By Christine Hendrickson and Annette Tyman

Synopsis: Seyfarth’s Pay Equity Group is pleased to release two reference guides: the 2019 Developments in Pay Equity Litigation Report and the 3rd Annual 50-State Pay Equity Desktop Reference.

Today, April 2, 2019, is Equal Pay Day. As we reflect on the developments in equal pay laws and litigation in the past year, we continue to see a legal landscape that is rapidly evolving.

As our colleague, Camille Olson, testified in February on the Paycheck Fairness Act (H.R. 7) before the U.S. House Education & Labor Committee’s Subcommittee on Civil Rights and Human Services and the Subcommittee on Workforce Protections, which passed out of the U.S. House of Representatives last week, equal pay is an area of the law where employers have led “by proactively evaluating and modifying their pay practices, policies, and procedures, through voluntary compensation reviews and implementing educational programs to ensure compliance with the law.” We are proud to partner with you in these efforts.

Looking back at 2018 and forward to 2019 and beyond, we see four key trends:

  • A Push Towards Even Greater Transparency: In 2019, we are seeing employers even more willing to be transparent about pay and an increased appetite for additional data and metrics. Specifically, we are seeing additional requests for not just “pay gap” information but information about median pay and unadjusted pays statistics. Employers are weighing voluntary or mandatory (like in the U.K.) disclosures about pay. This raises additional concerns and, at the same time, provides additional opportunities. We expect this trend to continue. We discussed this on our webinar today, and we look forward to sharing more information about the how employers can evaluate if they have a pay gap or a gap in the data that explains how employees are paid. Watch this space.
  • The Possibility of Pay Data Collection by the EEOC: On March 4, 2019, the U.S. District for the District of Columbia issued an opinion vacating a stay of the EEOC’s collection of pay data as part of the EEO-1 Report filing. The pay data collection requirement was indefinitely stayed by Office of Management and Budget (“OMB”) in part because of questions around the EEOC’s burden estimates. The National Women’s Law Center and the Labor Counsel for Latin American Advancement filed suit challenging OMB’s decision. We are now waiting for clarification from EEOC of the timeline by which employers with more than 100 employees must provide pay data and hours worked for all employees. The impact of this development on the employer community cannot be understated and we are closely following these developments and will be in touch with guidance, if and when the EEO-1 pay data collection is required.
  • The Continued Passage of New, More Stringent Pay Laws: Since the beginning of 2018, we saw new equal pay laws passed in Illinois, New Jersey, and Washington state. Laws banning employers from asking candidates for employment about prior salary continues to be another trend. Salary history ban laws have been enacted in 7 states, 1 territory, and 7 cities, and several other counties and states are considering similar salary history bans. The 3rd Annual 50-State Pay Equity Desktop Reference outlines these changes at the state-level.
  • More Litigation: Not surprisingly, concurrent with these new laws and developments, the Seyfarth Pay Equity and Complex Litigation Groups have seen an increased interest by the plaintiff’s bar in litigation under the federal Equal Pay Act and analogous state laws. The primary targets for this new wave of litigation have been the health, legal and tech industries. Those cases are already generating new and intriguing law that has the potential to reshape the landscape of pay equity litigation, including whether and how those claims can be maintained as collective or class actions. The 2019 edition of the Developments in Pay Equity Litigation Report outlines these cases and trends.

All of the members of the Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2019.

Christine Hendrickson and Annette Tyman co-chair the Seyfarth’s Pay Equity Group. For 20 years, Seyfarth’s Pay Equity Group has lead the legal industry in fair pay analysis, thought leadership, and client advocacy.

 

By Minh N. Vu

Seyfarth Synopsis:  Domino’s Likely to File Petition for Certiorari from Ninth Circuit’s Ruling in Robles v. Domino’s.

As we reported, the Ninth Circuit held in January that a blind plaintiff could move forward with his ADA Title III lawsuit against Domino’s Pizza for having an allegedly inaccessible website and mobile app.  The court determined that allowing the claim to move forward was not a violation of Domino’s due process rights, even though the ADA and its regulations contain no definition of, or technical specifications for, “accessible” public accommodations websites.

We believe Domino’s will be petitioning the U.S. Supreme Court for certiorari because on March 6, 2019, it requested a sixty-day extension of time to file said petition.  The request was filed by a newly-engaged Supreme Court specialist which further confirms our conclusion that a petition will be filed.  Justice Kagan granted the request, and Domino’s Petition for Certiorari is due on June 14, 2019.

