Judge Alex Kozinski, a long serving judge and former Chief Justice for the powerful U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”), has announced his retirement effective immediately over allegations he subjected at least 15 women to inappropriate sexual behavior dating back to the 1980s.

As we previously reported here and here, we are conducting a mini-series of posts that will explore and examine some of the most important and interesting aspects of sexual harassment in wake of the Harvey Weinstein scandal that has prompted a reevaluation of how harassment is handled in the workplace.

In our previous two posts, we discussed the issue of statute of limitations and the effect of non-disclosure agreements in relation to sexual harassment claims. Now, you may be asking, “how can employers effectively prevent a sexual harassment claim from occurring and what policies should an employer implement to ensure their employees are not subjected to sexual harassment in the workplace?” While employers cannot eliminate the possibility of employees occasionally acting inappropriately, there are reasonable steps an employer can take to prevent unlawful harassment, including having proper policies describing and prohibiting sexual harassment, notifying employees of their right to make complaints, and ensuring employees know that complaints will be promptly investigated and remedial action taken, and that complaining employees will not be subject to retaliation.

Throughout the past two months, since the explosive news of Harvey Weinstein’s indecent past, several prominent figures have been added to an extensive list of alleged high profile harassers—from NBC’s Matt Lauer to U.S. Sen. Al Franken. It may be difficult for employers to understand their responsibilities regarding sexual harassment in the workplace, but there is more urgency than ever. As mentioned in a previous post, it is extremely likely this trend will trickle down to employers all over the country, and the courts will see an uptick in sexual harassment claims. Employers need to be prepared and ensure they are minimizing the risk of a harassment claim and in the event a claim comes forward, the employer needs to be prepared to handle the complaint seriously and thoroughly. The importance of an employer’s obligations in rooting out, training, and preventing sexual harassment cannot be stressed enough.

Non-Disclosure Agreements: Perpetuating a Culture of Silence?

By: Jizell Lopez

As we previously reported here, we are conducting a mini-series of posts that will explore and examine some of the most important and interesting aspects of sexual harassment in wake of the Harvey Weinstein scandal that has not only dominated the news network and everyday conversation, but has also created a domino effect of sexual harassment and sexual abuse complaints against many prominent figures in the entertainment industry and in politics.

Hollywood is currently facing a controversy decades in the making involving a rising storm of allegations of sexual assault and harassment against some of the titans of the movie industry.  A deluge of complaints against uber-producer Harvey Weinstein quickly resulted in his ouster from the Weinstein Company, a company he founded and ran until he was removed by its Board of Directors. The numerous complaints have not only decimated his personal image, but also are threatening the company’s continued existence.  More recently, allegations of decades-old sexual abuse against actor Kevin Spacey resulted in Netflix halting production on the final season of its hit show House of Cards. 

Pursuant to the National Football League’s (“NFL”) collective bargaining agreement (“CBA”), the NFL commissioner has the authority to both issue discipline and hear the appeal or designate the arbitrator who will do so.  On August 11, 2017, after a yearlong investigation into allegations of domestic abuse, NFL Commissioner Roger Goodell suspended Dallas Cowboys Running Back Ezekiel Elliot for six games after finding that there was “credible evidence” that Elliot had violated the NFL’s personal conduct policy. The NFL Players Association (“NFLPA”) appealed the decision to a Goodell-appointed arbitrator who upheld the decision to suspend Elliot. After the NFL filed a motion in Federal court to confirm the arbitrator’s decision, the NFLPA has been pulling out all the stops to delay and potentially overturn Elliot’s suspension.

Over the weekend, the Governor Brown added to the growing list of new employment laws to go into effect, including AB 1008, which is commonly referred to as the “ban the box bill.” AB 1008 prohibits employers with five or more employees from asking about a job applicant’s criminal history until a conditional offer of employment has been made. AB 1008 also makes it unlawful to consider or provide information about arrests not resulting in a conviction, referral to or participation in a diversion program, or convictions that have been sealed, dismissed, expunged, or eradicated by statute when conducting a criminal background check in connection with an application for employment.

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