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Changes to State Laws in California and New York Strengthen Protections for Victims of Sexual Harassment in the Workplace

Laura Wilson

In recent years, a number of high-profile workplace sexual harassment cases and the #MeToo movement that followed have sparked an important conversation in our country about workplace harassment and equality. This conversation and the stories shared by many of the victims who have bravely come forward often have a common thread—too often allegations of workplace harassment are swept under the rug in order to protect the reputation of the individual harasser or the company.
Current laws place an undue burden on victims of harassment to prove misconduct. Harassment victims in most states face a very short window within which to file a complaint, in some cases no more than 180 days, from when the harassment occurred. Despite training programs for employees and supervisors, workplace harassment persists. Harassment continues to infect the workplace not because employers, supervisors, and victims are unable to recognize signs of harassment, or don’t know how to report it, but because the legal standard for suing someone for sexual harassment is impossibly high.
Under federal law, there’s a requirement that the harassment be either severe or pervasive. Some courts have found that conduct the public would recognize as harassing, such as repeated cat calls or verbal harassment, is not enough to rise to the level of harassment. Under cases decided by the U.S. Supreme Court, sexual harassment plaintiffs cannot claim a hostile work environment unless they complain to their employer and give them the opportunity to remedy the situation. The net effect of these legal requirements means that very few harassment victims will see their lawsuit reach a jury.
Recently several states, including California and New York, have made significant changes to their state laws to better protect victims of sexual harassment. In California, new laws which go into effect this year include a requirement that non-supervisory employees undergo sexual harassment prevention training and expand personal liability for sexual harassment to include investors, elected officials, lobbyists, directors and producers. The California Sexual Harassment Omnibus Bill the California Legislature made several important points: (1) Actionable harassment need only make it more difficult to do the job; (2) A single incident of harassment is sufficient to support a claim of hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment; (3) The existence of a hostile work environment is based on the totality of circumstances and a single discriminatory remark may be relevant evidence of discrimination; (4) The legal standard for harassment should not vary by type of workplace; (5) Harassment cases are rarely appropriate for summary judgment, meaning they should not be dismissed before trial. Finally, California also placed restrictions on confidential sexual harassment settlement agreements so that these agreements cannot include language that prevents disclosure of factual information related to a claim of sexual assault, sexual harassment, sex discrimination, or retaliation.
This past August, New York’s Governor signed into law amendments to the state’s Human Rights Law to strengthen protections for women and LGBTQ individuals and eliminate many of the barriers victims face in bringing forward complaints of sexual harassment. One of the most impactful changes removes the “severe or pervasive” standard, lowering the burden a victim has to prove to bring a claim in civil court. Under the new law, whether or not an employee complains about the discrimination to the employer no longer determines the employer’s liability. The amendments expand New York’s law to apply to all employers in the state, regardless of size, and also protects domestic workers and anyone providing services in the workplace, including independent contractors, vendors, and consultants. The law also includes potential awards of punitive damages for victims of employment discrimination, and requires New York courts to award attorney fees to any successful plaintiff in employment discrimination cases.  This change will help bridge the gap in access to justice, especially for low wage workers who often cannot afford to hire an attorney.
While the steps taken to protect workers from sexual harassment in California and New York are encouraging, more needs to be done across the country to change employment laws and protect workers nationwide. To increase protections for the victims of harassment, instead of protecting harassers, Congress should follow the lead of states like California and New York, and strengthen the current laws.
For more information about the sexual harassment in the workplaces and recent changes in the law, see:

New York’s New Legislation Removes Significant Barriers for Victims of Sexual Harassment 

In a Post-Weinstein World, Will Laws Change to Support Workplace Sexual Harassment Victims?

