Happy International Women’s Day! This year’s theme is building a gender-balanced world. The #BalanceforBetter campaign will continue for the rest of 2019 to inspire women and men to strive for a “gender-balanced boardroom, a gender-balanced government, gender-balanced media coverage, a gender-balance of employees, more gender-balance in wealth, gender-balanced sports coverage . . . .” Better balance between the genders is a timely theme because sexual harassment is a symptom of the power imbalance between the genders. The Institute for Women’s Policy Research found that working in a male-dominated environment and working in a setting with significant power differentials are two of several employment situations associated with high rates of sexual harassment and assault. For example, 1 in 4 active duty service women experienced sexual harassment or gender discrimination.

www.rainn.org

The power imbalance shows up in all types of workplace scenarios. If you haven’t watched the RAINN #ThatsHarassment videos, I recommend you watch them. The videos are based on real incidents of sexual harassment in a law firm, a bar, a photo shoot, and a TV show set. When I first saw these videos, the common thread I noticed wasn’t just the sexual harassment, it was the balance of power. The harassers in these videos had significant advantages over their victims in these scenarios. The bartender gets harassed by a male co-worker tasked with training her on the first day of work, the young model was pushed past the boundaries of what’s appropriate in a room full of people who didn’t stop the older and experienced photographer, the new junior employee alone in the office with the boss, and the costume dresser dealing with a famous actor’s bad behavior were all in vulnerable positions when the harassment occurred. Each one of these victims may have asked themselves,

If I report this, will I lose my job?”

A common question that comes up when a sexual harassment story hits the news is “why didn’t she report it sooner”? Fear of losing her job is a big reason, being passed over for a promotion, losing her credibility, and being blackballed because she spoke up against an abuser in a powerful position are also reasons women stay quiet. If more women occupy the same positions as the men in the #ThatsHarassment videos and in leadership positions, we can hope for more respectful workplaces that bring full equality to women. Until then, the same power imbalance in American culture will continue to lend itself to situations where powerful men will harass vulnerable women.

If you think you have been the victim of sexual harassment, you should discuss your story with an attorney who can guide you. Our attorneys can assist you at any stage. Please contact us to set up a confidential consultation.

The #MeToo movement has brought many things to light over the last year along with a lot of questions about what is considered sexual harassment and what to do about it. If you are interested in learning more about these issues, Lapin & Leichtling, LLP will be hosting a Lunch & Learn on March 19, 2019. We’ll be talking about how to recognize and respond to sexual harassment in the workplace. Lunch is free and space is limited, so please RSVP if you would like to attend.

Date: March 19, 2019

Time: 12:00 – 1:00 p.m. We will be starting promptly at 12 p.m.

Location: Lapin & Leichtling, LLP, 255 Alhambra Circle, Suite 1250, Coral Gables, FL 33134. Visitor parking is available on the ground floor of the parking garage behind the building or on the street.

RSVP and Questions: AJanderson@LL-Lawfirm.com or (305) 569-4100.

The Fourth Circuit Court of Appeals in Ray v. International Paper Company, released on November 28, 2018, overturned a lower federal court’s decision to dismiss Tamika Ray’s sexual harassment, hostile work environment, and retaliation claims against her employer, International Paper Company, for lack of sufficient evidence to support her claims. The FourthCircuit found Ms. Ray had presented sufficient evidence to survive summary judgment and to allow a jury to decide her claims.

Tamika Ray worked as a “bundler’ and then promoted to the position of “operator” at International Paper Company, which manufactures and distributes packaging boxes. Johnnie McDowell was Ms. Ray’s supervisor in both positions. One year after Ms. Ray began working, Mr. McDowell started asking Ms. Ray to engage in sexual activity and offered her money in exchange for those sexual acts, in addition to making several overtly sexual comments to her. On one occasion, he grabbed her thigh while the two were alone in his office. Several years after the conduct began, Ms. Ray reported it to two other supervisors, but asked that they not report to higher authorities for fear of retaliation. When Mr. McDowell found out that Ms. Ray had complained about his conduct, he informed Ms. Ray that she could no longer perform voluntary overtime work before the beginning of her shifts, for which she would get paid time and half. This voluntary overtime work represented a significant portion of her income.