There is a lot at stake with this petition.  Congress and the DOJ have taken no action to stop the tsunami of lawsuits against thousands of businesses about their allegedly inaccessible websites.  A Supreme Court decision could put an end to the litigation frenzy and provide some relief for businesses.

Stay tuned for updates on this exciting development.

Edited by Kristina M. Launey

 

By Sara Eber Fowler, Rhandi Childress Anderson, and Erin Dougherty Foley

Seyfarth Synopsis: The Department of Labor issues an opinion letter clarifying that employers must promptly designate FMLA leave, regardless of the availability of paid leave.

What if an employee wanted to say “no thank you” to their FMLA rights, use their other available leave, thereby saving their FMLA time for later and get extra (protected) time off – can they do that?

That used to be an easy “no”– if an eligible employee gave notice of a need for leave for an FMLA-qualifying reason, employers were obligated to designate the time off as FMLA. But in 2014, the Ninth Circuit issued a surprising decision in Escriba v. Foster Poultry Farms, Inc., holding that employees can decline to take FMLA leave, even when their need for leave is for FMLA-qualified reasons. The Ninth Circuit departed from prevailing precedent and created a gray area for employers as to whether they could – or should – involuntarily place employees on FMLA leave when they decline FMLA rights. In the years since, no other Circuits have followed Escriba.

On March 14, 2019, the Department of Labor (“DOL”) issued an Opinion Letter directly rejecting the Escriba decision, reiterating the prevailing view that employers cannot delay designating leave as FMLA leave, where it otherwise qualifies, even if an employee asks.

The question presented to the DOL was whether an employer could allow employees to exhaust some or all available paid leave before designating leave as FMLA, even when the reason for leave is clearly FMLA-qualifying. In no uncertain terms, the DOL rejected this practice. Once an employee communicates a need to take leave for an FMLA-qualifying reason, neither the employee nor the employer may decline FMLA protection for that leave, 29 C.F.R. § 825.220(d). In other words, contrary to Escriba, employee preferences are irrelevant and employer compliance is mandatory. When an employer has enough information to determine whether a leave request is for an FMLA-qualifying reason, the employer must follow the FMLA regulations and designate the leave accordingly.

The DOL further reiterated that this does not prevent employers from permitting or requiring that employees substitute available paid leave to cover otherwise unpaid FMLA leave. However, FMLA runs concurrently with any paid leave, and employers cannot expand an employee’s 12-week (or 26-week) FMLA entitlement.

Takeaway for Employers     

For most employers around the country, the DOL’s opinion letter simply serves as a reminder of what has long been considered best practice in designating FMLA leave. For employers with operations in the Ninth Circuit, though Escriba has not been overruled, the opinion provides a solid foundation to designate qualifying leave as FMLA, regardless of employee preference. And of course, there is nothing preventing employers from having more generous leave policies (paid or unpaid), with time off beyond the FMLA’s 12-week/26-week allotment. They key is, such additional leave is not FMLA (or FMLA protected).

If you have any questions regarding this or any related topic please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.

By Liz Watson and Kristen Peters

Seyfarth Synopsis: It is important for companies to investigate internal sexual harassment complaints and take prompt, appropriate corrective action. This post provides a six-step roadmap of best practices for handling sexual harassment complaints.