Oregon Enacts Sweeping #MeToo Law

The Problem With HR

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How an Employer Asking About your Prior Salary Keeps Women Earning Less than Men

Clayton Prickett - Law Clerk at Freking Myers & Reul

Overall, women in the U.S. are paid less than men for the same jobs. One thing that contributes to this wage gap is that employers are allowed to ask job applicants what they are currently earning. Then, employers base the salary that the new employee is offered on his or her previous salary. This practice affects women more than men because it perpetuates pay inequalities. This means that when an employer uses an employee’s prior salary, it makes it harder for women to be paid equal to men. For this reason, many states and cities, including Cincinnati, are passing laws that prevent an employer from asking about an employee’s prior salary.
One reason an employer asking about a job candidate’s prior salary affects women more than men is known as the “unemployment penalty.” The unemployment penalty happens when someone leaves the workforce, and his or her salary is reduced when they return to work. In a study done by PayScale, an employee who has been out of work for less than three months faces a 3.4% “penalty” when returning to work, while an employee who has not worked in over a year is hit with a 7.3 % “penalty.” Because women are more likely to take breaks from working to care for a child or other family member, and because their breaks are more likely to last longer than a year, the “unemployment penalty” adds to the pay gap between women and men.
Several cities and states have passed laws that prohibit asking job candidates about their prior salary. These laws are aimed at helping to narrow the pay gap between men and women. The following states have prohibited all employers from asking about prior salary: California, Connecticut, Hawaii, Massachusetts, Oregon, and Vermont. In Delaware, employers with more than four employees may not ask about prior salary. By executive order, Illinois, Michigan, New Jersey, New York, North Carolina, and Pennsylvania state agencies are prohibited from asking about prior salary. Fourteen cities across the country have enacted ordinances that prohibit an employer from asking about prior salary.
On March 13, 2019, Cincinnati joined other cities to make asking job applicants about their salary history or current earnings illegal. The law goes into effect on March 13, 2020, and it applies to all employers located within the City of Cincinnati with more than 15 employees.
Banning employers from asking about salary history is a step towards closing the pay gap entirely. These laws will not solve the problems women face in the workplace overnight, but it is a step in the right direction towards equal pay for men and women.

For further reading, see the following links:
THE STATE OF THE GENDER PAY GAP 2019
CAREER DISRUPTION IMPACTS WAGE
STATE AND LOCAL SALARY BANS

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Equal Pay for World Cup CHAMPIONS’ Play– Update

Laura Wilson

On July 7, 2019, the US Women’s National Team (USWNT) made soccer history when they defeated The Netherlands to claim their fourth Women’s World Cup title. As we noted in our June 27 Blog post, the USWNT had been fighting not only to once again claim victory in the World Cup championship, but also for equal pay from their employer, the US Soccer Federation. See our Blog US Women’s Soccer Team Fights for Equal Pay for Equal (or Better) Play.
In March, 28 members of the USWNT filed a lawsuit against the U.S. Soccer Federation accusing U.S. Soccer of “institutionalized gender discrimination,” a violation of the Equal Pay Act and the Civil Rights Act. In their lawsuit, the USWNT alleges they receive far less money than the U.S. men’s team despite producing superior results and generating more revue for the U.S. Soccer federation. As the World Cup got underway, the USWNT players and the US Soccer Federation agreed to mediation, signaling that the parties may be trying to work out a solution.
The USWNT is shining a spotlight on the issue of equal pay for equal work and thanks to their efforts, the issue is receiving the attention of congressional leaders. Congressional leaders and team supporters are calling on the US Soccer Federation to end the pay disparity between the men’s and women’s teams. Soccer fans throughout the country literally greeted the USWNT on their victory tour with chants of “Equal Pay.” More than 50 members of Congress have written to the U.S. Soccer Federation demanding to know why, despite all their success, players on the U.S. women’s team are still receiving inferior wages, working conditions, and investment. On July 9, 2019, West Virginia Senator Joe Manchin introduced a bill in the U.S. Senate which would prohibit the use of federal funds for the 2026 Men’s World Cup, to be hosted throughout North America, including several U.S. cities, unless the United States Soccer Federation provides equitable pay to both the Women’s and Men’s national teams. See Manchin’s proposed bill.
Research shows that leveling pay between men and women has economic benefits including reducing the poverty rate among working women by half, increasing women’s participation in the job market, and adding billions to the U.S. economy. Closing the gender pay gap is important not just for the World Cup champions, but for working women throughout the Country.

