Discrimination

OFCCP’s New Directive on Predetermination Notices Gives Contractors a Second Chance

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Effective February 27, 2018, the Office of Federal Contract Compliance Programs (OFCCP), which is charged with ensuring federal contractors and subcontractors provide equal employment opportunity, issued Directive 2018-01, announcing that predetermination notices (PDNs) will be sent to federal contractors and subcontractors for all audits and compliance reviews where a finding of unlawful employment discrimination is imminent.  READ MORE →

New Lawsuit Alleges Rush to Judgment in #MeToo Climate

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Newton’s Third Law of Physics states that “for every action, there is an equal and opposite reaction.” A recent Complaint filed in the Southern District of New York suggests that this principle may also hold true for the recent “Me Too” movement. READ MORE →

Legislators Quick to Respond to #Metoo

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Introduction

Since Anita Hill’s testimony in the early 1990s, sexual harassment has become a familiar term. At the federal level, Title VII prohibits harassment, discrimination, and retaliation on the basis of sex and gender, among other things. On the state level, the New York State Human Rights Law (“NYSHRL”) expands on the categories of protected classes covered by Title VII but is interpreted by the courts in largely the same manner as Title VII. Under California’s Fair Employment and Housing Act (“FEHA”), harassment is defined to include verbal harassment (such as derogatory comments), physical harassment (including physical interference with movement), visual harassment (such as derogatory cartoon or drawings), and sexual favors. FEHA prohibits sexual harassment because of a person’s sex, gender, gender identity, gender expression, sexual orientation, transgender status, pregnancy, and childbirth, breastfeeding, and related medical conditions. Harassment based on the perception of any of these characteristics is also prohibited, and sexually harassing conduct need not be motivated by sexual desire to be considered unlawful. READ MORE →

CEO’s Whistleblower Claims “Rest On Feet Of Clay”: Seventh Circuit Affirms Dismissal Of SOX and Dodd-Frank Case

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Earlier this month, the Seventh Circuit affirmed dismissal of a CEO’s whistleblower retaliation claims in a decision that should provide corporate defendants ammunition to fight SOX and Dodd-Frank whistleblower cases going forward.

In Verfuerth v. Orion Energy Systems, Inc., No. 16-3502 (7th Cir. Jan. 11, 2017), the plaintiff, founder and former CEO of Orion, claimed that Orion’s Board of Directors terminated him for cause in retaliation for making whistleblower complaints about perceived fraud on SEC reports and other managerial decisions.  Orion asserted that it terminated Verfuerth for numerous legitimate reasons, including falling stock prices, Verfuerth’s intimidating leadership style, high rates of senior management turnover, and other business disagreements such as reimbursement for Verfuerth’s costly divorce. READ MORE →

The Ending Forced Arbitration of Sexual Harassment Act: A Legislative Response to #MeToo

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With sexual misconduct allegations sending shockwaves everywhere from Hollywood to Washington, it should come as no surprise that some legislators are chomping at the bit to pass legislation addressing sexual harassment in the workplace. On December 6, a group of lawmakers introduced legislation that would eliminate forced arbitration clauses in employment agreements. Representatives Cheri Bustos (D-Ill), Walter Jones (R-N.C.) and Elise Stefanik (R-N.Y.) and Senators Kirsten Gillibrand (D-N.Y.), Kamala Harris (D-Calif.) and Lindsey Graham (R-S.C.) are sponsoring the “Ending Forced Arbitration of Sexual Harassment Act,” which proponents say will prevent women from being silenced through mandatory arbitration agreements. READ MORE →

Laying Down the Law(son): Jury Returns Defense Verdict in First SOX Whistleblower Case to Reach the U.S. Supreme Court

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An individual who convinced a divided U.S. Supreme Court in 2014 that Sarbanes-Oxley’s (“SOX”) whistleblower protections extend to the employees of a public company’s contractors and subcontractors has ultimately lost her case before a federal jury in Massachusetts, thus ending her ten-year legal saga.

