Google Employees Walk Out Over Sexual Harassment Buyouts

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A news article about sexual harassment buyout four years ago sent Google employees to the streets in New York City and around the globe. They protested $90 million paid to Andy Rubin, the “Father of Android” and other high-level golden parachutes paid after those executives were credibly accused of sexual harassment by Google employees. Find out the options available to workers harassed by executives in their company, especially when those companies praise the abuser and silence the abuse.

In this blog post, I will review a New York Times report of walkout protests by Google employees prompted by sexual harassment buyouts offered to male executives accused of harassment. I will review federal and state law related to how employers should respond to allegations of sexual harassment, and will discuss what options employees have when their harassers are offered golden parachutes.

Google Covers Up Sexual Harassment Buyout for Four Years

On October 25, 2018, the New York Times published an article exposing a scandal at Google four years in the making. In October 2014, Andy Rubin, creator of Android mobile software, resigned from the company after Google investigated allegations of sexual misconduct, finding them credible. A female employee reported Rubin coerced her into performing oral sex in a hotel in 2013 as part of an extramarital affair. After the investigation revealed her allegations were credible, Google asked Rubin for his resignation.

But at the time, Rubin’s departure from Google was more of a celebration than a punishment. Larry Page, Google’s CEO at the time, wished Rubin well, applauding him for “creating something truly remarkable — with a billion-plus happy users.” The company also paid him a $90 million exit package over four years, ending in November 2018.

A Pattern to Dismiss and Protect Executives

Rubin wasn’t the only one Google treated to a golden parachute. The company took similar action in two other cases where executives were accused of sexual harassment. While sexual harassment buyouts weren’t necessarily common at the company, in two cases, the executives accused received generous exit packages. In another the executive stayed with the company in spite of the accusations. In all of these cases, Google stayed silent about the sexual harassment allegations.

Google Employees Protest Golden Parachutes

When the news of these severance packages went public, Google employees around organized walkouts in protest. In New York, 3,000 workers gathered in a local city park with signs and organizers stood on chairs with megaphones to address the crowd. They chanted “Time’s Up”, after a similar movement in Hollywood last year. Similar protests erupted across the globe — including Singapore, Hyderabad, India, Berlin, and London — as well as in Chicago and Seattle. The message at all these protests was the same: Google needed to do more to recognize diversity among its workforce. That included treating the victims of sexual harassment fairly, and not offering bailouts to their harassers.

Options for New York Employees Facing Sexual Harassment

The protests happened just as New York State was rolling out new regulations for public and private employers across the state. The new law mandates every company with employees in New York to adopt an anti-discrimination policy including reporting procedures and clear descriptions of potential consequences for unlawful behavior. By October 2019, employers must also provide annual sexual harassment prevention training to all their employees.

These protections are on top of federal sexual harassment protections under Title VII of the Civil Rights Act. Both laws make it illegal for an employer to base hiring decisions on a person’s sex or gender. Employers are required to investigate and take reasonable steps to respond to allegations of sexual harassments by coworkers, contractors, supervisors, and even executives.

Are Sexual Harassment Buyouts Reasonable Responses to Complaints?

Those reasonable responses to sexual harassment allegations can sometimes include firing the person accused of harassment. But when a forced resignation comes with a sexual harassment buyout and a glowing recommendation, it may not seem like much of a punishment at all. The law doesn’t prohibit employers from offering severance packages to employees accused of misconduct. However, companies are also allowed to fire employers on the spot, without notice or severance. What is reasonable in a particular situation is a question for the New York Division of Human Rights, or the Equal Employment Opportunity Commission.

At Eisenberg & Baum, LLP, our sexual harassment attorneys know that a sexual harassment buyout never feels like a fair response to allegations of misconduct. We will meet with you and review your options when your employer chooses an executive’s comfort over your complaint. Contact us today to schedule a free consultation.

2019 Brings New Sexual Harassment Training Requirements to New York Employers

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New York state has tightened its rules about sexual harassment at work. Starting in 2019, the state is imposing new sexual harassment training requirements on all New York employers for new hires and existing employees. Find out what to expect and what you can do if your employer isn’t living up to expectations.

In this blog post I will review a New York law that imposes sexual harassment training requirements for new employees on all state and private employers. I will review guidelines published by the state setting deadlines and best practices for the trainings. I will also review who is covered by the law, and how employers may try to get around the training requirements.

Sexual Harassment Training is Key to Preventing Hostile Work Environments

Sexual harassment in the workplace can create tension between employees and build a hostile work environment where no one wants to work. From an employer’s perspective, sexual harassment may interrupt productivity, increase absenteeism, and cause valuable employees to leave. But detecting and preventing sexual harassment can be difficult, especially because some forms of harassment almost always happen behind closed doors.

A key part of preventing hostile work environments is training employees to recognize the signs of gender discrimination and sexual harassment, and to know how to report when harassment occurs. That’s why New York State made mandatory sexual harassment training a part of its 2019 State Budget. The new law, which was effective October 9, 2018, was the first of its kind, imposing sexual harassment training requirements on both public and private employers across the state.

