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Harassment

Recent Changes to NDAs in Employment Contracts and Settlement Agreements

For years, companies have used non-disclosure agreements (“NDAs”) and non-disparagement agreements in employment contracts and settlement agreements. These provisions primarily allow companies to protect sensitive business information, but can also be used to prevent workers from speaking about harassment and discrimination in the workplace. While some victims of workplace discrimination enjoy the assurance of privacy that comes with an NDA, others see these provisions as silencing workers. Particularly within the #MeToo movement, NDAs were largely blamed for shielding perpetrators of harassment and discrimination from accountability, prompting significant backlash. California’s SB 331, the “Silenced No More Act,” is the latest in a string of state laws aimed at restricting the use of NDAs and non-disparagement agreements in settlement and employment contracts. Other states – including Oregon, New York, New Jersey, Illinois, Nevada, Vermont, Washington, Tennessee, and Virginia – have recently instituted similar laws. The patchwork of state laws addressing NDAs and non-disparagement provisions, however, is inconsistent. Some laws address all types of workplace discrimination, while others, fueled by the #MeToo movement, address only sexual harassment and assault; some are only applicable to employment contracts and some only to settlement agreements. This article provides an overview of the varying approaches states have […]

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Protections Against Discrimination for Nonbinary Employees

Today (July 14) is International Nonbinary People’s Day.  According to a June 2021 study conducted by the Williams Institute, 1.2 million adults in the United States identify as non-binary.[1] “Nonbinary” is an identity embraced by people who do not identify exclusively as men or women.[2]  A nonbinary individual may identify as both a man and woman, somewhere in between, or as falling outside these categories.  Although many nonbinary people identify as transgender, not all do.[3]  Some, but not all, nonbinary people use “they,” “them,” and “their” pronouns;[4] such pronoun usage is not grammatically incorrect and should be respected.  Indeed, the American Dialect Society voted the singular “they” Word of the Year in 2015 and noted that it was used by writers such as Jane Austen, Geoffrey Chaucer, and William Shakespeare.[5]  While nonbinary gender identities are not only a recent phenomenon,[6] media exposure of nonbinary individuals in the United States has increased in recent years.[7] Unfortunately, nonbinary people face discrimination in society.  Survey responses about transgender people’s experiences with employment, education, healthcare, and policing indicate that nonbinary individuals are “suffering significant impacts of anti-transgender bias and in some cases are at higher risk for discrimination and violence” than transgender men and women […]

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New York Judicial Committee Issues Report and Recommendations on Gender Equity in State Court

In November 2020, the New York State Judicial Committee on Women in the Courts released its 2020 Gender Survey, detailing the treatment of women attorneys, litigants, and court employees in the state court system. While the study found that the treatment of women has improved markedly in the last few decades, it also found that significant gender bias continues to persist in New York State courts. The study—a sequel to the original 1986 report—was based on survey responses from a sample of over 5,300 attorneys admitted to practice law in New York State. The survey focused on several key issues, including the courthouse environment/sexual harassment; how gender impacts court interaction and perceived credibility; the treatment of domestic violence, rape, and prostitution cases; and the adequacy of courthouse facilities in providing Children’s Centers, lactation facilities, and baby changing stations. Treatment by Other Attorneys Though the Committee found that conditions in court facilities have improved since the original report, it also found continued gender disparities, as well as differing perceptions of discrimination between men and women. Regarding sexual harassment, for example, 10 percent of women surveyed reported that women attorneys are subjected to unwelcome physical contact by other attorneys in courts frequently, and another […]

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The Impact of the New Title IX Regulations on K-12 Schools

On August 14, 2020, the Department of Education’s final regulations regarding sexual harassment under Title IX went into effect. This marks the final step in a controversial process that began in November 2018, when President Trump’s Secretary of Education Betsy DeVos submitted a proposal to drastically overhaul many aspects of the Title IX guidelines instituted under the Obama administration. Title IX, which applies to all educational institutions that receive any form of federal funding, prohibits discrimination on the basis of sex, including sexual harassment. Title IX is perhaps best known as a legal framework governing how colleges and universities address issues of gender discrimination, sexual harassment and sexual assault. Title IX, however, applies equally to elementary and secondary, i.e. K-12, schools. Under the new Title IX regulations, there are some important distinctions that apply to K-12 schools, but not to colleges and universities. First, one of the most disputed aspects of the new Title IX regulations is the requirement that colleges and universities must now hold live disciplinary hearings and permit cross-examination of witnesses. Under the previous regime, schools were discouraged from allowing an alleged perpetrator to cross-examine the complainant because of the very likely possibility of re-traumatization. Fortunately, this […]

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“Take care of your kid situation”—Employers are Failing Working Moms During this Pandemic

As many schools go fully virtual this fall, working parents are faced with many questions about caring for and educating children while working.  Working moms also face an additional question: will my boss perceive me as less committed to my work because I am a woman with children?  Unfortunately, too often the answer is “yes.” That working moms face a “motherhood penalty” and working dads face a “fatherhood bonus” is well-documented.  Women lose 4% of their hourly earnings on average for each child, while men earn 6% more.  These figures reflect unlawful gender stereotypes: the moms take care of children; dads work to provide for children.  Assuming the primary job of moms is to care for their children, employers unlawfully assume that women with children are less committed to work.  They also apply the opposite stereotypes to men. These stereotypes can be exacerbated during the pandemic when women are video conferencing with their bosses from home, and children are very much “in the picture.”  Too many employers are requiring working moms to “prove their commitment” to their jobs.  In contrast, employers assume working dads are already committed.  Many bosses even praise dads for taking care of kids, assuming that it is […]

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What Impact Is COVID-19 Having on Women in the Work Force?