  1.  Plan Ahead
  • Maintain compliant harassment policies, provide regular harassment training covering all required topics (Seyfarth can help), and communicate the procedure for reporting complaints.
  • Determine in advance who will oversee the process for handling complaints.
  • Have a crisis management team in place in advance (generally legal, human resources, IT, and communications or public relations).
  • Identify and train internal investigators so they know how to conduct an investigation.
  1.   Initial Steps After Receiving A Complaint
  • Determine whether there is a need to conduct a formal investigation and, if so, the appropriate scope of the investigation.
  • Consider whether to place the accused on paid administrative leave pending the investigation. Some factors to consider include whether the accused poses a potential safety risk and whether having the accused in the workplace may intimidate witnesses or otherwise impede the investigation.
  • Take appropriate interim steps to prevent harassment and retaliation. For example, it may be appropriate to separate the accused and the complainant, instruct the accused not to communicate with the complainant, or to place an upcoming performance review on hold pending the conclusion of the investigation.
  • Determine who will conduct the investigation. Choose the investigator carefully, as that person may need to testify in any legal proceeding.
    • Investigators must be free from actual or apparent bias or conflict of interest. For example, an investigator should not investigate the conduct of the investigator’s superiors or friends.
    • Determine whether to retain an outside investigator. Consider whether the investigator needs a particular expertise.
    • Evaluate whether to retain a lawyer to conduct the investigation and whether the investigation will be covered by attorney-client or attorney work product privileges. The company can decide later whether to waive a privilege and rely on the investigation as part of a litigation defense.
  • Preserve evidence that may be relevant to the investigation. The evidence may include emails, texts, and internal messages. Involve IT as necessary.
  • Develop a public relations strategy if there may be potential media coverage or publicity.
  1.   The Investigation Process
  • Conduct investigations promptly. If there was misconduct, it should be corrected as soon as possible.
  • Determine an investigation plan, but remain flexible. The number of witnesses interviewed and documents reviewed should be appropriate to the situation. Facilitate the investigator’s access to the relevant witnesses and the documents.
  • An investigation is a fact-finding mission. The investigator should approach the investigation with an open mind.
  • Consider the order in which witnesses are interviewed and what information to share with witnesses. Generally a best practice is to interview the complainant first and the accused last. Witnesses should be told that the company will maintain confidentiality consistent with the need to investigate.
  • Prepare notes contemporaneously or soon after the interviews. Document key quotes and any admissions made. Be thoughtful about your notes, as they may be discoverable if the matter results in litigation. Decide whether to have the witnesses submit or sign statements.
  1.   Reporting the Findings
  • Determine whether a written report is necessary for all or parts of the investigation and, if so, what level of detail is appropriate for the report.
  1.  Determine Who Will Decide and Take Appropriate Corrective Action
  • Generally the decision-makers should not be lawyers.
  • Corrective action may include, for example, discipline, coaching, further training, and other steps to prevent future harassment and retaliation.
  1.   Close Outs And Other Follow Up After The Investigation
  • Inform employees involved with the investigation that the investigation has concluded and that the company has taken appropriate action. The company may not be able to share more information due to privacy concerns.
  • Instruct employees to report any further concerns through the appropriate complaint channels.
  • Remind them that company prohibits retaliation. Instruct employees to report any retaliation promptly.

Workplace Solutions: While is there is no “right way” to conduct an investigation, all investigations should (1) start with an investigation plan that may include interviewing the material witnesses and reviewing key documents, (2) be conducted as promptly as reasonably possible, (3) be conducted by a trained, impartial investigator, (4) be documented appropriately, (5) be followed by appropriate corrective action and steps to prevent harassment and retaliation, and (6) appropriately inform employees when the investigation has closed.

Edited By: Coby Turner

By Jay Connolly & Aaron Belzer

As cannabis growers and retailers struggle with the complex and onerous regulatory scheme governing California’s emerging legal marijuana marketplace, they may be excused for overlooking the requirements of California Safe Drinking Water and Toxic Enforcement Act of 1986—more commonly known as Proposition 65.  Neither the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), nor its implementing regulations, reference or suggest that cannabis growers or retailers are subject to Proposition 65.  Yet, Proposition 65 plainly applies to cannabis and cannabis products, and ignorance of its requirements can prove costly to fledgling and established cannabis businesses alike.

Proposition 65 requires California to publish and update annually a list of chemicals known to the State to cause cancer, birth defects or other reproductive harm (the “Listed Chemicals”).  It further requires businesses to provide “clear and reasonable” warnings to California residents before exposing them to one or more of the over 900 Listed Chemicals above the established regulatory “safe harbor” levels.  Such exposures can be from consumer products, in workplaces or in the environment and therefore require different types of warnings.

Proposition 65 is enforced entirely through litigation; it vests the Attorney General with primary enforcement responsibility, but also allows any individual or organization “acting in the public interest” to sue a business for purported violations, and seek penalties of up to $2,500 per violation per day.  Because private enforcers can potentially recover their attorney fees and 25% of any penalties assessed, Proposition 65 has spawned a cottage industry for “bounty hunter” plaintiffs who pursue costly enforcement actions against unwary businesses that fail to warn of potential exposures to even trace amounts of a Listed Chemical.

