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The following article discusses session one in the IR Global Virtual Series on '#MeToo – Is it time up for discrimination in the Workplace?'
Nevada – Laura
Thalacker (LT) In the US we have Title VII of the 1964 Civil Rights Act,
which governs statutory claims that come up with regard to discrimination
against women based on sex and sexual harassment. In Nevada, we also have
requirements under Nevada law in NRS chapter 613 that govern discrimination
based on sex and equal pay.
The laws cover harassment committed by a co-worker, as well
as harassment committed by a supervisor. To be actionable, a hostile work
environment harassment must be ‘severe’ or ‘pervasive’ and the conduct at issue
must be unwelcome. For co-workers, courts will look at whether the employer
knew or should have known about the harassment and failed to take prompt remedial
action. For supervisors, the employer is vicariously liable for the
supervisor’s conduct if there is a tangible employment action (for example,
discipline, demotion or termination) that results from harassment.
If there’s hostile work environment harassment engaged in by
a supervisor with no tangible employment action, then the employer can raise an
affirmative defence to liability. This defence requires a showing that the
employer exercised reasonable care to prevent and promptly correct any sexually
harassing behaviour, and that the employee unreasonably failed to take
advantage of the employer’s preventative or corrective measures.
The Nevada legislature is only in session every two years,
and does not go back into session until February 2019. This #MeToo movement
really only started in the Fall or 2017, so we have not seen legislative action
yet in Nevada, but are anticipating attempts to pass additional equal pay laws,
and laws addressing confidentiality of settlements.
The other big thing that's happening in Nevada right now in
the wake of the #MeToo movement is the accusation of sexual misconduct in the
gaming industry against high profile individuals.
In response, the Nevada Gaming Control Board, for the first
time, is proposing specific requirements for licensees regarding sexual
harassment policies, investigations, and procedures for reporting and remedying
violations. This proposal has not yet been adopted and discussions surrounding
it are ongoing.
California – Rebecca
Torrey (RT) California has a legislative scheme similar to Nevada, governed
by both Federal law and state law.
There have been laws on the books for quite a long-time
protecting California employees, which offer more protection and broader
remedies than Federal law. California discrimination and harassment laws are
contained in the California Fair Employment and Housing Act (FEHA). It differs
from Title VII, the Federal law that Laura mentioned, in a number of ways. For
example, it provides employees with a longer statute of limitations. Currently
under state law, individuals have a year to file an administrative claim for
harassment, discrimination or retaliation and then they have one more year
after the state labour agency issues a right to sue notice to allow the filing
of a civil lawsuit.
There also are additional protected classifications of
individuals working in California, about three times as many as there are under
Federal law. There is no cap or limit on punitive damages in California and the
unlimited potential of compensation for emotional distress, which is a
subjective, open-ended type of compensatory damages available in court.
FEHA also applies to smaller employers of at least five
employees, while Title VII only applies to employers with at least 15 employees.
Since 2004, California has required employers to provide
annual or bi-annual anti-harassment training of all supervisors working for
companies with 50 or more employees. As of 2016, California also regulates what
components must be included in written harassment policies and what topics must
be covered in the harassment training for supervisors. This training
requirement has been picked up by four other jurisdictions outside California
and is currently under consideration by Congress along with other states and
municipalities.
This California regulatory framework, however, pre-dated the
#MeToo movement. The primary new potential legislation (at the moment under
consideration by Governor Jerry Brown and not yet enacted), prohibits
employers’ imposition of confidential settlements of gender discrimination
claims and mandatory arbitration of claims. Californian Senator Kamala Harris,
is a co-sponsor of a similar Federal Bill called The Empower Act, which will
attempt to do the same thing on a national level.
Nevada – LT Does
that specifically only address sexual harassment or is it all types of
discrimination claims or harassment claims, such as racial or religious
harassment? It's so interesting that they're treating sexual harassment cases
differently than other types of discrimination claims.
California – RT
It addresses settlements that relate to sexual misconduct and would include
both sexual assault and sexual harassment.