According to a policy brief by the UN Secretary-General published on April 9, 2020, “across every sphere, from health to the economy, security to social protection, the impacts of COVID-19 are exacerbated for women and girls simply by virtue of their sex.” The policy brief concludes that of the nearly 2.7 billion workers impacted by full or partial lockdown measures, women’s economic outcomes will be affected disproportionately to men. That is due to a confluence of factors. Worldwide, “women earn less, save less, hold less secure jobs” and have less access to the attendant social protections than men. Women who experience layoffs, furlough, or reduced salaries due to COVID-19 are therefore more likely to suffer economic insecurity. In many countries, layoffs have been especially high in sectors in which women are overrepresented, such as hospitality, retail, and tourism. COVID-19 is also having a particularly destructive effect on positions women hold in the informal economy, and these jobs usually offer the fewest social protections, such as paid sick leave. According to the policy brief, women worldwide spend three times as many hours as men on unpaid care and domestic work and constitute the majority of single-parent households. As COVID-19 caused school and daycare […]

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The Equal Pay Act: Equal Total Compensation Is No Defense If Rate of Pay Is Unequal

Imagine this scenario: a corporation runs health spas, each of which is divided into a men’s division and a women’s division that operate on alternate days.  Male managers run the men’s division, while female managers run the women’s division.  Because there are far more female customers interested in spa services, the corporation decides to compensate the male managers and female managers, all of whom are paid on commission, at different rates in order to ensure that male and female salaries are equal.  So male managers’ salaries are based on a higher percentage of gross sales than female managers’ salaries.  This way, the total compensation of men and women is exactly the same. If this superficially “equal” compensation scheme seems unfair to you, that’s because it is.  In Bence v. Detroit Health Corporation, 712 F.2d 1024 (6th Cir. 1983), the Sixth Circuit Court of Appeals held that this exact pay practice violated the Equal Pay Act (“EPA”).  The EPA, passed by Congress and signed into law by President Kennedy in 1963, prohibits an employer from discriminating “between employees on the basis of sex by paying wages . . . at a rate less than the rate at which [the employer] pays wages to employees […]

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Prior Pay Cannot Be Used To Justify Paying Women Less In Ninth Circuit

“In 1963, Congress enacted the Equal Pay Act with a mandate as simple as it was profound: equal pay for equal work.” So begins the opinion in Rizo v. Yovino, a recent Ninth Circuit case holding that prior pay may not be used to justify a pay discrepancy between men and women—even if it is one factor among several. (In a strange twist, the Ninth Circuit had already decided this issue and reached the same result, but the original opinion was tossed out by the Supreme Court because the authoring judge, Judge Stephen Reinhardt, passed away before publication of the opinion.) Congress enacted the Equal Pay Act (EPA) in 1963 to combat pay discrimination based on sex. At the time, the practice of paying women less than men was so ingrained that many employers used two separate pay scales: one for men and one for women. The effect was stark; women earned only about 59% of what their male colleagues earned. Congress’ goal was to eliminate this problem while preserving employers’ right to pay women less for legitimate, job-related reasons. (It’s worth noting that the concept of justifiable pay differences between men and women made more sense in 1963, when women […]

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What Antidiscrimination Laws Protect Volunteer Healthcare Providers in New York?

These are extraordinary times for the healthcare system in the United States.  As of this writing, at least 206,233 Americans are known to have been infected with the coronavirus, and at least 4,576 of those individuals have died.  Of the Americans who have tested positive for the virus, at least 83,887 are from New York, the state hardest hit by the pandemic.  And the majority of those cases are in New York City, where the high density and population have made that metropolitan area the national epicenter of the public health crisis. Healthcare providers have answered the call.  New York Governor Andrew Cuomo has reached out to medical professionals who work outside hospital settings to request that they volunteer in staffing hospitals during the pandemic.  At his daily briefing on March 25, Governor Cuomo announced that the State had heard back from 40,000 volunteers, including 2,265 physicians; 2,409 nurse practitioners; 938 physician assistants; 328 nurse anesthetists; 160 respiratory therapists; 16,367 registered nurses; and 4,016 licensed practical nurses. Beyond the obvious risk of getting infected with the virus themselves, volunteer healthcare providers face other risks while working in hospitals.  As my colleague, David Tracey, has explained, sexual harassment and gender discrimination are pervasive problems in medicine, as is discrimination against racial and ethnic minorities.  In […]

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