What’s Included in the New Sexual Harassment Training Requirements

When the announcement of the sexual harassment training requirements was first made, some commentators were concerned about the details. They said not all trainings were created equal. The effectiveness of the training depended on what was involved, and how well employers implement the the new programs. The New York State model trainings address many of these concerns. At a minimum, the training must:

  • Be completed as soon as reasonable after each attorney was hired
  • Happen at least once per year
  • Be interactive
  • Explain what sexual harassment is
  • Give examples of unlawful sexual harassment conduct
  • Describe state and federal remedies for the victims of sexual harassment
  • Explain employees’ rights and where and how they can assert these rights
  • Address how to respond to unlawful conduct by superiors
  • Lay out the additional responsibilities for supervisors

Originally, these sexual harassment training requirements were scheduled to take effect on January 1, 2019. However, after receiving public comment, the Department of Labor and Division of Human Rights pushed back the deadline. Now, all New York employees must complete sexual harassment training no later than October 9, 2019.

New York Division of Human Rights Provides Model Training Videos

To help employers meet the sexual harassment training requirements, the Department of Labor and Division of Human Rights have put together a script, a slides for use for in-person training, and sample training videos for employers to use. However, the videos alone won’t satisfy all the employer’s responsibilities. On its website, the State said,

“The videos below, which may be watched via YouTube or downloaded, meet all state minimum training requirements except one: the videos alone are NOT considered interactive. If you are using this video to meet the training requirements, you must also: ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; or require feedback from employees about the training and the materials presented.”

Options for Employees When Employer-Provided Trainings Fall Short

The sexual harassment training requirements are designed to hold employers responsible for preventing and responding to sexual harassment in the workplace. When those trainings fall short, and sexual harassment occurs, employees have the right to file a complaint with the New York Division of Human Rights and the federal Equal Employment Opportunity Commission.

At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how the new laws have affected your rights, and what you can do if your employer isn’t keeping up with the sexual harassment training requirements. We will help you negotiate with your employer, file the necessary administrative claims, and represent you in court. Contact us to schedule a consultation.

New York Models Sexual Harassment Prevention Policy for Employers

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The 2019 New York State Budget puts in place the nation’s strongest, most comprehensive sexual harassment law. It holds employers accountable for sexual misconduct in the workplace, and specifically requires employers to adopt a sexual harassment prevention policy. To help employers meet these new demands, the New York State government has put together a model policy that can be used as a standard to protect workers’ rights across the state.

In this blog post, I will discuss the 2019 New York State Budget, which requires all employers to adopt a sexual harassment prevention policy. I will review the model policies and training guidance provided by the state. I will also address options available to employees whose employers don’t create or enforce the mandatory policies.

New York State Law Requires Sexual Harassment Prevention Policies for All Employers

Whether you work on Wall Street, in a brand new startup, or for a small family store, you deserve to be free from sexual harassment in the workplace. Starting in 2019, the New York State government requires every employer — matter how small — to adopt a formal sexual harassment policy to protect its workers. The policy must:

  • Explicitly prohibit sexual harassment
  • Give examples of prohibited sexual conduct
  • Describe federal and state anti-discrimination laws, and say that local ordinances may also apply
  • Contain a written complaint form
  • Describe a timely and confidential investigation procedure designed to give due process to everyone involved
  • Notify employees of their rights to file complaints internally, with the Division of Human Rights, and with the Equal Employment Opportunity Commission
  • Clearly state that sexual harassment is employee misconduct subject to discipline and enforcement
  • Include discipline of supervisors and managers who allow sexual harassment to continue
  • Prohibit retaliation with the threat of discipline

Model Sexual Harassment Prevention Policy Helps Employers Do the Right Thing

In addition to describing what employers are required to do, the New York State government website provides a model sexual harassment prevention policy that makes it easy for employers to comply with the law. The policy starts by giving a broad definition of sexual harassment, in line with the New York State Human Rights Law:

“Sexual harassment includes harassment on the basis of sex, sexual orientation, self-identified or perceived sex, gender expression, gender identity and the status of being transgender.”

It includes bans on sexual conduct that:

  • Interferes with a person’s work
  • Creates a hostile, intimidating, or offensive work environment
  • Conditions employment on the response to sexual conduct
  • Basis employment decisions on the response to sexual conduct

The policy then provides concrete examples of each type of sexual harassment. It notes that, while not all sexual misconduct creates the basis for a lawsuit or DHR complaint, even a single incident can be addressed internally under the policy. It also addresses many frequently asked questions like:

  • Can an employee be sexually harassed by another employee of the same gender?
  • Does sexual harassment include behavior of independent contractors, superiors, or clients?
  • What if sexual harassment happens outside the workplace.

Model Policy Focuses on Preventing Retaliation

The model policy also dedicates an entire section to retaliation. Under the New York State Human Rights Act and Title VII of the federal civil rights act, retaliating against someone because they filed a sexual harassment complaint or participated in an investigation is illegal. The model policy makes it clear that anyone — even a supervisor or manager — who retaliates against someone filing a sexual harassment complaint may be disciplined or even fired.