Cannabis and cannabis products are not immune from these enforcement actions.  Since California added “marijuana smoke” as a Listed Chemical in 2009, cannabis and cannabis products have become notable targets for enforcement—a trend that has only increased since California passed Proposition 64 legalizing recreational marijuana use effective January 1, 2018.  Over the past four years, for example, private enforcers have issued over 800 Proposition 65 notices of violation to cannabis businesses alleging violations of Proposition 65’s warning requirements.  And while “marijuana smoke” is an obvious target for enforcement, other Listed Chemicals commonly found in both edible or smokable cannabis products, including “beta-Myrcene” and “isoprene” (common hydrocarbons found in cannabis plant oils), and “Myclobutanil,” and “Carbaryl” (pesticides and fungicides used to grow cannabis plants), can also be targets for enforcement.

To avoid becoming a target for enforcement, prospective and licensed cannabis businesses should add Proposition 65 to their legal and regulatory compliance checklist.  To that end, the Proposition 65 regulations clarify the relative warning responsibilities between product manufacturers, producers, packagers, importers, suppliers, distributors (“Upstream Entity(ies)”) and retail sellers of consumer products.  Specifically, the regulations require Upstream Entities subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials for retail sellers to display and maintain.

A retail seller, in turn, is independently responsible for providing a Proposition 65 warning only when: (1) it sells the product under its own (or an affiliate’s) brand or trademark; (2) it introduces or creates the Listed Chemical in the product itself; (3) it fails to display or obscures the product warning provided by an Upstream Entity; or (4) it has “actual knowledge” of the potential exposure and an Upstream Entity cannot be readily compelled to provide the warning (a potential “gotcha” situation).

The regulations also provide specific, detailed non-mandatory guidance for the content of Proposition 65 warnings for a wide variety of exposures, including consumer product exposures, occupational exposures, and environmental exposures.  The regulations further provide additional non-mandatory guidance for the method by which a business may provide the warning for various exposure types—whether resulting from the acquisition, purchase, storage, consumption or use of a consumer product, or from contact with an environmental source, such as ambient air.

Although businesses are not required to use the warning content or methods set forth in the regulations, doing so is the only way in which to ensure compliance with Proposition 65.  And while Proposition 65 may not be as complex as the MAUCRSA and its implementing regulations, Proposition 65 is sufficiently complex and nuanced that cannabis businesses should carefully review their requirements, determine their warning obligations, and develop and implement a reasonable and practical compliance plan.  Indeed, as many cannabis operators have already discovered, one ignores Proposition 65 at one’s own peril.

Jay W. Connolly is a partner in Seyfarth’s San Francisco office and Aaron Belzer is a partner in the firm’s Los Angeles office.  They regularly represent and advise clients in Proposition 65 matters and developments.  If you have any questions regarding this development or related issues please contact your Seyfarth Shaw LLP attorney, Jay Connolly at jconnolly@seyfarth.com or Aaron Belzer at abelzer@seyfarth.com

By Christopher Truxler & Nicole Baarts

Seyfarth Synopsis: Workplace violence is no laughing matter. Although California law arms employers with strict laws to prevent workplace violence, no one wants to find themselves petitioning a court for emergency injunctive relief. Instead, employers should foster healthy workplaces and monitor early warning signs in order to address threats of violence before it is too late.

“If I had a gun with two bullets and I was in a room with Hitler, Bin Laden, and Toby, I would shoot Toby twice.”

Popular culture is rife with amusing expressions of office tension that can provide healthy relief to real world frustration. But as comical as some might find the antics of The Office’s Michael Scott, no one wants to witness these sort of threats in person. Although California law arms employers with strict laws to prevent workplace violence, to best protect the workplace, employers should proactively manage the possibility of violence rather than waiting for a threat to appear.

California Civil Procedure Code section 527. 8 defines workplace violence as assault, battery, or stalking, and permits employers to obtain a restraining order against “any individual” who makes a credible threat of violence that can reasonably be construed to be carried out at the workplace. It also empowers employers to obtain a court order requiring those who threaten violence to temporarily turn their weapons over to the police or sell or store their weapons with a licensed gun dealer. And if a restrained person violates the court’s temporary order, the District Attorney may press criminal charges.

But let’s face it: no one wants to get to this point. Luckily, there are several things employers can do to manage workplace violence before everyday frustrations snowball into a credible threat of violence.

“At least we care enough about our employees that we are willing to fight for them.”

