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  3. Written Testimony of Elizabeth C. Tippett Associate Professor, University of Oregon School of Law

Written Testimony of Elizabeth C. Tippett Associate Professor, University of Oregon School of Law

Thank you Chair Lipnic, Commissioner Feldblum, and members of the Select Task Force for the opportunity to testify.  I would also like to commend you for your 2016 Report on Harassment in the Workplace, which painted a comprehensive and unflinching look at the challenges we face in combatting harassment in the workplace.  I have cited the report numerous times in my research.  The report was also cited heavily by journalists during the height of the MeToo crisis and it provided an important source of context in their reporting. 

In my testimony, I will analyze a number of legal questions raised in the wake of the MeToo movement, including a number of proposals for law reform.   Where legal scholars have addressed the same or similar issues in the past, I attempt to summarize scholarly commentary.   I also draw upon my own research and prior experience as an employment lawyer to anticipate how some of these measures might affect employment practices.  

The topics I will cover broadly fall into two categories.  The first category consists of measures intended to increase access to justice for workers affected by harassment, including measures to limit the enforcement of arbitration agreements, state laws that impose individual liability for harassment, and expanding harassment law to provide protections for independent contractors.  The second category consists of measures intended to alter employment practices, in particular, contracts containing non-disclosure provisions and harassment training mandates. 

Arbitration Agreements.

Private arbitration agreements drew scrutiny during the MeToo movement, primarily as a result of  advocacy by former Fox News host Gretchen Carlson.[2]  In 2016, and again in October 2017, Gretchen Carlson wrote an editorial in the New York Times describing her experiences suing former Fox News Chairman Rogers Ailes for sexual harassment.[3] Carlson argued that "reforming arbitration laws is key to stopping harassment" because arbitration favors employers, and protects them through a "veil of secrecy."[4]

Carlson initially advocated for the Arbitration Fairness Act of 2017, which would prohibit pre-dispute arbitration provisions in any employment or consumer dispute.[5]   However, Carlson later lent her support to a much narrower bill, the Ending Forced Arbitration of Sexual Harassment Act.[6]  This bill limits arbitration agreements only for discrimination and harassment claims on the basis of sex.[7]  Microsoft publicly backed the bill[8] and created an exception in its own arbitration agreements for sexual harassment claims. [9]  Uber and Lyft also revised their arbitration agreements accordingly.[10]

Arbitration agreements are broadly enforceable under the Federal Arbitration Act ("FAA").[11]  About half of non-unionized employers in the private sector require employees to sign arbitration agreements.[12]  These agreements provide that employees cannot bring their claims in court and instead must proceed in private arbitration.  The agreements can also contain class and collective action waivers, which prohibit employees from bringing aggregate claims in court or in arbitration.[13] 

Commentators disagree about whether private arbitration works to the disadvantage of employees suing on an individual basis.  While some scholars have documented disparities between outcomes for employees in arbitration versus litigation,[14] others assert that the disparities reflect differences in the selection of cases that end up in court versus arbitration.[15]  Scholars have also observed low volumes of arbitration filings, suggesting that employees for whatever reason are not making use of arbitral remedies available to them.[16]  This may in part be due to the procedural tradeoffs associated with arbitration.  While arbitration is faster than litigation,[17] it also  removes the possibility of a jury trial.[18] Arbitration is also more final, since the FAA limits the bases available for appeal.[19]

Private arbitration provides employers with some protection from public scrutiny.[20]  Although arbitration is a private proceeding, it is not necessarily secret.  An employee litigating a case in arbitration would be free to discuss her case publicly, absent a contractual non-disclosure obligation. [21]    Unlike litigation, arbitration claims do not produce public records - the pleadings are filed with third party arbitration providers like the American Arbitration Association or JAMS.  Whether those documents are available publicly depend upon the policies of the arbitration provider, as well as the terms of the arbitration agreement itself.[22]  The American Arbitration Association makes employment arbitration decisions available through LexisNexis, however, it redacts the names and identifying information of the parties involved and requests permission from the parties in advance.[23]