When a supervisor, such as Johnnie McDowell, is the harasser and the harassment culminates in a “tangible employment action,” an employer like International Paper Company is strictly liable. Tamika Ray had to show that action taken against her was “tangible,” by demonstrating

that any action taken against her was ‘tangible,’ such that the action constituted a ‘significant change in employment status,’ and that there was ‘some nexus’ between the harassment and the tangible action taken.”

The Fourth Circuit held that the opportunity to work voluntary overtime that was taken away from her could constitute a tangible employment action. The Court also recognized that Mr. McDowell was responsible for the decision to eliminate Ms. Ray’s voluntary overtime work, creating a sufficient nexus between the ongoing harassment and the decision to deny voluntary overtime work. The Seventh Circuit overturned the lower court’s decision, which had dismissed Ms. Ray’s claim because of lack of sufficient evidence that the harassment culminated in a tangible employment action.

As to Ms. Ray’s retaliation claim, the Fourth Circuit also held that she had sufficient evidence to show that she suffered an adverse employment action after having reported the harassment to other supervisors, and that a jury reasonably could determine that Mr. McDowell retaliated against Ms. Ray after learning she had complained about him to other supervisors. Thus, there was enough evidence for a jury to reasonably find that International Paper Company was strictly liable for Mr. McDowell’s acts.

If you have been the victim of workplace sexual harassment perpetrated by a supervisor, and have experienced retaliation for reporting the misconduct, you should discuss your story with an attorney who can advise you of your legal rights. Please let us know if we can help.

The world’s third largest airline has been accused of failing to protect a female flight attendant from years of harassment by a male pilot. The Washington Post reports that the Equal Opportunity Employment Commission filed a lawsuit in federal court in Texas last week, alleging that the airline refused to take action against a pilot who posted compromising photos of the attendant online, even after she complained to her superiors and the pilot was arrested for stalking (here is a PDF of the Complaint). The EEOC issued a statement on the lawsuit.

Consensual Relationship, Photos, and an Injunction

The Post reports that the woman, who is not identified in the complaint, began a consensual relationship with United pilot Mark Uhlenbrock in 2002, and allowed him to take pictures and record video of her in provocative poses.  She ended the relationship in 2006 when she discovered that Uhlenbrock had posted the pictures on a website for swingers without her knowledge and refused to stop.  The harassment, however, was just beginning.  Over the next decade, Uhlenbrock continued to post the pictures and videos on the internet, including partially nude images of the woman in her uniform, and listing her name, occupation, and home airport.  The Post reports that she filed at least three lawsuits against Uhlenbrock, obtaining a $100,000 damages award and a permanent injunction barring Uhlenbrock from posting the images.  The FBI became involved when he continued to post the images, ultimately arresting Uhlenbrock in 2015 for stalking. He later pleaded guilty and was sentenced to 41 months in federal prison.

No Action from United Airlines

The EEOC’s complaint focuses on United’s response, or lack thereof.  According to the suit, the woman reported the harassment to United’s human resources department and general counsel on several occasions, but the company refused to take action.  Amazingly, the airline allegedly told the woman the Uhlenbrock’s conduct did not constitute workplace sexual harassment and did not warrant intervention or action by the company.  The EEOC alleges that this to prevent and correct Uhlenbrock’s conduct violated Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on sex, which includes sexual harassment.  The complaint notes that Uhlenbrock had supervisory authority over flight attendants, and that the airline had rules of conduct, disciplinary mechanisms, applicable policies and procedures, and the authority to prevent and correct Uhlenbrock’s harassment.  Perhaps most disturbingly, United allegedly granted Uhlenbrock long-term disability following his arrest, and allowed him to retire with full benefits following his guilty plea.