First, implement a companywide workplace violence policy. According to the Bureau of Labor Statistics, over 70 percent of U.S. workplaces lack a formal policy that addresses workplace violence. Without guidance from employers on how to address troublesome coworkers, employees may unwittingly escalate the threat of violence by responding on their own. The company should maintain an environment that minimizes isolation and resentment and that fosters open communication.

Second, be on the lookout for early warning signs and encourage employees to report threats or symptoms of violence. These signs may include a recent life- or mind-threatening illness, expressions of paranoia or persecution, and the deterioration of workplace friendships. Most of all, listen to your employees. If they bring a threat posted on social media to your attention, ask Human Resources to investigate. And be sure to address and document problematic behavior as it occurs.

Third, if a credible threat is made, immediately alert security or the police, collect all relevant evidence, and seek legal advice to assist with an appropriate response, which may include petitioning the court for a temporary restraining order. At the same time, ask Human Resources to investigate (if HR has not already done so) and consider retaining an outside firm to conduct an independent threat assessment. Typically, this process involves an independent investigation into the suspect as well as a workplace inspection to identify points of vulnerability, such as unmonitored entrances into the workplace. An independent threat assessment may reveal that the suspect does not pose a credible threat. On the other hand, the assessment may reveal that serving the suspect with court papers may increase the risk of violence. Conducting a thorough threat assessment should allow the employer to put in security measures by the time any temporary restraining order is served.

Fourth, remember that workplace violence restraining orders can also protect more than the workplace and extend to threatened employees’ homes, family members, cars, and even their children’s school.

Workplace Solutions: Protective orders provide an invaluable defense to credible threats of workplace violence; but employers should proactively manage the specter of workplace violence before it occurs rather than waiting for a legitimate threat to emerge. Many incidents of workplace violence are preventable (or at least controllable) through the implementation of company policies and by remaining aware of possible warning signs. If you have any questions about workplace violence, we recommend that you speak to your favorite Seyfarth attorney, as we are well experienced in this area. We hope you never need a restraining order. But if you do, we’ll guide you through what can be a nerve-wracking experience.

Edited By: Coby Turner

By Annette Tyman, Randel K. Johnson, and Michael L. Childers

Seyfarth Synopsis: The U.S. District Court for the District of Columbia vacates the Office of Management and Budget’s (OMB) prior order staying the implementation of the revised EEO-1 Report which required employers to report W-2 wage information and total hours worked.

On March 4, 2019, the U.S. District for the District of Columbia issued an opinion reinstating the EEOC’s collection of pay data as part of the EEO-1 Report filing. The revised EEO-1 form was an Obama-era change that would have required employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands.

The pay data collection requirement was originally slated to go into effect on March 31, 2018, but stalled after the Office of Management and Budget (OMB) stayed the implementation of the pay data collection portions of the revised EEO-1 Report. That decision prompted a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC.

In its decision, the Court concluded that OMB’s action staying the EEOC’s pay data collection tool was an “illegal” arbitrary and capricious decision that lacked a “reasoned explanation.” As a result, the Court vacated the stay and ordered that the previously approved revised EEO-1 Report that required the collection of pay data form shall be in effect. We anticipate that the Court’s decision will be appealed.

Seyfarth Shaw offered testimony on behalf of the U.S. Chamber of Commerce and submitted comments on the revised EEO-1 Report outlining the employer community’s significant concerns with the burden, benefit, and confidentiality of the proposed changes. In early 2017, the U.S. Chamber of Commerce submitted a request for a review of the initial burden estimate along with a supporting declaration and testimony regarding the burden estimates which helped prompt OMB’s decision to suspend the implementation of the pay data collection requirement.

Impact to Employers

The Court’s decision has significant implications for employers. As we have previously reported, the current EEO-1 Report filing deadline is on May 31st. That filing did not envision the collection of pay data.

We anticipate that the EEOC will issue a statement to employers regarding the stay with further direction regarding the implementation date of the pay data collection component of the EEO-1 Report in the very near future. It is highly unlikely that employers would be required to provide the required pay data during the May 31st reporting cycle.

We will continue to monitor the situation and will provide updates as they become available.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Organizational Strategy & Analytics or Labor & Employment Teams.

