are responding to the #metoo movement, with its accompanying increase in reported incidents of sexual harassment at work, look no further than these 15 steps provided by an employment attorney to AllBusiness.com

To be fair, some of these steps (if performed in good faith) are beneficial to victims of sexual harassment and intended to help resolve the issue. For instance, who can take issue with the advice to “promptly and thoroughly investigate.” But my larger take-away was the degree to which employers are stacking the deck against the employee that wishes to seek legal redresss.

“Lawyer up.”

This starts with the #1 advice to employers: “Lawyer up.” The company is advised to involve experienced outside counsel early, and to “take the appropriate steps to ensure that communications with executives, Board members, and employees are protected by attorney-client privilege.” In other words, make sure your lawyer is in the room with management and the relevant players whenever anything related to the victim’s claim is discussed. Also, employers are advised to limit the contact of outside counsel to only those people that need to know, as well as to include legal disclaimers on attorney-client confidentiality and the so-called work product doctrine in their emails with counsel. In short, the goal is to limit, early on, the amount of information that the victim employee can get at for use in court.

Fairness: Fair is Good, Appearing to Be Fair is Also Ok….

But my personal favorite is probably the tip provided in investigating the victim’s allegations: “Fairness is important. The investigation must be evenhanded, and both be fair – and appear to be fair – to all involved.” (emphasis original). I love the authors emphasis here. The not-so-subtle-message, especially in the context of all 15 recommended steps for the employer to take to protect itself, appears to be that while the company should strive to resolve the situation with an eye toward the truth, it should do so while accumulating a defensive paper trail (e.g. confidential communications, investigative reports that “appears” to be fair) to nip lawsuits in the bud.

Employers undoubtedly have many significant advantages over most employees, both structurally and in terms of their war chest. But it’s not all doom-and-gloom. If you experienced sexual harassment at work and are thinking about taking action, the earlier you discuss it with an attorney, the better. If the employer is lawyering up, you should too!