The strategic focus in California on these types of bills
has been to tackle one aspect of the problem and then expand on it in order to
broaden the coverage. We saw that last year with the Fair Pay Act, an
aggressive statute seeking to eliminate pay disparity by placing the burden to
justify pay differences on the employer. The ultimate burden of proving
discrimination usually rests on the employee. The Fair Pay Act initially
covered only gender pay disparities and then was amended the following year to include
pay disparities based on race and ethnicity. It is an effective tactic of legislators
in garnering support for a limited protection and then seeking to expand it.
Nevada – LT There
was one direct legislative response to #MeToo at the Federal level that we
should mention, within the Tax Cuts and Jobs Act, passed in the US at the end
of 2017.
There is a provision now under tax law that if you settle a
sexual harassment or sexual abuse claim with a confidentiality provision in it,
then you cannot write off or deduct as a business expense the settlement or the
attorney’s fees related to settling that claim.
California – RT
Yes, the 2017 tax law change eliminated federal tax deductions for employers
settling a claim of sexual misconduct. The Protection Act, currently pending in
Congress, conversely seeks to provide a deduction for settlement amounts
received by employees, eliminating their obligation to pay federal taxes on
that amount.
Sweden – Magnus
Berterud (MB) In Sweden, when it comes to the laws and regulations
regulating sexual harassment in the workplace, everything comes down to the
Discrimination Act which protects individuals from discrimination in the
workplace.
In Sweden sexual harassment is considered as a form of
discrimination and that actually comes from the EU laws which are the same in
all EU countries.
It means that an employer may not sexually harass an
employee, someone applying for a job, someone applying for or carrying out a
traineeship, or a person who is performing work on a temporary basis. A person
who has the right to make decisions on behalf of the employer in this kind of
matters shall be equated with the employer in this respect.
That means that if a manager at a company sexually harasses
a colleague, it may lead to that employer becoming liable to pay compensation
for the manager’s actions.
The thing that has caused the most publicity and actions
among employers though, is the obligation to investigate and take measures if
you become aware that an employee is or has been subject to harassment. This
has actually been quite a big deal in Sweden where employers have used law
firms to investigate possible harassment.
If an employer concludes that there is a case of sexual
harassment, then they are obliged to take proper measures, which could range
from warnings to dismissals in serious cases. The Discrimination Act also
prohibits reprisals when it comes to sexual harassment claims, so an employee
who raises an issue of sexual harassment should not be subject to any
disadvantage.
An employer who acts in breach of these rules may be liable
to pay compensation to the employee or the victim, but I would assume that
compared to the US, for example, the levels of compensation are moderate here
in Sweden.
It will depend on how serious the harassment was, but the
compensation normally ends up in the range of SEK 40,000 and SEK 60,000, which
in Euros would be between EUR 4,000 and EUR 6,000. As a result, employees do
not file claims to get money, but for other reasons.
If they succeed in such a claim, then the employer will have
to pay the employee’s legal costs. However, when it comes to these kinds of
cases the employee does normally not appoint an attorney.
They are either represented by their trade union, or by the
Equality Ombudsman which is a government agency that supervises the application
of the Discrimination Act.
Although it has been discussed for some years, somewhat of a
response to the #MeToo movement came into force on July 1st this year, and
relates to the Swedish penal code. There have been changes to the rules when it
comes to sexual assault and that kind of crime and now there's a requirement
for explicit consent, in word or action, in order to have sex in Sweden.
These changes have been very much debated and criticised by
lawyers and the Swedish Bar Association, because it’s largely a politically
motivated legislation and it is questionable if it will lead to more
convictions.
France – Lionel
Paraire (LP) Sexual discrimination and harassment have been prohibited by
French law for decades now even if the very last definition of sexual
harassment comes from a recent act dated August 6th 2012.
This act provided exactly the same definition of sexual
harassment in both criminal and labour codes, which was not the case before. It
is now both a criminal offence and a misconduct for sanction in the workplace.
French law has also prohibited discrimination based on
gender orientation since the early 1990s.
Sexual harassment under the criminal legislation maybe
sanctioned by two years of imprisonment or a fine of EUR 2000 euros.
There is also an old EU directive dating from 23rd September
2002 that deals with both discrimination and sexual harassment. All the
European countries have the same directive.