 

By Ronald Gart and Christa Dommers

Seyfarth Shaw LLP has released the results of its fourth annual Real Estate Market Sentiment Survey, which polled commercial real estate executives around the country from all sectors. Of interest to our readers, this year’s survey revealed that, despite the dramatic increase in the number of states legalizing marijuana, 85% of respondents are putting the brakes on investing in cannabis use real estate or leasing space to the cannabis industry. This is not surprising, given the current state of federal law, lack of credit availability from financial institutions, and lack of title insurance.

What about the other 15% who do plan on investing in CRE for marijuana use? Most (70%) do not plan to invest anytime soon, indicating an investment horizon of at least 2-5 years. Notably, however, 20% of those respondents planning to participate in the industry already have their hands in the pot business.

View the full survey results

 

By Kevin Green and Jesse Coleman

Seyfarth Synopsis:  A recent editorial authored by two female doctors in the Canadian Medical Association Journal proclaims that, “in the era of #MeToo, it is time for physicians to acknowledge that the medical profession is not immune to bullying, harassment and discrimination, and act to abolish these behaviours.”  #MeToo and the Medical Profession (Aug. 20, 2018).  While the #MeToo movement had unprecedented success increasing accountability for sexual misconduct among entertainment, political, and academic institutions, the healthcare industry did not receive the same attention. Recent findings demonstrate, however, that the #MeToo movement will soon leave its mark on health care as well.

Perception of Historic Tolerance of the Medical Profession

A 2018 report issued by the National Academies of Sciences, Engineering, and Medicine (NASEM) documents the problem of sexual harassment in the medical field in significant detail.  Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine.  Among other things, the NASEM report demonstrates that the academic environments in medicine exhibit characteristics that create high risk levels for the occurrence of sexual harassment.  The report finds that, by far, the greatest predictor of sexual harassment is the organizational climate across an institution (also referred to as the perceptions of organizational tolerance).  In short, women are more likely to be directly harassed and to witness the harassment of others in environments that are perceived as more tolerant or permissive of sexual harassment.

According to a recent AP investigation, the medical industry has traditionally been more forgiving of sexual harassment allegations within its own ranks. The AP found that “when doctors are disciplined, the punishment often consists of a short suspension paired with mandatory therapy that treats sexually abusive behavior as a symptom of an illness or an addiction” and that decades of complaints regarding the leniency of the physician disciplinary system for sexual misconduct toward patients or co-workers has produced little change in the practices of state medical boards.  AP Investigation: Doctors Keep Licenses Despite Sex Abuse (Apr. 14, 2018). The AP report details that the causes underlying these issues are complex and varied, including:

  • Failure of the medical community to take a stand against the issue;
  • Institutional bias on part of medical review boards to rehabilitate instead of revoke licensure;
  • Perceived tolerance for sexual harassment through precedent of lenient penalties for sexually abusive doctors which inhibits current disciplinary actions;
  • Interference from administrative law judges who reduce stricter punishment sought by medical boards against sexually abusive doctors (though medicine boards may seek to override administrative decisions they disagree with);
  • Hospital disinclination to report abusive doctors;
  • Rehabilitative physician health programs that are either ineffective in addressing sexual misbehavior or ignore it altogether; and
  • Patient and employee reluctance to challenge a medical professional or employers.

Regardless of the causes, the days of organizational tolerance of sexual harassment in the medical profession appear numbered as more and more individuals and institutions search for solutions to these historical challenges.

The #MeToo Movement is Here to Stay

Though perhaps not subject to the same media coverage initially afforded, the #MeToo movement remains an active force in the workplace. Title VII filings accounted for 56 percent of all filings with the Equal Employment Opportunity Commission (EEOC) in FY 2018. Perhaps the most striking trend of all is the substantial increase in sex-based discrimination filings, primarily the number of sexual harassment filings.  See EEOC Puts The Pedal To The Metal: FY 2018 Results.

#MeToo added fuel to this area of the EEOC’s agenda, with 74 percent of the EEOC’s Title VII filings this year targeting sex-based discrimination.  Compare this to FY 2017, where sex based discrimination accounted for 65 percent of Title VII filings. Of the FY 2018 sex discrimination filings, 41 filings included claims of sexual harassment. 11 of those filings were brought in the last three days of the fiscal year alone. The total number of sexual harassment filings was notably more than FY 2017, where sexual harassment claims accounted for 33 filings.

