Posts Tagged ‘harassment law’

“You should be the hero of your story, not the villain. This is very doable.”

Lisa Bloom, whose Twitter bio describes her as “Trial lawyer fighting for victims of discrimination, harassment and abuse,” and who is also the daughter of well-known sexual-abuse attorney Gloria Allred,

was working behind the scenes with [Harvey] Weinstein — at a rate of $895 an hour — to quash the journalists’ investigation and thwart his accusers. In a confidential memo to Mr. Weinstein that Ms. Bloom wrote in December 2016, which is reproduced in “She Said,” she offered to help him damage the reputation of one of his accusers, Rose McGowan, and portrayed her background as a victims’s rights advocate as an asset.

“I feel equipped to help you against the Roses of the world, because I have represented so many of them,” Ms. Bloom wrote, before laying out a multistep playbook for how to intimidate accusers or paint them as liars. One of Ms. Bloom’s suggested tactics for undermining Ms. McGowan: “We can place an article re her becoming increasingly unglued, so that when someone Googles her this is what pops up and she’s discredited.”

[Alexandra Alter, New York Times; Yashar Ali (text of full memo, including “You should be the hero of the story” quote)]

Discrimination law roundup

  • Texas Gov. Greg Abbott signs into law two doubtfully constitutional bills applying to campuses an overbroad, subjective definition of sexual harassment, and requiring all college employees to report such conduct on pain of criminal penalty [Tyler Coward, FIRE]
  • New York adopts workplace harassment law that’s much more speech-hostile than federal, including a dropping of the requirement that prohibited expression be “severe or pervasive” [Hans Bader; Wiggin & Dana, NLR; Douglas Oldham, Barnes & Thornburg]
  • One to watch: SCOTUS will decide standard for proving s. 1981 discrimination claims, in case accusing Comcast of bias in not carrying programming of black network [ABA Journal]
  • A thumbs-down review: “The Kamala Harris Plan to Address the Gender Pay Gap,” Cato Daily Podcast with Ryan Bourne and Caleb Brown;
  • Even when there’s nothing unlawful about an eviction, city bars landlords from telling tenants they’re being evicted for discriminatory reasons. Laws banning truthful business speech about lawful conduct should trip First Amendment review [Ilya Shapiro on Cato amicus brief in Seeberger v. Davenport Civil Rights Commission]
  • Second Circuit withdraws decision that held landlords liable for tenant-on-tenant harassment under Fair Housing Act [Scott Greenfield, earlier]

Maryland toughens “cyber-bullying” law yet further

“We’re not interested in charging children or putting them in jail or fining them,” says a campaigner for Maryland’s “cyber-bullying” law, “Grace’s Law 2.0,” which is drafted to do exactly those things. “What we want to do is change the behavior so the internet is more kind,” says the same campaigner regarding the new law, which would encourage online users to turn each other in for potential 10-year prison terms over single instances of certain kinds of malicious, abusive speech, and is being billed as going farther than any other law in the country, as well as farther than the earlier Maryland law passed in 2013.

Bruce DePuyt at Maryland Matters reports that Senate Judiciary Chair Bobby Zirkin (D-Baltimore County):

said the 2013 law required that abusive comments be sent to the individual and be part of a pattern of conduct. With the rise of social media, that proved to be too high a hurdle, he said.

Under the new law, “a single significant act can land you in trouble,” he told reporters.

Due credit to the ACLU of Maryland, which called out this dangerous venture in speech regulation:

Toni Holness, the group’s public policy director, said in February that the bill fails to adequately define what constitutes a “true threat.”

Holness also was concerned about other words in the bill that had not been defined: encourage, provoke, sexual information, intimidating, tormenting.

“There’s way too much prosecutorial discretion in these terms that are not defined,” she said.

I criticized the bill in February and noted language from Zirkin suggesting that the Court of Appeals, as distinct from the legislature, would sort out its constitutionality. Before that, I criticized the 2015 law as itself going too far (more). DePuyt reports that Zirkin may approach U.S. Rep. Jamie Raskin (D-Md.) about introducing a similar bill on the federal level. Let’s hope Raskin says no to that bad idea. [cross-posted from Free State Notes; see also earlier]

Related: an Ohio student has been arrested and faces expulsion over a Twitter account on which he made vicious comments about female classmates; whatever view the law takes of the prospective expulsion of 18-year-old Mehros Nassersharifi by Perrysburg High School, his arrest, on charges of telecommunications harassment, may overstep the First Amendment [NBC24, Hans Bader, Eugene Volokh (reworded to reflect fuller accounts which make clear that the student’s offensive speech went further than simply “rating” of classmates)]

“For obvious reasons, few will talk openly about the issue.”

Stepped-up litigation and reputational risks from charges of sexual misbehavior are changing employer policies in predictable ways:

Privately, though, many of the men interviewed acknowledged they’re channeling Pence, saying how uneasy they are about being alone with female colleagues, particularly youthful or attractive ones, fearful of the rumor mill or of, as one put it, the potential liability.

A manager in infrastructure investing said he won’t meet with female employees in rooms without windows anymore; he also keeps his distance in elevators. A late-40-something in private equity said he has a new rule, established on the advice of his wife, an attorney: no business dinner with a woman 35 or younger.

“If men avoid working or traveling with women alone, or stop mentoring women for fear of being accused of sexual harassment,” he said, “those men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint.”

[Gillian Tan and Katia Porzecanski, Bloomberg quoting Stephen Zweig, an employment attorney with FordHarrison.] For an earlier round of these issues, see this 2015 post.