The complaint, which was filed after the EEOC attempted to reach a voluntary settlement through its conciliation process, asks the court to order United to pay compensatory and punitive damages to the flight attendant, and permanently enjoin the airline from engaging in further gender-discriminatory practices.  The EEOC also asks the court to order the company to create and carry out policies and practices that eliminate and prevent sexual harassment in the workplace.

In the EEOC statement, Supervisory Trial Attorney Eduardo Juarez notes that “United was aware of the intimate details of how its pilot was harassing its flight attendant, but took no responsibility to put a stop to it. As a result, over a period of many years, the flight attendant had to work every day in fear of humiliation if a co-worker or customer recognized her from the pilot’s postings. This is unacceptable, and the EEOC is here to fight such misconduct.” According to the Post’s report, a United spokesman disputed the EEOC’s allegations, and claimed that “United does not tolerate sexual harassment in the workplace and will vigorously defend itself against this case.”

We will continue to follow this story as it develops.

Beyonce, as usual, is making headlines with her September issue of Vogue and a candid interview with her thoughts on all sorts of topics, including, the legacy she wants to pass on to her kids. She wants her daughters to see themselves in books, films, as CEOs, and knowing that they don’t have to fit a certain mold. When it comes to her son, she says:

I hope to teach my son not to fall victim to what the internet says he should be or how he should love. I want to create better representations for him so he is allowed to reach his full potential as a man, and to teach him that the real magic he possesses in the world is the power to affirm his own existence.”

This quote led me to think about how toxic masculinity (and femininity) influences our lives and our roles at work, home, school, and in our communities. I certainly can’t answer what it’s like to be a man, but I don’t think men and women should feel confined to play certain roles and fulfill stereotypes to be “quiet and nice” or “strong and stoic.”

How do men and women work together to turn things around?

There is a treasure trove of answers and thought-provoking questions in the Man Enough online series that is the start of a very important dialogue. In the series, a group of men openly discuss what it means to be a man, be vulnerable, and #metoo. The men in the series recognize that the concepts of masculinity in American media ingrain misogyny in boys and girls from an early age. So much so that almost all the men in the series have witnessed harassment or assault and failed to intervene even though they consider themselves good guys. In the #metoo episode, Tony Porter, the CEO of A Call to Men says that he thinks “It’s really rooted in how the law is defined. You could do some crazy s—- and be on the side of the law, right?” Yes, he’s right in the sense that employers and harassers got away with sexual harassment and retaliation against women for coming forward for a long time (and still do sometimes), mostly because there weren’t any real legal consequences until Title VII came along, but sexual harassment continues despite the legal remedies that exist at the state and federal level. Legal remedies by themselves are insufficient to effect change in the absence of a shift in culture. If women aren’t comfortable coming forward, there won’t be any cases against harassers and/or their employers.

Social consequences

#Metoo is the dawn of social consequences for bad behavior. Will #metoo lead to legal consequences? We will have to wait and see. If we give boys the space to ignore what the internet says boys and men should be and allow them to affirm their own existence, will misogyny begin to disappear? This won’t be my last post on this complicated topic, so 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.

A new lawsuit involving non-lawyer employees at Dentons, the world’s largest law firm, reiterates that there is no area of society immune from sexual harassment issues, and that a company’s response to allegations against an employee deserves as much scrutiny as the underlying behavior. Above The Law and the ABA Journal Blog outline the allegations leveled by Kruanli Parekh, a Business Development Specialist, against Alton Delane, the Managing Director of Dentons’ Venture Technology Group.  Law.com and Bloomberg’s Big Law Business Blog also have reports.

Allegations of Inappropriate Touching and Vulgar Language

Parekh’s Complaint alleges that Delane treated her as a sex object, using vulgar language, trying to draw her in to sexual conversations during late night calls, and touching her legs and buttocks without her consent. The Complaint even offers a bullet-point list of explicit allegations against Delane, while noting that he generates significant business for Dentons and is treated as a partner. Not surprisingly, alcohol is alleged to have played a part in Delane’s alleged-behavior.