State Policy Emphasizes Witness Reporting

Stopping sexual harassment isn’t just about he said/she said. The model policy addresses the important role of witnesses in sexual harassment prevention. It encourages witnesses to file written complaints, and ensures the investigation will be confidential (to the extent possible) and free from retaliation. That way workers who see something can feel confident in saying something.

Meeting Mandatory Training Requirements

The New York State Human Rights Act also now requires all employers to provide sexual harassment prevention training every year. The state website provides guides to what that training should look like, and how it can work. There are also training videos available that meet the minimum training requirements, except they are not interactive. The website provides guidance on how employers can use the videos to meet their obligations under the law.

What to Do if Your Employer Doesn’t Adopt a Sexual Harassment Prevention Policy

State law is only as good as its enforcement. If you feel you have been the victim of sexual harassment and your employer (1) doesn’t have a policy or (2) refuses to enforce it, you may be entitled to file a complaint with the New York State Division of Human Rights or the EEOC.

At Eisenberg & Baum, our New York City-based sexual harassment attorneys know how the new laws have affected your rights, and what you can do if your employer isn’t keeping up with the changes. We will help you negotiate with your employer, file the necessary administrative claims, and represent you in court. Contact us to schedule a consultation.

Sexual Harassment in the Fast Food Industry

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#MeToo Protesters across the country are holding McDonald’s accountable for sexual harassment in the fast food industry. But will legal loopholes around franchise agreements keep them from achieving nationwide change?

In this blog post, I will discuss protests by McDonald’s workers which reveal sexual harassment in the fast food industry. I will explain how federal law protects hourly staff including servers, and what protesters can do if they face discrimination or harassment at work.

#MeToo Protests Call Out McDonald’s for Sexual Harassment in the Workplace

On September 18, 2018, fast food workers from McDonald’s in 10 cities around the country walked out. They gathered in protest of unwanted sexual advances in the workplace. In a suburb outside St. Louis, they chanted, “Hold your burgers, hold your fries. Keep your hands off my thighs.” In Kansas City, they carried #MeToo signs where the M reflected the company logo. In Chicago, they walked together wearing tape across their mouths with the symbol #MeToo. Together, the nationwide protests called on fast food giant McDonald’s to do more to prevent sexual harassment in the fast food industry.

The organizers called the event the first in 100 years to protest sexual harassment in the workplace. Protester Kimberly Lawson told the New York Times:

“We’re protesting today and this is more important than work. . . . We have the strength to protect one another and demand the justice we deserve.”

Lawson says she personally has felt trapped when a manager made unwanted sexual advances. Brenda Harris, from Chicago, said that over the more than 20 years she has worked for McDonald’s she had been groped too many times to count.

Title VII and Sexual Harassment in the Fast Food Industry

The protests stem out of efforts to hold McDonalds, and the fast food industry as a whole, accountable for the sexual harassment that happens within its stores. In May, 10 McDonald’s employees filed complaints with the Equal Employment Opportunity Commission (EEOC), alleging that male supervisors made unwelcome advances against them, and retaliated against them when they complained.

The complaints are based off of alleged violations of Title VII of the federal Civil Rights Act. This nationwide law requires employers avoid sexual harassment in employment decisions, and to take reasonable steps to respond when managers’, coworkers’, or even customers’ behavior create a hostile work environment.

Mary Joyce Carlson, a lawyer for the Service Employees International Union and Fight for $15 (its advocacy group), is helping the employees pursue their EEOC complaint. She told the New York Times that the complaint, and how McDonald’s responds to it, could have a lasting effect on sexual harassment in the fast food industry:

“McDonald’s has a huge system, anything it wants to be effective on, it can be,” she said. “The front-line workers, the cooks, the cashiers, as well as people in the management structure, should have a safe place to report a complaint. . . . What McDonald’s does on this issue, how they choose to treat it, how they act on it proactively, will have influence on other stores.”

Who to Sue? Franchise vs Company

But McDonald’s says it’s already doing everything it can. In a statement, the company said:

“We have strong policies, procedures and training in place specifically designed to prevent sexual harassment. . . . To ensure we are doing all that can be done, we have engaged experts in the areas of prevention and response.”

Instead, fast food companies and other restaurants have often pointed the finger down the line, to their franchisees. Franchise arrangements are where one company buys the right to use the branding, trademarks and products of a larger company in exchange for a fee and royalties on profits. Because of the layers of corporate control, it can sometimes be hard to determine who to sue: the franchisee or the corporation.

The franchising company often has policies for everything from advertising to food preparation. Franchisees often don’t have the same degree of established policies and procedures for things like hiring or investigating sexual harassment complaints. That can mean those complaints don’t receive the response they should under the law.

McDonald’s says it has implemented trainings to prevent sexual harassment in its company. But it isn’t clear whether McDonald’s efforts have trickled down to the franchisees. Carlson indicated that in speaking with her clients and the protesters, some workers didn’t even know that the sexual harassment they had experienced in the fast food industry was unlawful, or that they had any recourse when management ignored their complaints.