With regard to the #MeToo campaign, we have not seen any
particular change linked to this campaign, even though the government has taken
this into consideration when strengthening reform.
The French parliament is currently debating an order to
reduce the gaps in equality between men and women, particularly with regard to
remuneration. It is a very old topic and I think the female MPs have tried to
use #MeToo as leverage to have this reform voted in.
On August 2018, a law reinforcing the fight against sexual
and sexist violence has also been published. It completes the provisions
relating to offenses of sexual harassment and creates a new offense (sexual
affront) punished with the fine set for fourth class offences and defined as
“the fact, to direct to a person any remark or behavior, with a sexual or sexist
connotation, which either undermines their dignity due to its degrading or
humiliating nature, or creates against them an intimidating, hostile or
offending situation”.
Interestingly, the fallout of the Weinstein case has led to
the French Ministry of Justice recording a 30 per cent increase in sexual
harassment complaints, but there is no data yet about the outcome of those
complaints.
Mexico – Edmundo
Escobar (EE) In Mexico we have a range of different types of laws and
regulations. The constitution states the existence of discrimination, including
for sexual reasons, while we have Federal law designed to prevent and eliminate
discrimination.
There is a general law that recognises a woman’s right to a
life free from violence and then we have some safety and security law
regulations for the workplace.
Finally, we have the criminal code. Harassment as a criminal
offence is dealt with by the states, not federal law, and sexual harassment is
not recognised by 11 states out of 32 in Mexico. It is pretty interesting that
Federal law does recognise harassment, but that 11 states don’t consider it to
be a criminal offence.
We work together with criminal lawyers when we have to deal
with these issues, since Mexican Federal labour law gives grounds for dismissal
for any employee that participates in mistreatment and abuse or is involved in
violence, threats or personal harassment against the employer, the employer’s
family, co-workers or workers from outside the company.
if the employer doesn’t do anything or tolerates the
harassment then the affected party can terminate the contract and sue the
employer, so that both labour, criminal and administrative claims can start.
The company will be fined for violation of the labour law if
it is determined that there was sexual harassment. Severance payment will be
given to the employee and administrative law preventing discrimination will
apply. Damages may also be sought through the criminal courts.
England – Shilpen
Savani (SS) Discrimination law in the English workplace is governed by the
Equality Act 2010. The Act is concerned with nine protected characteristics,
which are age, disability, gender reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief, sex and sexual orientation.
There are five types of discrimination under the Act,
namely: direct discrimination, indirect discrimination, harassment,
victimisation and instructing, causing, inducing and helping discrimination. As
such it is a very broad-based and progressive statute that is already quite
well equipped for the new challenges presented by the #MeToo and #TimesUp
movements.
Yet there is no doubt that #MeToo and #Times Up have
heightened public interest in this area of the law and there is always room for
improvement. The most compelling calls for change have recently come from the
Equality and Human Rights Commission (EHRC), which published a report earlier
in 2018 seeking a number of reforms.
These include calls for an extension of the existing
three-month limitation period for harassment to six months, the introduction of
a mandatory duty on employers to take reasonable steps to protect workers from
harassment and the mandatory publication of company policy. Also of importance
is the EHRC’s recommendation that non-disclosure agreements and confidentiality
clauses seeking to prevent disclosures of harassment should be made void. None
of these things have passed into law yet but they have added to the current
debate that surrounds the issue of discrimination and harassment in the
workplace.
Contributors
Magnus Berterud (MB) Delphi – Sweden www.irglobal.com/advisor/magnus-berterud
Laura Thalacker (LB) Hartwell Thalacker, LTD. – U.S – Nevada
www.irglobal.com/advisor/laura-thalacker
Edmundo Escobar (EE) Escobar y Gorostieta, SC Lawyers –
Mexico www.irglobal.com/advisor/edmundo-escobar
Rebecca L. Torrey (RT) Elkins Kalt Weintraub Reuben and
Gartside. – U.S – California www.irglobal.com/advisor/rebecca-torrey
Lionel Paraire (LP) Galion – France www.irglobal.com/advisor/lionel-paraire
Shilpen Savani (SS) gunnercooke llp – England www.irglobal.com/advisor/shilpen-savani