How Medical Employers Can Challenge Perceptions of Organizational Tolerance

The #MeToo movement presents myriad challenges that defy one-size-fits-all solutions. However, there are practices that can assist employers in their quest to create harassment free workplaces. As the research suggests, creating an anti-harassment culture begins with company leadership and then can permeate the entire organization. Beyond simple compliance, legal measures should be implemented with the goal of improving accountability and reducing the occurrence of sexual harassment. Some measures include:

  • Update company policies to clarify protections and conduct, emphasize non-retaliation provisions, and ensure multiple reporting channels and robust response protocols;
  • Conduct proper, substantive investigations that are not outcome determinative; and
  • Enhance and refresh sexual harassment training from the top down and reinforce through communication and modeling.

Identifying and implementing active measures to challenge the perception of tolerance for any harassing or abusive behavior within an organization is an essential step toward meeting the #MeToo movement’s call for a respectful work environment for all.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Latoya R. Laing and Erin Dougherty Foley

Seyfarth Synopsis: A number of changes have been made (and proposed amendments are being considered) to the Illinois Human Rights Act since the beginning of the year. Read on for further information.

Last June, we wrote about a series of amendments to the Illinois Human Rights Act. Since then, several of the amendments being considered back then have been signed into law. Last summer, Governor Bruce Rauner signed Public Acts 100-1066 and 100-0588, which extended the statute of limitations for filing, allows employees to opt-out of the IDHR investigative process, and reshaped the structure of the Illinois Human Rights Commission. One Bill, House Bill 4572, attempting to re-define the term “employer” under the act, didn’t make the cut.

Last year, the Illinois General Assembly proposed and passed numerous amendments to the Illinois Human Rights Act. Here’s what changed:

Employee Opt-Out

The first, and likely most notable change, is that employees who have filed a charge under the IHRA may now opt-out of the IDHR’s investigative process and proceed directly to Illinois state courts. The new amendment provides employees with the following timetable:

  • 10 Days: Within 10 days of receiving an employee’s filed charge, the IDHR must send an employee notice of their right to opt-out of the department’s investigation procedures and proceed to state court.
  • 60 Days: Within 60 days of receiving the notice, an employee must submit a written request to opt out of the investigative process.
  • 10 Days: The IDHR must respond to the employees request within 10 days, and notify the employer that the employee has opted out.
  • 90 Days: The employee must commence an action in circuit court within 90 days of the IDHR’s response. 775 ILCS 5/7A-102(B)

Statute of Limitations

Employees now have up to 300 days following an alleged discriminatory incident to file a claim under the IHRA. The Illinois statute now mirrors the Equal Employment Opportunity’s 300-day filing period. 775 ILCS 5/7A-102(A).

Notice Requirement

The IHRA requires employers to post a notice informing employees of their right to be free from unlawful discrimination and sexual harassment. The Act also requires that the same information be provided in employee handbooks.

The Illinois Human Rights Commission

The amendments also changed the structure of the Illinois Human Rights Commission and how it handles the existing backlog of claims. The changes include:

  • Decreasing the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
  • Each commissioner will be provided one staff attorney.
  • Created training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners was created to specifically address the backlog of charges and requests for review. The panel also has one staff attorney to assist them in addressing the backlog.

Charge Proceedings

In an effort to create more transparency in Commission and IDHR proceedings the statute provides new requirements for how claims are processed, litigated, decided, and ultimately published.

  • If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
  • The statute now requires that Commission decisions are based on neutral interpretation of the law and the facts.
  • The IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
  • The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
  • The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
  • Each Commission decision must be published within 180 days of the decision.

775 ILCS 5/7-109.1 – 5/8B-103

Employers Covered under the Act

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. In 2018, House Bill 4572 proposed an amendment to the IHRA to allow employers of any size to be liable under the IHRA. On May 18, 2018, the bill passed through both chambers of the Assembly passing the House 64-37 and the Senate 33-13. However, on August 13, 2018, Governor Rauner vetoed HB 4572.

More recently, a similar bill was proposed. On January 9, 2019 House Bill 252 was introduced to the Assembly. Like House Bill 4572, the bill seeks to change the covered employer standard from 15 employees to 1. On January 29, 2019 the bill was assigned to the Labor & Commerce Committee for further review. Employers should stay alert for additional developments.

Still have Questions?

Consider signing up for the March 14, 2019 “What’s Happening in Illinois” Breakfast Briefing that will be conducted at Seyfarth’s Chicago office.

In the meantime, for more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.