Fast food companies and other large corporations know how to use corporate structures like franchise agreements to protect themselves from lawsuits. When fast food workers or others employed by franchisees face sexual harassment at work, they need employment discrimination attorneys with the knowledge to cut through the finger pointing and get results.

At Eisenberg & Baum, LLP, our sexual harassment attorneys can help you review your case, and your legal options, to find a solution to the gender discrimination you experience within the fast food industry. Whether you decide to negotiate with your franchise owner, or file a complaint against the corporation, we will be there to help you get the relief you deserve. If you are facing sexual harassment in the fast food industry, contact us today to schedule a free consultation.

Black Women in Law Face Gender Discrimination and Racial Bias

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Many people assume that lawyers — both in-house and in firms — live comfortable lives and earn a lot of money. But if you ask a lawyer, especially a woman of color, you may find they experience a life very different from the stereotype. A recent study by the American Bar Association and the Center for WorkLife Law shows that black women in law (and other women of color) continue to face gender discrimination and racial bias that keeps them from reaching those lofty expectations.

In this blog post, I will review a new report that shows gender discrimination and racial bias continues to plague the legal industry. I will discuss what gender and race discrimination looks like in high-paying fields like law, and what black women in the law can do to help fight back against the problems in the industry.

ABA Study Reveals Gender Discrimination and Racial Bias Among Lawyers

It is a known fact that women and people of color are under-represented at the highest levels of the legal field. Women are less likely to be named partner in large firms, and people of color aren’t given access to the high-profile cases they need to build a reputation. But gender discrimination and racial bias can be hard to quantify.

That’s why, in 2016, the American Bar Association’s Commission on Women in the Profession and the Minority Corporate Counsel Association came together with the Center for WorkLife Law at the University of California’s Hastings College of the Law in San Francisco to study it. The team put together a survey of 2,827 in-house and firm attorneys, including nearly 600 who provided substantive comments, to review how gender discrimination and racial bias affects the work lives of four categories of attorneys:

  • White Men
  • White Women
  • Men of Color
  • Women of Color

The study confirms widespread gender and racial bias across all 7 basic workplace processes:

  • Hiring
  • Performance evaluations
  • Mentoring
  • Assignments
  • Networking opportunities
  • Pay
  • Promotion

In most cases, black women (and other women of color) reported the highest rates of discrimination and unequal treatment. However, white women and men of color also reported significant challenges to advancing within the legal industry. The study, “You Can’t Change What You Can’t See: Interrupting Racial & Gender Bias in the Legal Profession”, summarizes its findings saying:

“This report is the first of its kind to provide a comprehensive picture of how implicit gender and racial bias — documented in social science for decades — plays out in everyday interactions in legal workplaces and affects basic workplace processes such as hiring and compensation.”

Types of Implicit Discrimination Within the Legal Industry

The report summarizes the gender discrimination and racial bias within the legal industry into categories:

Prove-It-Again

Women of color, white women, and men of color all reported having to go “above and beyond” to receive the same recognition as their colleagues. Black women reported being held to higher standards than their colleagues 32% more than white men.

They also reported being mistaken for administrative staff, court personnel, or even janitors 50% more often than white men. These cases of mistaken identity also affected white women (44% higher) and men of color (23% higher).

Tightrope

The survey also revealed that black women and white women report pressure to walk a tightrope of gender expression. They are pressured to behave in feminine ways and get backlash for acting in masculine ways. They are also asked to perform more “office housework” and administrative tasks like taking notes for meetings.

Maternal Wall

The report also revealed a “flexibility stigma surrounding leave” affecting all groups — even white men. Women of all races reported being treated worse after they had children including:

  • Being passed over for promotions
  • Given “mommy track” low-quality assignments
  • Being demoted
  • Being paid less
  • Treated unfairly for working part-time or with a flexible schedule
  • Having their commitment or competence questioned after having children

Half of black women responding to the survey agreed that taking family leave would negatively affect their career. 57% of white women, 47% of men of color, and 42% of white men felt the same way.

Gender and Racial Pay Gap

The study also revealed that, in addition to the well-reported gender pay gap, the legal industry faces racial bias in compensation. Women of color believed their pay to be comparable to colleagues 31% less often than men. When asked if they get paid less than colleagues of similar experience and skill, 31% more black women said yes. (White women clocked in at 24% on these two questions.) When it came to fair compensation, it didn’t matter whether black women lawyers were working in-house or in law firms. The compensation bias was across the board.

Sexual Harassment

No study about gender discrimination and racial bias would be complete without a survey of sexual harassment in the workplace. About 25% or women reported unwelcome sexual harassment at work (compared to 11% of men of color and 7% of white men). One in 8 white women and 1 in 10 women of color even reported losing career opportunities after saying no to sexual advances at work. However, 70% of all respondents reported experiencing sexist comments, stories, and jokes in the legal profession.

All together, this study casts the legal industry in a grim light. Joan C. Williams of the Center for WorkLife Law told the ABA Journal:

“The implication of this report is that women and people of color have been invited into these high-stakes, high-status workplaces, like the law, but often are expected to play a very specific role. . . . They have to prove themselves more than white men, and are often expected to be worker bees who don’t grab the limelight or the highest compensation. And the same mistake can be more costly for a woman or person of color than the identical mistake for a white man.”