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Iboga plant threatens professors’ jobs

Erin Heidrich

Most people have never heard of Tabernanthe iboga, an African shrub that produces an orange fruit, but one grew inside of the Miami University conservatory for more than a decade.  Now the small shrub threatens the careers of two tenured Miami University professors.
John Cinnamon is an Associate Professor of anthropology at Miami University.  Dr. Cinnamon has conducted academic research on religious practices in Gabon, a country in Central Africa.  In Gabon, the root of the iboga plant is called “the sacred wood.”  The root bark of the iboga plant is consumed in small quantities, which produces a hallucinogenic effect.  The root bark is used in religious initiations and healing ceremonies.  When chemically refined, the hallucinogenic compound in the root bark is called ibogaine, which has recently attracted attention for its potential in treating opioid addictions.  Ibogaine is currently a scheduled controlled substance in the United States, although the Tabernanthe iboga plant is not.

In 2004 or 2005, the Miami University Conservatory received Tabernanthe iboga seeds.  Dr. Cinnamon has made many research trips to Gabon and has hosted Gabonese visitors in his home.  While he has no specific memory of acquiring Tabernathe iboga seeds, he believes it is possible that they were given to him during a research trip or by a visitor to his home.  Dr. Cinnamon believes he may have given the seeds to the conservatory manager at the time, who worked under Dan Gladish, the Director of Miami University’s Conservatory.  Dr. Cinnamon believed the plant may be of some academic interest to the Conservatory and the University community.  The Conservatory proceeded to grow a Tabernanthe iboga plant from the seeds, and the shrub was displayed in the Conservatory along with other rare and exotic plants.
In late 2018, when the plant had been growing at the Conservatory for more than a decade, the Miami University Police Department (MUPD) and United States Drug Enforcement Administration (DEA) received reports that a student in the conservatory had taken Tabernanthe iboga seedlings home.  On November 28, 2018, DEA agents confronted Dr. Cinnamon in his office and asked him questions about the plant.  Dr. Cinnamon told the DEA agent what he knew.  Neither the MUPD nor the DEA charged Dr. Cinnamon with any crimes, likely because the plant itself is not a scheduled drug, and because the plant was grown solely as a matter of academic interest, and not for any nefarious purposes.
Despite this, Provost Phyllis Callahan has recommended that Dr. Cinnamon and Dr. Gladish be terminated. The University also forced the Conservatory Manager, Brian Grubb, to resign under threat of termination.
This matter has important implications for First Amendment rights and academic freedom.  Tabernanthe iboga is a rare plant of academic interest.  The AAUP reports that the University of Colorado, U. C. Davis, the New York Botanical Garden, The Ohio State University, Smith College, The University of Connecticut, and the U.S. Botanical Gardens house or have housed specimens of the shrub.
This matter has received significant media attention. Miami University’s chapter of the American Association of University Professors has initiated a petition in support of Dr. Cinnamon and Dr. Gladish that has over 2,200 signatures. Professional scientists, alumni, faculty, parents, donors, and professional organizations have expressed support by signing the petition and writing letters to the University President. The American Anthropological Association has stated that the “cultivation and curation of the iboga plant” at Miami University “was clearly in the spirit of advancing ethnobotanical knowledge,” and that Miami University’s decision to pursue termination of these valued professors is “serious overcorrection” that is in “direct contradiction” of principles of academic freedom.  Miami University’s severe approach to the Tabernanthe iboga shrub threatens to chill academic research across the country.
It remains to be seen whether Miami University will follow Dr. Callahan’s recommendation to terminate Dr. Cinnamon’s and Dr. Gladish’s employment.  Dr. Gladish will face a termination hearing in the fall.  Dr. Cinnamon is on extended medical leave, but will face his own hearing when he returns, likely in the spring of 2020.  Freking Myers & Reul is proud to provide legal representation to Dr. Cinnamon in this process, and to protect these invaluable academic liberties.

