Title VII of the Civil Rights Act of 1964 (“Title VII”) is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Title VII also applies to private and public colleges and universities, employment agencies, and labor organizations.

This year, sexual harassment in the workplace has been a hot topic in the news, inciting animated discussion about the role companies are playing in preventing or fostering workplace harassment and whether or not companies are taking appropriate action when claims of harassment are made by employees.  In some of the instances where women have brought claims of harassment against high-profile men in politics, media, and entertainment, the women were required to sign agreements with their employers to keep work-related legal claims in arbitration.

A bipartisan group of lawmakers in both the United States Senate and House of Representatives have introduced legislation that would ban pre-dispute arbitration agreements of sexual misconduct claims. The bipartisan bills would allow those who allege sexual harassment or gender discrimination in the workplace to take their claims to court rather than mandatory arbitration, even if the employee had previously signed an arbitration agreement.

Judge Alex Kozinski, a long serving judge and former Chief Justice for the powerful U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”), has announced his retirement effective immediately over allegations he subjected at least 15 women to inappropriate sexual behavior dating back to the 1980s.

Non-Disclosure Agreements: Perpetuating a Culture of Silence?

By: Jizell Lopez

As we previously reported here, we are conducting a mini-series of posts that will explore and examine some of the most important and interesting aspects of sexual harassment in wake of the Harvey Weinstein scandal that has not only dominated the news network and everyday conversation, but has also created a domino effect of sexual harassment and sexual abuse complaints against many prominent figures in the entertainment industry and in politics.

As we previously reported here and here, we are conducting a mini-series of posts that will explore and examine some of the most important and interesting aspects of sexual harassment in wake of the Harvey Weinstein scandal that has prompted a reevaluation of how harassment is handled in the workplace.

In our previous two posts, we discussed the issue of statute of limitations and the effect of non-disclosure agreements in relation to sexual harassment claims. Now, you may be asking, “how can employers effectively prevent a sexual harassment claim from occurring and what policies should an employer implement to ensure their employees are not subjected to sexual harassment in the workplace?” While employers cannot eliminate the possibility of employees occasionally acting inappropriately, there are reasonable steps an employer can take to prevent unlawful harassment, including having proper policies describing and prohibiting sexual harassment, notifying employees of their right to make complaints, and ensuring employees know that complaints will be promptly investigated and remedial action taken, and that complaining employees will not be subject to retaliation.

Throughout the past two months, since the explosive news of Harvey Weinstein’s indecent past, several prominent figures have been added to an extensive list of alleged high profile harassers—from NBC’s Matt Lauer to U.S. Sen. Al Franken. It may be difficult for employers to understand their responsibilities regarding sexual harassment in the workplace, but there is more urgency than ever. As mentioned in a previous post, it is extremely likely this trend will trickle down to employers all over the country, and the courts will see an uptick in sexual harassment claims. Employers need to be prepared and ensure they are minimizing the risk of a harassment claim and in the event a claim comes forward, the employer needs to be prepared to handle the complaint seriously and thoroughly. The importance of an employer’s obligations in rooting out, training, and preventing sexual harassment cannot be stressed enough.

Pursuant to the National Football League’s (“NFL”) collective bargaining agreement (“CBA”), the NFL commissioner has the authority to both issue discipline and hear the appeal or designate the arbitrator who will do so.  On August 11, 2017, after a yearlong investigation into allegations of domestic abuse, NFL Commissioner Roger Goodell suspended Dallas Cowboys Running Back Ezekiel Elliot for six games after finding that there was “credible evidence” that Elliot had violated the NFL’s personal conduct policy. The NFL Players Association (“NFLPA”) appealed the decision to a Goodell-appointed arbitrator who upheld the decision to suspend Elliot. After the NFL filed a motion in Federal court to confirm the arbitrator’s decision, the NFLPA has been pulling out all the stops to delay and potentially overturn Elliot’s suspension.

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