Black Women Lawyers Can Fight Back Against Gender Discrimination in the Law

When implicit bias and small-scale discrimination create disparities at work, the study suggests there may be systemic changes law firms can make to change the culture. The study report includes Bias Interrupters Tools for law firms and in-house attorneys. These strategies can help combat the baked-in assumptions that cause gender discrimination and racial bias to continue throughout the industry. The details of these tool kits will be discussed in a future blog post.

The good news is that black women and others facing gender discrimination and racial bias in the legal profession do have the power to fight back. Federal law prohibits the kind of discrimination in hiring, pay, and workplace treatment documented in the study. When black women find themselves passed over for promotion or facing the choice between a sexual encounter and the loss of a job, they can turn to the Equal Employment Opportunity Commission, or a private gender discrimination attorney for help enforcing their rights under Title VII of the Civil Rights Act.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys can help. We will review your situation and help you plan a strategy to confront gender discrimination and racial bias in your law firm and pursue options in or out of court. Contact Eisenberg & Baum, LLP, today to talk to an employment discrimination attorney.

EEOC Reviews Stopping Sexual Harassment in Workplace Culture

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The Equal Employment Opportunity Commission (EEOC) is responsible for enforcing the nation’s federal sexual harassment and gender discrimination laws. In a recent public meeting, the agency recognized the best strategy for stopping sexual harassment in workplace culture is through prevention, not litigation. Now the agency has published materials for employers looking for new ways to promote a healthy workplace.

In this blog post, I will review the Equal Employment Opportunity Commission’s recent public meeting (held on October 31, 2018) entitled “Revamping Workplace Culture to Prevent Harassment.” I will discuss the EEOC’s preliminary FY2018 sexual harassment data and the steps taken by the agency to stop sexual harassment in workplace culture. I will also address options for the victims of sexual harassment for whom preventative efforts came too late.

EEOC Sees Sexual Harassment Complaints On the Rise in 2018

The EEOC released its preliminary sexual harassment data for the fiscal year 2018, and the results show a country ignited by the #MeToo movement. The EEOC experienced a 13.6% increase in sexual harassment charges within the agency and a 50% increase in sexual harassment lawsuits. Of the 66 lawsuits the EEOC filed, 41 involved sexual harassment complaints. All together, the EEOC recovered nearly $70 million for sexual harassment victims between conciliation and litigation. Visits to the EEOC’s sexual harassment webpage have also double over the past year.

Public Meeting Focuses on Prevention of Sexual Harassment in Workplace Culture

In light of the #MeToo and #TimesUp movements, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace on June 11, 2018. The Special Task Force heard from experts across several industries about techniques and trends in prevention of sexual harassment in workplace culture.

Ultimately, that work culminated in a public meeting on Wednesday, October 31, 2018, in which another panel of experts discussed the need for a holistic approach to preventing sexual harassment. Those who testified emphasized that to stop sexual harassment, leaders need to be focused on changing the sexually charged cultures in some workplaces. They focused on training approaches and holistic solutions to the problem of sexual harassment. And they emphasized that any change must start from the top down.

“Leadership and accountability set the tone and the expectation that harassment will not be tolerated in a workplace,” said Victoria A. Lipnic, Acting Chair [in a press release related to the meeting]. “Over the past year, we have seen far too many examples of significant gaps in both areas. Our witnesses today stressed how both leadership and accountability must also be driven throughout an organization from the line employees, to the supervisors, to the CEO, and to the Board.”

The Special Task Force heard from:

  • Veronica Girón, of the Ya Basta Campaign, and Alejandra Valles, the Secretary-Treasurer of SEIU United Service Workers West, who testified to training for janitors on how to respond in the moment of sexual harassment.
  • David G. Bowman, a partner at Morgan, Lewis & Blocius, who spoke of the need for a multi-faceted campaign including leadership, workplace culture assessment, and inspirational training formats.
  • Anne Wallestad, of BoardSource, who spoke on how boards can provide leadership and accountability for their non-profit organizations.
  • Rob Buelow of EVERFI, who explained how live and web-based training can complement each other to create a harassment prevention program.
  • Christine Porath, a business professor at Georgetown University, who testified to the benefits of civility training.
  • Mary C. Gentile of Giving Voice to Values, who spoke of value-driven training.

EEOC Distributes Promising Practices for Preventing Harassment

The public meeting emphasized the need for employers to adopt proactive measures to prevent sexual harassment in workplace culture. In connection with the meeting, the EEOC published its Promising Practices for Preventing Harassment, which provides a guide to employers looking to adopt best practices at work. The report centered around five core principles which the EEOC had found effective in preventing and addressing harassment:

  1. “Commitment and engaged leadership;
  2. Consistent and demonstrated accountability;
  3. Strong and comprehensive harassment policies;
  4. Trusted and accessible complaint procedures; and
  5. Regular, interactive training tailored to the audience and the organization.”

