How 2018 Was a Landmark Year for Workers’ Rights

It’s been quite a year for workers' rights. From changes to the handling of sexual harassment by private companies to new state laws on equal pay, employment law has been a hot topic this year.

Not all of the news has been good. Several important decisions from the Supreme Court and the Trump Administration have eroded employee rights and tilted the landscape even more in favor of employers.

As an employment lawyer who represents workers who’ve been wronged, I’ve watched these changes with an especially close eye. Here’s a look at the good, the bad and the ugly in 2018 from my perspective.

The Good

The #MeToo movement began in late 2017 with the disclosure of serious allegations of sexual harassment and abuse by Hollywood mogul Harvey Weinstein. But the reverberations of that and other stories continued throughout 2018, especially as private companies began to fear that their handling of the issue would hurt them with workers and consumers.

One positive effect was that a number of high-profile tech companies — Uber, Lyft, Google, Facebook, Airbnb, eBay and Square — agreed to stop using forced arbitration to resolve sexual harassment allegations. 

These changes aren’t likely to affect the average worker in 2019. This is because most of the companies who have implemented these policy changes are in the tech industry, where there is a high demand for skilled workers, giving them more bargaining power than the typical worker. But these companies will help set a new standard that other employers may follow, smoothing the path for legislative efforts to put these policies into law.

A number of states and local governments passed laws or had laws go into effect which aim to protect workers from workplace discrimination or sexual harassment:

• The federal government: The Tax Cuts and Jobs Act made significant changes to the Internal Revenue Code, including removal of the payment of money to settle a claim of sexual harassment or sexual abuse as a tax-deductible business expense if the settlement is subject to a nondisclosure agreement. This specific provision went into effect at the start of 2018.
• New York: The state’s 2019 budget contained new laws that stated employee contracts may not contain forced arbitration clauses for sexual harassment claims, sexual harassment settlements may not contain nondisclosure provisions (unless requested by the victim) and all employers in the state must distribute information on sexual harassment prevention policies and engage in annual sexual harassment prevention training.
• New Jersey: The Diane B. Allen Equal Pay Act provided extensive protections for equal pay, including making it illegal to pay members of a protected class less than a member of a non-protected class. This law also barred employers from retaliating against employees who discuss their compensation with each other. Finally, the law stated that employers cannot force employees to agree to a shortened statute of limitations period or waive any rights provided by New Jersey’s relevant anti-discrimination law.
• New Jersey: The New Jersey Earned Sick Leave Law allowed employees to accrue paid sick leave at a rate of one hour for every 30 hours worked, up to a maximum of 40 hours in a year. Employees can use this paid leave for their own health issues or the health needs of a family member as well as a child’s school-related event.  
• New York City: The Stop Sexual Harassment in NYC Act did a variety of things to help victims of sexual harassment. It extended the statute of limitations, applied the New York City Human Rights Law to all employers and required all city employers with 15 or more employees to conduct mandatory sexual harassment prevention training.
• Connecticut: Connecticut passed a pay equity law that bars employers from asking job applicants for information regarding their prior salary.
• Vermont: H.707 prohibited employers from requiring workers to sign away their right to report sexual harassment in a pre-employment contract. Under the law, all managers and supervisors must protect non-employees (such as interns, volunteers and independent contractors) from sexual harassment and sexual harassment settlements cannot bar employees from working with the same employer in the future. Finally, the law established a website where individuals can file sexual harassment complaints.
• Massachusetts: The Act to Establish Pay Equity was signed into law back in 2016, but didn’t go into effect until this year. This new law affects all employers and most notably, it bans pay discrepancies on the basis of gender for comparable work. It also allows employees to discuss their compensation with each other and prohibits employers from asking a job applicant about his or her salary history.
• California: The Stand Together Against Non-Disclosure (STAND) Act bans employers from requiring nondisclosure agreements in sexual harassment settlements, but leaves victims the option of having one if they wish. 
• California: California also passed SB 1300, which is considered the “Mother of all Me Too Bills” because it made sweeping changes in how sexual harassment claims are to be litigated in California. Some of these changes include making it harder for an employer to recover court costs and fees from the losing plaintiff, prohibiting employers from having employees sign a non-disparagement clause that is designed to stop them from disclosing unlawful acts in the workplace (even in exchange for compensation), stopping employers from having employees waive certain employee protections provided by California law (even in exchange for compensation), expanding the vicarious liability of employers for harassing behavior of third parties and providing clarification that makes it easier for a plaintiff to prove they were the victim of sexual harassment.

On the whole, these laws are not perfect, but go a long way to protecting workers in 2019. 

First, they make it harder for companies to hide allegations of sexual harassment.

Second, they address the gender pay gap by preventing employers from forcing employees to divulge their compensation history or by barring discrepancy in pay based on gender for comparable work. This first point is particularly important because having access to a job applicant’s salary history allows for employers to justify making a lower salary offer, especially among women, who tend to have a history of getting paid less for the same work. It also helps older workers in that they don’t have to worry about their prior pay preventing them from being eliminated from consideration for a position that might pay less than what they used to make.

Third, it will be easier, especially in California, for victims of sexual harassment to prevail in court. And lastly, more employees will now have the right to paid time off to care for a loved one.

In addition to the legislative progress, there were a few important court victories as well.

