Employment LawEmployment Law Update

http://www.joneswaldo.com/wp-content/uploads/2018/12/MeToo_hashtag_digital_text_on_RGB_screen_2017-12-09_version_25_pattern-1280x960.jpg

A BUSY YEAR AT THE EEOC.  Last week, the Equal Employment Opportunity Commission released FY 2018 statistics reflecting ramped up outreach and enforcement efforts. The agency says it fielded over 554,000 phone calls and e-mails, and more than 200,000 inquiries regarding discrimination claims. Its online inquiry and appointment system resulted in 40,000 intake interviews with potential claimants. The EEOC filed 199 lawsuits against employers in the fiscal year—66 relating to workplace harassment alone—and filed “friend of court” briefs weighing in on significant employment law issues in 29 cases. The agency also substantially reduced its backlog of unresolved charges. Comprehensive statistics for FY 2018 will be available early next year.

#ME TOO BRINGS DRAMATIC INCREASE IN HARASSMENT CLAIMS. In a separate release, the EEOC reported that the national awakening that began a year ago with bombshell reports of sexual harassment by Hollywood power players has not only flooded the news and social media accounts, but also resulted in dramatically more harassment-related contacts and inquiries with the agency. In fact, the number of hits on the EEOC’s sexual harassment webpage more than doubled in FY 2018. Charges alleging sexual harassment increased by 13.6 percent over the prior fiscal year.  While increased interest and reporting was perhaps a predictable outcome of #MeToo, it is worth noting that there was also a significant increase—23.6 percent— in the percentage of charges in which the EEOC found “reasonable cause” to believe that harassment occurred.  All of this underscores that harassment prevention efforts are as important as they have ever been. Need ideas? The EEOC has some suggestions. . .

EEOC PANEL OF EXPERTS RECOMMENDS “HOLISTIC APPROACH” TO HARASSMENT PREVENTION. On October 31, 2018, the EEOC held a public meeting entitled “Revamping Workplace Culture to Prevent Harassment.” The meeting included a panel of industry experts who advocated for a “holistic approach” to change workplace culture. Commissioner Chai R. Feldblum summed up the testimony, saying: “Today’s testimony underscores that to really tackle the problem of workplace harassment, we need to change workplace culture, hold people accountable, and have the right policies, procedures, and training. No one element, alone, will suffice.” Panelists noted the vital need for a healthy top-down culture, actively supported and modeled by everyone from the board to managers and supervisors. Rather than passively responding to harassment complaints when they arise, organizations must create a culture in which harassment behaviors are not tolerated. Training should be interactive and should focus not only on what constitutes unlawful behaviors, but also on the higher ideals of civility, respect, and making decisions in line with the company’s values. Video of the meeting is available at EEOC.gov, and a full transcript will be posted there soon.

PROTESTS AT GOOGLE LEAD TO REVAMP OF HARASSMENT POLICY. November began with a massive walkout by Google workers protesting the company’s handling of sexual harassment claims. More than 20,000 employees around the world participated, spurred by a New York Times report that a former executive accused of sexual misconduct had received a ninety-million dollar exit package despite Google’s determination that the accusations against him were credible. Last week, Google responded with an announcement of multiple policy changes. CEO Sundar Pichai e-mailed all employees (and posted on the company’s external blog), saying “We recognize that we have not always gotten everything right in the past and we are sincerely sorry for that. It’s clear we need to make some changes.” Pichai pledged increased transparency regarding the handling of harassment complaints, better support for those reporting concerns, and updated and expanded anti-harassment training. Further elevating the importance of training, Google will now impose real consequences for not completing annual harassment training—in the form of a one-level hit to the employee’s performance review rating (e.g., an exceeds expectations rating would be reduced to consistently meets expectations). Support for employees raising concerns will include opt-in services such as counseling, EAP support, check-ins, and other accommodations. Employees now may also bring a colleague when reporting harassment concerns, and during an HR investigation. A specialty team will be created to investigate all harassment concerns.

Notably, the company also pointed out that excessive alcohol use by the perpetrator is one of the most common factors in harassment complaints it receives, playing a role in about 20% of cases—a sobering (pun intended) and timely reminder as we approach the season of holiday parties. Senior leaders at Google will be charged with creating teams, events, and environments in which excessive alcohol use is discouraged. Ideas to achieve this include a two-drink limit or a drink ticket system.

Finally, Pichai announced that Google will now make arbitration of individual sexual harassment and assault claims optional, rather than mandatory. (Critics had argued that mandatory arbitration contributed to a harassment culture by avoiding transparency.) Google isn’t alone in this step. Facebook made a similar policy change regarding arbitration the following day. Microsoft and Uber recently ended mandatory arbitration of sexual harassment claims as well.

Has it been awhile since your organization evaluated its performance in preventing and addressing harassment? You may wish to consult with an employment lawyer to help identify possible areas for improvement. As the #MeToo movement enters its second year, it is clear that employers still have work to do.

SUPREME COURT ISSUES OPINION IN ADEA CASE.  In our October 2, 2018 update, we reported that the Supreme Court was set to consider an Age Discrimination in Employment Act (ADEA) case. The case is Mt. Lemmon Fire District v. Guido, and the Court issued its decision last week. The case was brought by two firefighters challenging their terminations from the Mount Lemmon Fire District, a political subdivision in Arizona. The Fire District argued that the ADEA did not apply because it had fewer than 20 employees. The issue was whether the ADEA’s 20-employee threshold applied only to private employers, or whether it also extended to state and local government employers. The Ninth Circuit Court of Appeals had held that the ADEA applies to all state and local governments, regardless of size, and that the Act’s 20-employee threshold applies only to private employers. This opinion conflicted with decisions of other circuits (including the Tenth Circuit, which has jurisdiction over Utah and several other states). On November 6, 2018, the Supreme Court unanimously settled the question, siding with the Ninth Circuit’s interpretation of the Act and concluding that the ADEA applies to all state and local governments, regardless of size.

Stay tuned to these updates for reports on other employment-related decisions from the Supreme Court this term.

SALT LAKE

170 S. Main St
Suite 1500
801-521-3200

PROVO

3325 North University Ave
Suite 200
801-375-9801

PARK CITY

1441 West Ute
Suite 330
435-200-0085

LEHI

3451 N Triumph
Suite 206
801-407-6522

ST. GEORGE

301 N 200 E
Suite 3-A
435-628-1627

CHICAGO

105 W. Adams
Suite 2800
312-244-9716