It provided best practices and strategies under each of the core principles, including:

  • Comprehensive, easy to understand, and regularly communicated harassment policies
  • Fully resourced complete systems including multiple means of reporting
  • Regular, tailored, effective training for employees, team leaders, supervisors, and managers
  • Prompt, consistent, and proportionate disciplinary responses to sexual harassment
  • Strong prohibitions against retaliation
  • Emphasis of confidentiality within the process

As a best practice, the EEOC recommends that any strategy be reviewed and updated regularly. The agency also recommended using anonymous employee surveys as a way to measure sexual harassment in workplace culture.

When Prevention Strategies are Not Enough

It takes time, and a concerted effort to change a hostile work environment prone to sexual harassment and gender discrimination. The EEOC’s 2018 statistics suggest that sexual harassment is not going away. For those who face discrimination now, there need to be clear paths to corrective action, both within and outside of the company. When employees face sexual harassment in workplace culture they need to feel safe:

  • Filing complaints with their HR department, supervisor, or union representative
  • Speaking to an employment discrimination attorney
  • Talking to coworkers and clients who may have witnessed the event
  • Filing an EEOC complaint
  • Starting a state or federal lawsuit to change workplace behavior

At Eisenberg & Baum, LLP, our experienced gender discrimination and sexual harassment attorneys have decades of experience protecting the women from sexual harassment in workplace culture. We use informal negotiation, arbitration, and traditional Title VII litigation to advocate for innovative prevention strategies to protect our clients and make their offices and work sites better places to work. Contact us to schedule a consultation.

Miscarried from Pregnancy Discrimination at Work? What are Your Options?

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Losing a baby is one of the worst feelings in the world. No legal case will bring your child back after you miscarried from pregnancy discrimination. But you may have options to receive compensation that could help with medical costs, time off work, and other damages related to the loss of your child.

In this post, I will review a New York Times report of a shipping warehouse where women miscarried from pregnancy discrimination at work. I will review the options available for pregnant women to seek accommodations for their limited physical abilities while carrying their child. And I will explain what they can do if pregnancy discrimination causes them physical harm, or miscarriage.

Shipping Warehouse has a History of Women Who Miscarried from Pregnancy Discrimination

In its article, “Miscarrying at Work: The Physical Toll of Pregnancy Discrimination” the New York Times reported on a shipping warehouse contracted to provide cell phones for Verizon. The warehouse, near the Tennessee/Mississippi border, has a history of problems with pregnancy discrimination. The Times described the scene:

“If you are a Verizon customer on the East Coast, odds are good that your cellphone or tablet arrived by way of a beige, windowless warehouse near Tennessee’s border with Mississippi.

“Inside, hundreds of workers, many of them women, lift and drag boxes weighing up to 45 pounds, filled with iPhones and other gadgets. There is no air-conditioning on the floor of the warehouse, which is owned and operated by a contractor. Temperatures there can rise past 100 degrees. Workers often faint, according to interviews with 20 current and former employees.”

It was in that setting that Erica Hayes, age 23, miscarried from pregnancy discrimination. She was in her second trimester of her first pregnancy. She had asked her supervisor to give her a lighter assignment, but her boss repeatedly said no. Then, in January 2014, after a eight-hour shift lifting some of the heaviest boxes in the building, Hayes lost her baby in the warehouse bathroom.

The Times reports that three other women in the warehouse also had miscarriages that year. All of them had asked for light duty. Some even brought in doctors’ notes recommending lighter work or shorter shifts. But their requests were ignored or denied.

Pregnancy Discrimination at Work is Illegal

Federal law prohibits pregnancy discrimination at work. The law prohibits employers from basing any part of employment on a woman’s pregnancy. That includes hiring, firing, and assignments on the job. When a woman’s pregnancy or childbirth temporarily makes her unable to do her work for medical reasons, the employer must treat her just like any other temporarily disabled employee. Depending on the policies at work, this may include:

  • Paid time off
  • Unpaid leave
  • Light duty
  • Alternate assignments
  • Other reasonable workplace accommodations

The New York Times stopped there in its reporting on miscarriage at work. It took the position that women in physically demanding jobs are not protected from physical injury during their pregnancy. But that is not entirely true. Pregnant women also have rights under the Americans with Disabilities Act (ADA).

ADA Protects Pregnant Women in Physically Demanding Jobs

Many of the medical conditions that come with pregnancy are considered disabilities under the Americans with Disabilities Act. If a pregnant mother can demonstrate a medical disability, her employer may be required to provide reasonable accommodations for that disability. As long as it does not create an undue hardship or significant difficulty or expense for her employer, she can request adjustments to her work based on her medical need. Depending on the facts in her case, a pregnant mother may also have a claim for gender discrimination or violations of the Equal Pay Act related to pregnancy discrimination.

When women are denied reasonable accommodations for their pregnancy-related disabilities, they may be able to file a complaint with the Equal Employment Opportunity Commission (EEOC) or in federal court. When the denial has caused serious physical harm, or if you have miscarried from pregnancy discrimination suffered at work, your employer may be required to compensate you for damage caused by its decision to refuse accommodations.