Employment discrimination law roundup

  • Employee with (per Costco) history of “serious misconduct and insubordination” wins $750K after being fired for speaking at too loud a volume, the result she said of deafness-related difficulty in modulating her voice [Jon Hyman]
  • “Now What? Disciplining an Employee with a Suspected Addiction or Substance Abuse Issue” [Dale Deitchler and Jeffrey Dilger, Littler]
  • ADA: “6th Circuit says full-time work is not an essential function of every full-time job” [Jon Hyman] “So, you want to change the essential functions of a particular job, do you? Let’s talk ADA.” [Eric B. Meyer]
  • “Our group member has a fragrance sensitivity – and we’re supposed to be hugged to check for any scents” [Alison Green, Ask a Manager via Hyman]
  • “Is the sexual harassment “groundswell” starting?” [Robin Shea, Constangy; state agency volume] “Bracing For The Deluge Of EEOC Lawsuits” [Gerald Maatman, Seyfarth Shaw; EEOC filings rise]
  • “Why Doesn’t Diversity Training Work?” [Frank Dobbin and Alexandra Kalev, Anthropology Now; related, Amy Alkon (counterproductive “privilege checking”)]
  • Arbitrator orders Oregon town of West Linn to pay $100,000+ to cop fired after incendiary, racially charged Facebook posts [Everton Bailey Jr., Oregonian]

Labor and employment roundup

Discrimination law roundup

  • Women-only co-working space in Washington, D.C. is packed with amenities. But is it legal? [Ally Schweitzer, WAMU]
  • Hurry up and cert: Ninth Circuit en banc rules that use of past salary history violates federal Equal Pay Act [Reuters/KFGO; Marcia McCormick, Workplace Prof]
  • Justice Ruth Ginsburg talks down idea of passing new laws in response to #MeToo harassment scandals: “We have the legal reforms — we have had them for a long time….The laws are there and the laws are in place; it takes people to step forward and use them.” [Jeffrey Rosen interview, The Atlantic]
  • “No Fingerprinting as a Religious Accommodation? Yes, Says Court” [Daniel Schwartz]
  • “Equal Pay Day Should Be in January” [Vanessa Brown Calder, Cato] “Mythbusting Paid Leave Statistics” [same] “Women who have their first child before 25 or after 35 eventually close the salary divide with their husbands,” but new moms between 25-35 don’t [Claire Cain Miller, New York Times] “When factors such as experience, industry and job level were taken into account, women earn 97.8 cents for every dollar earned by their male peers for doing the same work.” [Stephen Miller, SHRM] More: Tyler Cowen;
  • “A waiter was fired for being combative, aggressive and something of a bully. His defense? He’s not rude. He’s French and his former bosses are discriminating against his culture and heritage.” [Laura M. Holson, New York Times via Twitter]

February 28 roundup

Banking and finance roundup

  • D.C. Circuit’s en banc decision upholding constitutionality of CFPB disappointing but not surprising. On to SCOTUS [Ilya Shapiro, Aaron Nielson, Jonathan Adler]
  • Big thinking under way at the SEC could replace securities class action sector with free contract: “The SEC should authorize mandatory arbitration of shareholder class action lawsuits” [Bainbridge, Benjamin Bain/Bloomberg News (noting that broker dealers have long been free to use arbitration clauses)]
  • Milberg Weiss founder Melvyn Weiss dies at 82 [ABA Journal, our coverage over the years of Weiss and his firm, @PaulHorwitz (“Give generously, and to the right people, so that your NYT obit can be a glowing apologia despite a few inconvenient facts.”)]
  • Here come the shareholder derivative suits over sleazy-boss #MeToo scandals [Kevin LaCroix] “NERA: 2017 Securities Suits Filed at ‘Record Pace'” [same]
  • Rogoff rebuttals: “More Evidence of the High Collateral Damage of a War on Cash” [Lawrence White, Cato, earlier] “Money as coined liberty” [David R. Henderson]
  • Quotas/targets for percentages of women, disabled and indigenous persons on Canadian corporate boards? [Terence Corcoran/Financial Post, more]

Labor and employment roundup

  • California becomes fourth state to ban asking job applicants about salary history. Bad law. [Gerald Skoning, WSJ] Together with required disclosure of “pay range,” ban on salary history inquiries could hurt studios, talent biz [Philip Bonoli, Forbes]
  • Claim: age-targeted Facebook employment ads unlawful under age discrimination law, even if hiring firms are listing jobs and soliciting applicants through many other channels as well [Julia Angwin, Noam Scheiber, and Ariana Tobin, New York Times] More: Charles Sullivan, Workplace Prof (“It’s not at all clear that the practice is illegal under current federal law.”)
  • “‘Opt Out’ Provisions May Provide Path Forward for Class-Action Waivers in Employment Contracts” [Andrew Trask, Class Action Countereasures]
  • Payments to workers’ comp attorney: “Former NBA Player Pleads Guilty to Charity Fraud Scheme” [Phil Yacuboski, WCI360] Report: jihadist group in Colorado in 1990s funded acts of terror through workers’ comp fraud [Liz Carey, WCI360]
  • Will #MeToo scandal result in a leftward lurch in employment law? Some certainly hope so [Terri Gerstein, On Labor]
  • Weirdly influential “pay workers enough to buy back the product” fallacy, associated with Henry Ford, doesn’t work for aircraft carriers or matches or most other products [David Henderson, earlier here, etc.]