Follow these links for more information:

A DEA Visit, A Psychedelic Plant, And A Controversy Bloom At Miami University

The iboga tree affair: A confiscated shrub, hallucinogenics and suspended professors rile Miami University campus

Much Ado About Iboga

MU AAUP chapter protests severity of professors’ punishment

Miami University faculty members could lose jobs over psychedelic plant in conservatory

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Who Benefits From Paid Family Leave? American Workers and Employers

Laura Wilson

The United States is one of only a handful of countries in the world that doesn’t guarantee paid time off to new mothers and the only industrialized country that doesn’t guarantee its citizens paid family leave. While an existing federal law known as the Family and Medical Leave Act of 1993 guarantees leave for full time employees who have been at their job for 12 months or more, the law only provides the right to unpaid leave. In practical terms, that means that often only those higher wage earners who can afford to take unpaid time off for a new baby, sick family member, or personal illness are able to take advantage of the law’s protections. Taking unpaid time off is simply not an option for many American workers.
Americans overwhelmingly support paid family leave, by 85 percent, according to some estimates. Several states — including Connecticut, California, Washington State, Massachusetts, New Jersey, New York and Rhode Island — as well as the District of Columbia, have passed paid leave laws in recent years. At the federal level, leaders from both sides of the aisle have expressed support over the past several months for some form of a paid family leave program amidst the growing acknowledgement that something needs to give for working parents in the U.S.
Senator Kirsten Gillibrand of New York and Representative Rosa DeLauro of Connecticut, both Democrats, reintroduced the Family Act, which would provide Americans up to 12 weeks of paid leave at 66 percent of their monthly wages. The proposal is meant to build on the unpaid leave offered under the Family and Medical Leave Act. The benefits in the proposal would apply to every American who works full-time — and potentially even those who are part-time, temporary or self-employed. Among other things, the Family Act considers “family leave” to include birth or adoption, and serious health conditions including those affecting a child, parent, spouse or domestic partner.
Republican Sens. Marco Rubio of Florida and Mitt Romney of Utah, with House co-sponsor Ann Wagner of Missouri, have unveiled a paid family leave bill Opens a New Window. which would provide paid leave for new parents (though it does not address leave for personal illness or to care for another family member). Under their proposed legislation, new parents would be allowed to pull forward up to three months of their social security retirement benefits to use for leave following the birth or adoption of a child. Then at retirement, they would be required to delay claiming their benefits by three to six months.
Regardless of which legislative proposal succeeds in the end, it’s clear that both American workers and the companies they work for stand to benefit from paid family leave. Providing workers with paid family and medical leave ensures that they are able to take extended leave, with pay, to care for a new child, recover from a serious illness, or care for an ill family member, and then return to their job afterward. Economic studies show that access to paid family leave significantly increases the likelihood that workers will return to their jobs instead of dropping out of the labor force, or spending time out of work to search for a new job.
Paid leave also helps to close the gender pay gap. It represents an important step for women’s economic security, especially for low-wage workers and women of color who are an increasing number of primary breadwinners for their families. Research shows that women with access to paid leave are significantly more likely to return to jobs at the same employer and for the same wages. That means they can build more seniority and experience in their jobs, helping to raise their earnings and close the pay gap.
Paid family leave also benefits employers. Businesses gain from retaining workers with firm-specific knowledge and skills, and from not having to bear the sizable costs of finding and training new employees. Companies also benefit from increased productivity and higher levels of employee satisfaction. As employers sink more resources into employee training, they are looking for ways to reduce turnover. Providing paid family leave helps companies directly address one of the root causes of attrition and absenteeism among employees— child-care issues, elder-care issues, and family issues.
The American workforce is increasingly multigenerational, and employees face growing caregiving responsibilities including infants, children, spouses, domestic partners and aging parents. Paid family leave means workers do not have to choose between taking care of a family member and losing or being forced to quit their jobs. Research shows that paid family leave improves financial security, especially for lower wage workers, improves productivity and retention of skilled workers, and bolsters economic growth. Paid family leave also strengthens families because caregivers can focus on the needs of their children during early childhood. Paid family leave helps close the gender wage gap by increasing the likelihood that women will return to their pre-leave employment, and increasing women’s participation in the job market overall.
With broad support from the American public, and research that clearly shows the benefits of paid leave for both workers and employers, it’s high time for the United States to join the rest of the industrialized world and make paid family leave available to all employees.
For more information on Paid Family Leave see:
The Economic Benefits of Paid Leave: Fact Sheet

Could the U.S. Get Paid Family Leave? It’s Looking Better Than Ever

Connecticut Set to Become 7th State With Family Leave Law as US Still Lags Behind Rest of Developed World’s Policies

The future of paid family leave

 

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