The Pregnancy Discrimination Act may not require your employer to go above and beyond company policy to accommodate your medical needs during your pregnancy. But that doesn’t mean you don’t have options. At Eisenberg & Baum, LLP, our experienced gender discrimination attorneys know how to weave those laws together to create a safety net for our clients, and help them be compensated if they miscarried from pregnancy discrimination. We will review your case and help you decide when and how to file a complaint. Contact us today to schedule a free consultation.

What Does Male Gender Discrimination Look Like?

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When you think of gender discrimination, you most likely imagine a powerful man in a three-piece suit looking down on his female secretary. Or maybe you think of the hostile work environment created when pornography is found on the factory floor. But what about when the victim is a man?

What does male gender discrimination look like?

In this blog post, I will answer the question of whether men are protected under Title VII. I will review what male gender discrimination looks like, who may cause it, and what options a man facing a hostile work environment has.

Title VII Protects Men Too

The federal anti-discrimination law, Title VII of the Civil Rights Act, protects against unequal treatment based on a person’s sex or gender (among other traits). The victim of that illegal conduct can be a man or a woman — the law does not discriminate. No matter the gender of the victim, it is unlawful for an employer or potential employer to use a person’s gender as a basis for decisions connected to:

  • Hiring
  • Firing
  • Wages or Salary
  • Promotions
  • Raises or bonuses
  • Shift assignments or duties

An employer is also required to take reasonable steps to respond to complaints of gender discrimination by its supervisors, managers, employees, and even customers. If the conduct is severe or frequent enough that a reasonable person would be made uncomfortable, an employee — male or female — may be able to file a complaint with the Equal Employment Opportunity Commission (EEOC), or in federal court.

Examples of Male Gender Discrimination

Gender discrimination against men can be as serious, and as varied, as it is against women. Any biased employment decisions or sexually hostile work environment can be the basis for a male gender discrimination complaint. But because men are as a whole less likely to discuss their experiences, it can be difficult to know if what you are facing at work counts as male gender discrimination. Here are a few examples of what that might look like:

Female Superior Makes Sexual Advances

In December 2017, in the midst of the #MeToo movement, the Kansas City Star reported a decade-old sexual harassment allegation against local Democratic Candidate for Congress, Andrea Ramsey. Ramsey was a vice president of human resources at the time of the alleged gender discrimination. She was said to have made “unwelcome and inappropriate sexual comments and innuendos” toward a male subordinate, Gary Funkhouser. When he refused those advances, he was fired. When women bosses approach male employees, connecting sexual requests to job performance, it is often illegal male gender discrimination.

Male Employees Treated Worse in Women-Dominated Industries

While men have traditionally been the wage-earners in most families, and are known to hold a disproportionate percentage of executive positions, there are certain industries and jobs where women have historically held the power. Teachers, nurses, and child care providers, for example, can sometimes face male gender discrimination because of their sex or gender. This could cause them to be passed over for employment or promotion or receive worse performance reviews because they do not conform to gender stereotypes connected to the industry. When men are treated worse than women doing the same job, it can sometimes be male gender discrimination.

Men Sexually Harass Other Men on the Job

Also in 2017, the EEOC filed a lawsuit against a tourism company based on same-sex sexual harassment. The president of the company was alleged to recruit young men for his companies and then sexually harass them by:

  • Inviting them to sex parties
  • Showing them pornographic videos and photos
  • Demanding they expose themselves if they wanted to be hired
  • Basing employment opportunities on sexual acts
  • Engaging in unwanted, non-consensual sexual acts

Employees complained about the president’s behavior, but were forced to quit or faced retaliation rather than receiving any meaningful response. When a male superior demands sexual conduct of his male employees, it is illegal sexual harassment, and likely criminal sexual assault.

Male Harassment Connected to Other Forms of Discrimination

In other cases, the male gender discrimination doesn’t stand alone. In late 2017, the EEOC sued Golden Corral because its employees were harassing a disabled dishwasher with high-functioning autism. An assistant manager at the restaurant requested oral sex and sexually assaulted the disabled worker in addition to harassment based on his disability. When employees target coworkers with sexual conduct and jokes, even when connected to a person’s disability, it can amount to illegal male gender discrimination.

Gender Discrimination for Not Being Male Enough

Men also face gender discrimination when they don’t fit into stereotypes about their gender. For example, in Wildhaber v St. Louis County, MO, a police officer sued for male gender discrimination. He was passed over for promotion because he needed to “tone down [his] gayness” and act more like a man. When a man is passed over for employment advancement because his sexuality, appearance, or behavior does not fit male stereotypes, it can be illegal male gender discrimination.

Men Denied Paternity Leave to Be With Their New Children

Another form of male gender discrimination happens when men are refused family leave available to women after the birth or adoption of a new child. In EEOC v Estee Lauder Companies, Inc., the EEOC sued because the makeup company did not give men access to the same parental leave benefits available to women. When company policy treats men and women differently in awarding benefits or family leave, it may be a form of gender discrimination.

