Tag Archives: NLRA

Love Is In The Air

General, , ,

I am happy to share my latest post to The SHRM Blog.

Marla: “Did you know that Sally is sleeping with Gregg?”

Todd: “I heard that. How long has this been going on?”

Marla: “Not sure. Jeff?”

Jeff: “I have no idea but I do know they are a couple.”

Karen: “No kidding. Have you noticed how Sally recently is going on business trips with Gregg for no business reason.”

Jeff: “It depends on how you define business.”

Marcia: “I heard she also got a big discretionary bonus, too.”

Marla: “She really….I’ll stop there.”

Let’s assume there is a personal relationship between Gregg and Sally.

Two issues probably jumped out at you:

Is the relationship entirely welcome and consensual?

Is there any sexual favoritism as the dialogue would suggest?

Of course, these issues are critical and why ordinarily it is important not to ignore rumors or gossip about romantic relationships where there are power differentials (and why a reporting requirement imposed on the person with power if he or she is intimate with someone over whom they have direct or indirect supervisory or institutional authority).

But there is a third reason to pay attention to such rumors, and it applies even if there is no personal relationship or sexual favoritism. That is, the rumors may create a hostile work environment for the woman who is the object of them.

Citing prior case law, the federal Court of Appeals for the 4th Circuit stated crisply last month in Parker v Reema Consulting Services:

As alleged, the rumor was that Parker, a female subordinate, had sex with her male superior to obtain promotion, implying that Parker used her womanhood, rather than her merit, to obtain from a man, so seduced, a promotion. She plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labelled as “sluts” or worse, prostitutes selling their bodies for gain.

In short, because “traditional negative…. stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society,” and “these stereotypes may cause superiors and coworkers to treat women in the workplace differently from men,” it is plausibly alleged that Parker suffered harassment because she was a woman.

If there is sexual favoritism, the person with power should be held accountable. But regardless of whether there is sexual favoritism, the rumors need to stop. Yes, there is an argument that sometimes the “gossip” could be protected by the National Labor Relations Act as it relates to terms and conditions of employment. But the NLRB risk of shutting down the sexist gossip must be balanced against the harassment risk of letting it continue.

This blog is not legal advice, should not be construed as applying to specific factual situations or as establishing an attorney-client relationship.

An Epic SCOTUS Decision on Class Action Waivers

In The News, , ,

I am pleased to share my latest article, written for Philadelphia Business Journal, on a recent ruling of the U.S. Supreme Court.

By a 5-4 vote authored by Justice Neil Gorsuch, the U.S. Supreme Court held in Epic Systems Corp. v Lewis that the National Labor Relations Act does not prohibit employers from using arbitration clauses in employment contracts to prevent workers from filing class actions over workplace issues.

Some describe this as a big win for employers. I think it can be described more accurately as an opinion that creates a decision point for employers.

As a purely legal matter, some employers may prefer one class claim before a judge than the specter of a large number of individual claims before an arbitrator.

As an employee and public relations matter, some employers may elect to exclude sexual harassment claims from any ban on class claims for the same reason that some employers are voluntarily taking the position that their mandatory arbitration agreements do not apply to any sexual harassment claims.

As a public policy matter, the decision likely will rejuvenate support for the Senate Bill entitled Ending Forced Arbitration of Sexual Harassment Claims, which has bi-partisan sponsorship.

The bill goes further than its title suggests, preluding mandatory arbitration of any claim of sex discrimination that could be brought under Title VII, such as pay equity claims, even if Title VII is not mentioned.

It should be noted that a bill that restricts mandatory arbitration, if applied only to sexual harassment, may not be as partisan as most of what we see in Washington.

In February, all 50 state attorney generals, Democrats and Republicans alike, signed a letter to Congress demanding that the law be changed to preclude mandatory arbitration of sexual harassment claims.

This would not be first time a Supreme Court decision spurred legislative action. Remember Lilly Ledbetter‘s loss before the high court only to have congress enact a law with her name?

Stay tuned—this story is far from done!