• Rizo v. Yovino: The Ninth Circuit Court of Appeals concluded that even if an employer’s reason for paying a woman less than a man was because she made less in previous jobs (and not because she was a woman), it was still a violation of the Equal Pay Act of 1963.
• Minarsky v. Susquehanna County: The court allowed the plaintiff to sidestep a well-established defense from sexual harassment vicarious liability (often used by employers) when the victim does not formally report the unwanted behavior. The court acknowledged that not reporting the sexual harassment for fear of retaliation was a reasonable reason for not reporting it in light of the #MeToo movement. Therefore, a failure to report did not automatically bar a victim of sexual harassment from suing her employer.
• Ravina v. Columbia University: A jury awarded a former Columbia University researcher $1.25 million for retaliation the plaintiff endured after she accused a coworker of sexual harassment. It’s important to note that the plaintiff won on her retaliation claim but lost on her underlying discrimination claim.
• Mount Lemon Fire District v. Guido: The Supreme Court concluded that federal law prohibiting age discrimination applies to state and local governments, no matter how small they might be.
• Middlebrooks v. Teva: A jury in the Eastern District of Pennsylvania awarded more than $6 million to an employee who suffered from workplace retaliation. The plaintiff was an American executive who alleges he suffered from discrimination from his Israeli manager on the basis of age and national origin and that when he complained about the discrimination that manager retaliated against him. Five million of the $6 million award was for punitive damages.            

The most notable of these cases is probably the Minarsky case because it shows the influence of the #MeToo movement: An influence so significant that it allows the court to accept a legal argument it might not have otherwise entertained had the case been tried just a few years ago. This doesn’t mean all courts will follow this reasoning, but it’s certainly a good sign for employees who are the victim of workplace harassment.

The Bad

Unfortunately, 2018 wasn’t completely beneficial for workers. Several important Supreme Court cases and actions by the White House eroded employee rights and legal protections.

• Epic Systems Corp. v. Lewis: According to this Supreme Court decision, employers may force employees to use individual arbitration to resolve employment disputes, rather than the more advantageous collective arbitration.
• Janus v. AFSCME: The Supreme Court ruled that unions in the public sector can’t require employees to pay union fees after they opt out of union membership. 
• Changing the Definition of Sex: An internal memo from the Department of Health and Human Services revealed that the White House wants to define sex as “a biological, immutable condition determined by genitalia at birth.”

Each of these events has both significant real world and symbolic effects. The Supreme Court’s decision in Epic doesn’t directly apply to employers who choose to use arbitration as a sole means of resolving disputes over sexual harassment, but it certainly helps justify an employer’s decision to do so. The reason why the Epic decision is, well … epic, is because the Supreme Court has taken a stand that essentially says an employer can enforce whatever it wants on the employee as long as the employee signs a contract. This is a problem because employers and job applicants are rarely on equal footing when negotiating the terms of a new job. Most of the time, there is no negotiation and it’s a take-it-or-leave-it proposition for the employee. Once again, the Supreme Court has signaled that when it comes to employees’ rights, it’s not going to be very generous.

The Janus case doesn’t appear to directly relate to discrimination at work, but it does, because it weakens a union’s ability to protect its members by advocating on their behalf for grievances, such as sexual harassment or other forms of discrimination.

The White House’s desire to define “sex” a particular way is very unsettling. This is because it represents an attempt to undermine any current or future legal protections against gender or sex discrimination even as it ignores the complex nature of how sex and gender are defined and interact. Without getting too complex, “sex” relates to an individual’s biological characteristics while “gender” refers to a societal construct that outlines masculine and feminine traits.

For instance, wearing a dress doesn’t mean an individual is of the female sex, but it’s typically associated with the female gender. So, by adopting the White House’s definition of sex, it makes it easier for employers to legally discriminate on the basis of an individual’s perceive femininity or masculinity (or lack thereof) because the employer can argue this isn’t a form of sex discrimination. 

The Ugly

There were several arguably “ugly” events that could have an adverse effect on victims of discrimination and harassment in the workplace in 2018. But one of the most high-profile and symbolically significant is the Brett Kavanaugh Senate Judiciary hearings. During these hearings, the entire country got to hear testimony from Kavanaugh as well as his most prominent accuser, Christine Blasey Ford.

In the wake of the days of testimony, there were serious questions as to whether Kavanaugh may have tried to sexually assault Ford as a teenager. Despite almost universal agreement as to the credibility of Ford’s testimony, Kavanaugh was still confirmed by the Senate and became a Supreme Court Justice. 

Once he was sworn in as a Justice, dozens of allegations of ethical misconduct against him were also dropped and will not be investigated. The complaints (mostly concerning false statements) made against Kavanaugh were brought pursuant to the Judicial Conduct and Disability Act. However, only federal judges not in the Supreme Court are subject to that law. Therefore, there fact that Kavanaugh now sits on the Supreme Court means those investigations will automatically cease.

What made this whole testimony and subsequent confirmation most troubling was the appearance that many politicians were willing to ignore a credible sexual harassment allegation so that they could achieve a political goal. Perhaps Kavanaugh is completely innocent of Ford’s allegations. But the fact that there were so many other well-qualified, equally conservative and less controversial individuals who could have received the nomination to become the next Supreme Court Justice, yet the Senate decided to continue with Kavanaugh’s nomination, is very disheartening and troubling. All of this shows that when there’s enough money or power at stake, far too many people are willing to take steps that effectively amount to ignoring victims of sexual misconduct. 

Luckily, not all of the events in 2018 are this ugly, but it just goes to show why discrimination and sexual harassment are such pervasive problems that aren’t going away any time soon.

Tom Spiggle is author of the book “You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace.” He is founder of the Spiggle Law Firm, which has offices in Arlington, Va., Washington, D.C., and Bethesda, Md., where he focuses on workplace law helping protect the rights of clients facing pregnancy and caregiver discrimination, sexual harassment and wrongful termination in the workplace. To learn more, visit: https://www.spigglelaw.com/contact.