What Men Should Do if Facing Gender Discrimination

Many men are hesitant to say anything in the face of gender discrimination. They may be concerned that a complaint will make them seem less “manly” or believe that they should just “man up” and deal with the harassment. But men have just the same right to be free from a sexually hostile work environment as women.

If you have been the victim of male gender discrimination, the first step is to object. You can simply tell the person offending you to stop, file a formal complaint with your HR department or union, or go outside your office to the EEOC or federal court. The steps you take depend on the size of your company, whether you belong to a union, and the nature of your complaint.

But you don’t have to do it alone. At Eisenberg & Baum, LLP, our sexual harassment attorneys know what male gender discrimination looks like, and how to stop it. We will help you collect your documents, file the necessary claims, and represent you in court. Contact us to schedule a consultation.

 

Sexual Harassment in Lending Makes Business Harder for Women Entrepreneurs

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Starting a business is hard for anyone. Entrepreneurs looking for start-up capital often face uphill battles convincing investors that their product or service is worth the risk. But sexual harassment in lending makes it even harder for women entrepreneurs to get from making a pitch to opening a fully-funded business.

In this blog post, I will discuss the gender discrimination and sexual harassment in lending that women entrepreneurs face. I will address how hedge fund managers and investment bankers use promises of funding in quid pro quo sexual misconduct. And I will review what business owners can do when they are denied lending because of their gender or unwillingness to trade sex for funding.

Women Entrepreneurs Start Businesses Everywhere

The Department of Labor estimates that approximately 36% of all businesses are owned by women, and another 2.5 million are owned equally by male and female partners. Women-owned businesses account for over 8.4 million employees and $264 billion in payroll. Women entrepreneurs are opening businesses in every industry group, from child care to logging. Among minority communities, women-owned businesses make up an even larger share of the workforce. Women own over 59% of African American businesses and 44% of Hispanic businesses.

Women Face Gender Discrimination and Sexual Harassment in Lending

But women have not seen the same advancement in lending capital. A 2016 study by Biz2Credit, an online small-business funding marketplace shows that women are approved for loans 33% less often than their male counterparts. Minority business owners fare even worse.

Often, women seeking venture capital for their startup businesses are faced with gender discrimination and sexual harassment in lending applications and pitches. The venture capital industry is almost entirely male. According to a 2016 report, only 8% of investing partners at active venture and microventure firms are women. At the top 100 firms, that number drops to 7%. Another report reveals that 89% of venture capitalists are male, and 87% are white.

That gender gap has created a culture of sexual hostility. In 2017, the New York Times reported the stories of over two dozen women who faced sexual harassment in lending within the technology start-up industry. Their stories pointed high-profile venture capitalists like Chris Sacca of Lowercase Capital and Dave McClure of 500 Startups. The women reported that after making their pitch to male lending officers, they were touched without permission, hit on, and asked for sexual favors. This behavior was particularly challenging because the women entrepreneurs were not in a position to say no.

“There is such a massive imbalance of power that women in the industry often end up in distressing situations,” said Susan Wu, an entrepreneur and investor.

Saying No to Sexual Advances Puts Up Roadblocks to Women-Owned Businesses

When the capital you need to start your business comes with that kind of strings attached, saying no to sexual advances can create hurdles to meeting your funding needs. American Banker reports:

“Without access to small loans, women and minority business owners are at a competitive disadvantage. They must rely on personal savings, loans from friends, crowdsourcing and credit cards – when those options are available. Or, they have to seek capital from riskier lenders, increasing debt burdens and diverting funds from business operations.”

Saying no to one lender’s inappropriate sexual advances can also have wide-ranging effect throughout the industry. When one hedge fund or venture capital company declines funding, for any reason, it can make it harder to convince other investors your product is worth the risk.

Options for Women Entrepreneurs Facing Sexual Harassment in Lending

Women facing sexual harassment in lending may also have trouble exercising their right to be free from gender discrimination. Title VII, for example, bases its protections against sexual harassment on the employee/employer relationship. But entrepreneurs are their own bosses. The lenders demanding quid pro quo sexual favors work for another company.

The federal Equal Credit Opportunity Act, 15 USC section 1691, says it is unlawful for a creditor to discriminate against applicants based on sex. Depending on the nature of the loan, and if the investor would qualify as a “creditor”, a discrimination attorney may be able to use that law to confront sexual harassment in lending. However, this law is usually used in a consumer context, rather than between businesses.

California, for one, has enacted a state law that explicitly prohibits sexual harassment between anyone with a business, service, or professional relationship. In 2017, this law was amended to explicitly include investors, trust officers, financial planners, loan officers, and others who may have control over whether a woman entrepreneur receives funding. Since many venture capital companies are based in California, that law may give women entrepreneurs a new way of ending sexual harassment in lending.

Finding funding for your new startup shouldn’t have to include enduring unwanted sexual advances or contact. At Eisenberg & Baum, LLP, our sexual harassment attorneys know that unreasonable demands don’t only happen within the company organizational chart. We can help you review your case, and your legal options, to find a solution to the gender discrimination you experience. If you are a woman entrepreneur facing sexual harassment in lending, contact us today to schedule a free consultation.