Dentons, which just a few months ago dealt with allegations made against a partner while at a firm that merged with Dentons, issued a statement explaining that it placed Delane on administrative leave upon first learning of the allegations, and that it will take appropriate action upon conclusion of an internal investigation.  Parekh’s Complaint, however, alleges that Dentons initial response was far from robust. She claims that when she complained to her supervisor, she was told not to discuss the matter with anyone, which she characterizes as the firm’s effort to silence her and discourage her from seeking outside counsel. Parekh attributes the response—and the environment which enabled Delane’s alleged behavior—to a lack of female representation among the firm’s leadership. There are just three women on Dentons’ 34-member global board, and two on its 20-member global management team. For its part, the firm noted in its statement that five women serve on its 16-member U.S. board.

Whether Dentons responded appropriately or not will be borne out as the case progresses. Above The Law notes that Parekh’s allegation that she was told,

do not discuss this with anyone else inside or outside the firm,”

could be part of a prudent direction if given in the context of a request to wait until the firm concluded its investigation. Parekh’s lawyer told Bloomberg that the firm knew about the allegations for months, and only took action once Parekh sought outside counsel.  What is clear, however, is that even though companies can’t control for every employee’s behavior, they can control their response.  And society is paying attention.

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.

As the #metoo movement continues to ripple through our society, public and private companies are scrambling to update their sexual harassment policies.

Our Lawmakers didn’t want to be left out of the we-hear-you lovefest and, this February, passed what many observers consider a wide-ranging revision of the Congressional Accountability Act of 1995 Reform Act. The bill got rid of mandatory pre-suit mediation and counseling (yes, you read that right, there was a counseling requirement), made legislators personally financially liable for harassment settlements and, perhaps most impressively, provided the victim with legal counsel, something sorely needed if you are a low-paid employee or intern going up against a powerful lawmaker.

Enter the Senate, whose members appear to have thought this whole levelling-the-playing-field business went a bit too far. Last month the Senate passed its own watered-down Bill without many of the House’s most encouraging ideas. For all you nerds, here is the full text. According to a letter from the ACLU (and others) to Senate leadership, the Bill’s main issues are: curtailing the lawmakers’ financial responsibility by adding procedural hurdles and limiting the type of damages they would personally pay; increasing the difficulty of proving claims by using the legal “severe and pervasive” standard; requiring the victims to ‘opt out’ of mediation; reducing transparency by shielding the accusers from public disclosure; and, again perhaps most importantly, limiting the role of the victim’s assigned advisor.

Sidebar: as the letter points out, the Senate Bill also uses the term “unwelcome harassment,” rather than just harassment. The Bill author really should come forward and explain the difference between harassment and “unwelcome harassment” to me. I would really get a kick out of that chat.

Anyway, we will have to wait and see what the reconciliation process (aka the sausage factory) comes up with. Stay tuned.

As the #metoo movement continues gaining momentum, the dialogue around sexual harassment and assault is shifting to reveal the epidemic of sexual misconduct in our culture. Up to 85% of women report having experienced sexual harassment in the workplace, 75% of victims of hostile work environments do not report the harassment, and 75% of those who report harassment experience retaliation. What actions come next? On April 25, 2018, activists, advocates and lawmakers gathered at the U.S. Capitol to say Enough is Enough to the culture of sexual harassment and discuss how to strengthen federal law and policy, organize survivors, address workplace policies, and develop survivor-centric solutions. The Summit exemplifies the types of discussions we need to achieve justice for sexual harassment victims and prevent harassment. Video of the Summit is available on CSPAN.

The Takeaway from the Summit

Toni Van Pelt, NOW President

For Toni Van Pelt, President of the National Organization for Women (NOW), the takeaway from the Summit was “the deeply embedded need to overhaul the ways we deal with sexual assault from a political, legal, and cultural lens.” For her, identifying the scope of the problem, and where activists should target their energies were at the top of her list. Deborah Vagins, Senior Vice President of Public Policy & Research with the American Association of University Women (AAUW), found the Summit to show “we are at a moment in time where hopefully something can be done to address this problem” because the #metoo movement has “pierced the public consciousness” in a way we have not seen in decades.

