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.

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.

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. 

In California, employers are faced with an increasingly complex rulebook for what they may and may not ask about either a current or prospective employee’s criminal history. Effective July 1, 2017, employers may not consider any non-felony misdemeanor conviction related to marijuana possession that is more than two years old in any employment decision. This prohibition not only includes hiring and firing of an employee, but advancement or promotion opportunities as well.

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.

Recently, UPS settled a class action suit filed in 2009 by the Equal Employment Opportunity Commission ("EEOC") for $1,718,500.00.  The EEOC’s lawsuit claimed that UPS’ policy of only granting employees up to 12 months of medical leave regardless of the circumstances violated the Americans with Disabilities Act (“ADA”). According to the EEOC’s complaint, UPS’ adherence to its inflexible 12-month leave policy resulted in the company not providing reasonable accommodations to employees and automatically terminating their employment after the 12-month leave had expired.

The EEOC argued that this policy was unlawful because the interactive process that employers are required to engage in with employees requesting accommodation is supposed to be tailored to each individual case, and what is reasonable is determined on a case-by-case basis. Thus, a strict “cap” on leave meant that UPS was not engaging in a good faith interactive process to determine whether or not some amount of additional leave would have enabled employees to go back to work for the company with or without minor restrictions that could have been accommodated. 

In addition to the settlement payout, UPS has also agreed to a number of injunctive terms which control how it must handle accommodation issues moving forward. Specifically, by the terms of the settlement, UPS is prohibited from discriminating on the basis of disability against nonunion workers on medical leave, including those on disability who have asked for an accommodation. UPS also agreed that it may not retaliate against any employee who “has opposed any unlawful practice under the ADA, requested a reasonable accommodation, or filed a discrimination charge under the statute.”   While these terms simply identify conduct that would have been unlawful in any event, their inclusion makes it easier for the EEOC to pursue relief on behalf of affected employees in the future.

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