Lawson claimed that in 2005 she spotted what she believed were accounting irregularities at Fidelity that allowed the company to charge millions of dollars in excessive fees to mutual fund shareholders.  She never called Fidelity’s information hotline to report the inaccuracies, but instead filed a whistleblower tip a year later with the SEC regarding the alleged fraud.  While the SEC did not pursue an enforcement action against the company, Lawson claimed that Fidelity managers and employees harassed her and retaliated against her for the reporting by giving her lower performance ratings and bonuses.  Lawson resigned in 2007 and sought whistleblower protections under SOX. READ MORE →

“#MeToo”: Fostering A Harassment-Free Workplace

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In the last several weeks, allegations of rampant sexual harassment have shocked the collective conscience. With the assistance of social media, what started as an allegation against a Hollywood mogul snowballed into a nation-wide conversation about sexual harassment in the workplace and elsewhere. According to the Washington Post, hundreds of thousands of men and women took to Twitter and Facebook to express they had been victims of sexual harassment, many of them using the hashtag “MeToo” to show solidarity with other victims. READ MORE →

Heads You Win, Tails You Lose: Government on Both Sides of the LGBT Protections Debate

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Recently, much has been made about the government’s conflicting positions regarding whether sexual orientation is protected by Title VII of the Civil Rights Act of 1964.  The EEOC (“Equal Employment Opportunity Commission”) has continued to assert its position that sexual orientation is protected under Title VII as a form of sex-based discrimination under the Supreme Court’s Price Waterhouse decision.  At the same time, the Department of Justice (“DOJ”) has claimed that Title VII does not protect sexual orientation as it is not based on sex.   Many have taken extreme umbrage at DOJ’s position as a complete reversal of the previous administration’s position as the Department filed an unsolicited amicus in the Second Circuit.  However, as the DOJ’s civil division filed the brief, it presents a rare window into the “Jekyll/Hyde” dynamic within the government.  As some agencies broadly seek civil rights protections, the federal government is also one of the world’s largest employers faced with the challenges of limiting countless claims. READ MORE →

President Trump’s DOJ Takes Website Accessibility Regulations off the Table

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As those interested in website accessibility regulations under Title III of the Americans with Disabilities Act (“ADA”) know, the Department of Justice announced in May 2016 that it would issue a rule governing website accessibility standards for places of public accommodation to take effect in 2018. It now appears that we can expect an even longer indefinite delay. Last month, the Trump Administration launched its Unified Regulatory Agenda, which “provides an updated report on the actions administrative agencies plan to issue in the near and long term.” The Agenda is meant to effectuate Executive Orders 13771 and 13777, which require agencies to reduce unnecessary regulatory burden. According to the Office of Information and Regulatory Affairs, the Agenda “represents the beginning of fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burden on the American people. By amending and eliminating regulations that are ineffective, duplicative, and obsolete, the Administration can promote economic growth and innovation and protect individual liberty.” READ MORE →

Fool’s Gold: Second Circuit Vacates Order Affirming Arbitrator’s Certification of Class of Jewelry Store Workers Including Absent Class Members

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On July 24, 2017, the Second Circuit Court of Appeals rejected a federal district court’s approval for a class of roughly 69,000 women claiming that Sterling Jewelers, Inc. (“Sterling”) discriminated against them based on sex. The decision overturned a district court ruling that affirmed an arbitrator’s decision to let the women proceed to trial as a class in an arbitration.

Plaintiffs initially filed a class action lawsuit in March 2008, alleging that Sterling’s practices and policies led to women being deliberately passed over for promotions and paid them less than their male cohorts. The case was sent to arbitration several months later under Sterling’s arbitration clause.

In 2009, an arbitrator ruled that Sterling’s dispute resolution program did not specifically bar class actions and allowed claimants to seek class status. From there, the case took a number of twists and turns, which we reported on more fully at the time here.

In June 2013, the employees moved for class certification. In February 2015, the arbitrator ruled that that the employees could proceed as a class in the arbitration.  In November 2015, the district court affirmed the arbitrator’s decision concluding that the arbitrator did not exceed her authority by certifying a class that included absent class members i.e., employees other than the named plaintiffs and those who have opted into the class.  Sterling appealed. READ MORE →