How do We Strengthen Federal Law and Policy to Address Sexual Harassment?

Deborah Vagins, AAUW Senior Vice President, Public Policy & Research

Title VII of the Civil Rights Act is the federal law that makes it unlawful to discriminate because of an individual’s sex and makes sexual harassment a form of sex discrimination. In addition to built-in limitations in Title VII, court decisions have interpreted the statute in ways that further limit the protections and relief a victim can seek in court. Ms. Vagins, one of the participants on the federal law and policy panel at the Summit, said her panel identified the following barriers in Title VII cases:

  • Standards of liability against the employer have become more difficult over the years. Holding an employer vicariously liable for the misconduct of a daily manager, for example, is more difficult if the manager doesn’t have the power to hire or fire you;
  • Forced mandatory arbitration clauses that force victims to forego their day in court;
  • Non-disclosure agreements that are a condition of employment;
  • Short statute of limitations;
  • Title VII’s fifteen-employee threshold for the law to apply to the employer; and
  • Title VII’s limited reach that does not cover independent contractors.

Ms. Van Pelt adds that we need to look “towards strengthening Title VII protections for all workers,” including those in small companies, contractors, domestic workers and laborers like caregivers and maids, and farm and migrant labor workers because they “are some of the most abused and exploited workers in the world.” Ms. Van Pelt also emphasized the importance of renewing the Violence Against Women Act (VAWA) which will automatically expire if not renewed this year. She believes VAWA should also specifically address sexual harassment and assault in the workplace and in schools.

Potential Legislative Proposals

Besides strengthening Title VII and VAWA, Ms. Vagins and Ms. Van Pelt shared the following existing or potential bills with me:

  • Arbitration Fairness Act – to prohibit pre-dispute mandatory arbitration in employment discrimination, consumer, antitrust, and civil rights cases;
  • Ending Forced Arbitration of Sexual Harassment Act – limits pre-dispute mandatory arbitration in sexual harassment cases only;
  • Equal Remedies Act – an older bill that would lift the caps on Title VII damages, helping to deter companies from knowingly violating Title VII;
  • Fair Employment Protection Act – makes employers liable for harassment by workers who have the authority to control the daily lives of employees regardless of the authority to hire or fire;
  • Bills relating to the legislative workforce and their unpaid interns;
  • Bills addressing non-disclosure clauses as a condition of employment, requiring that public companies disclose the number of settlements in connection with harassment; and
  • Bills with requirements for developing and disseminating workplace training programs.

Ms. Vagins points out that none of these bills holds the answer, “but in combination would go a long way.” Ms. Van Pelt believes it is also important to strengthen Title IX to ensure it is “not only protecting students on campus, but that there are clear and transparent reporting processes.” As for timing, movement on these proposals and bills won’t have to wait until after the 2018 mid-term elections. “Right now a bipartisan committee is already working on VAWA; however I believe that the influx of progressive women running for office in November will inevitably bring about a much-needed cultural change” says Ms. Van Pelt. Ms. Vagins is equally optimistic and says to

never underestimate the power of public pressure to make change.”

If either chamber flips to a different party, Ms. Vagins thinks we will “probably see a flurry of these bills pass,” so legislators need to be careful to protect existing civil rights bills from unfriendly amendments.

Year-Round Resources

The Enough is Enough Summit may become a much-needed annual event to continue this important dialogue and find solutions. Throughout the year, AAUW, NOW, and some of the other organizations that participated in the Summit provide resources and legislative campaigns for sexual harassment victims their attorneys including: AAUW’s Legal Advocacy Fund to offset litigation costs and Know Your Rights materials; NOW’s national action campaigns; and the National Women’s Law Center’s Time’s Up Legal Defense Fund. If you are experiencing sexual harassment in the workplace, we can help you understand your rights.