Scholars have been sharply critical of Supreme Court jurisprudence permitting class action waivers.[24]  Jean Sternlight argued that the availability of class action waivers will tend to nudge employers toward broader adoption of arbitration agreements.[25]  Other commentators argue that such waiverswill erode compliance with legal rules typically enforced through class actions because companies no longer have the threat of an expensive class action suit.[26]

         Nevertheless, I would not expect the Arbitration Fairness Act or the Ending Forced Arbitration Act to produce a high volume of class action lawsuits involving harassment and discrimination.[27]  Harassment claims tend not to be very amenable to large class actions because they are hard to scale.[28]  By contrast, sex discrimination class actions alleging disparities in pay or promotion can be potentially lucrative because they can be aggregated to include, for example, all women in certain positions.  In the early 2000s, plaintiffs' lawyers successfully settled and litigated large scale promotion and pay cases for millions of dollars.[29]  However, these cases were quite rare.[30]  Moreover, a 2011 Supreme Court decision, Dukes v. Wal-Mart, made it considerably more difficult for plaintiffs to certify large class actions challenging subjective employment practices.[31]   In sum, while the proposed legislation would make it possible for these class actions to return, they would likely return at a smaller scale.

The Ending Forced Arbitration Act ("EFAA") offers some disadvantages compared to the Arbitration Fairness Act ("AFA").  Under the EFAA, I would expect employers to continue to make broad use of arbitration agreements, but include a carve-out for sex-based harassment and discrimination claims.[32]  Where employees assert multiple claims against an employer, they may be forced to proceed in multiple forums - for example, litigating a sex-based harassment claim, while arbitrating a related retaliation claim. [33]

The EFAA also privileges sex-based harassment claims over other prevalent forms of harassment.  As set forth in the EEOC's 2016 Report, only 45% of harassment claims allege harassment on the basis of sex.[34]  The other 55% allege harassment on the basis of race, disability, age, national origin or religion.[35]  Social science research also suggests that these other forms of harassment are quite common.[36]  To the extent that plaintiff's attorneys prefer triable claims over arbitrable ones,[37] the Ending Forced Arbitration Act may also lead such attorneys to preferentially represent sex-based claims over equally meritorious claims alleging other types of harassment.

B.    Protections for Independent Contractors.

The MeToo movement also revealed coverage gaps under current civil rights law.  While many stories revealed through MeToo involved overt non-compliance with harassment law, in other cases misconduct was abetted by coverage gaps.  Title VII only covers employers with 15 or more employees. [38]  Most states provide for broader coverage, [39] and half of states protect those working for employers with 5 or fewer employees. [40] 

Independent contractors represent a broad category of workers unprotected by harassment law.[41]  As of 2017, the Bureau of Labor Statistic estimated that 7% of all workers were independent contractors.[42]  Some of the most prominent workers affected by the biggest MeToo scandals - such as actors,[43] models,[44] and journalists[45] - may have been independent contractors.  Gig workers have also been broadly classified as independent contractors,[46] and are similarly vulnerable.[47] As journalist Nathan Heller observed, "They are accountable but not accounted for.  They can fall victim to the whims, iniquities, and weird ideas of whoever happens to be paying for their work."[48]

Independent contractors have few legal options for redress if they experience harassment. If they can prove that they were misclassified as contractors and meet the legal requirements for employee status, then they can avail themselves of federal or state antiharassment laws.[49]  Otherwise, they would have had no recourse beyond common law tort claims, like assault, battery, or intentional infliction of emotional distress.[50] 

Independent contractors exist both inside and outside of an employer's compliance structures. Title VII jurisprudence has long recognized that employees can sue their employer for harassment committed by independent contractors, and indeed even customers and suppliers.[51]   Employers will be liable under negligence principles if they fail to address harassment by these third parties once they know or should have known about the harassment.[52]  In other words, existing law already requires employers to constrain the behavior of contractors - over whom they may have limited control - to protect employees over whom they have substantial control.

However, the converse is not true.  If an employee harasses a contractor, the contractor cannot bring a harassment claim against the employer, even if the employer knew or should have known about the conduct and failed to address it.  The employer avoids liability in this instance, even though the employer arguably is in a better position to redress and mitigate the harm.

Employment law commentators have devoted considerable attention to the challenge extending protections to workers in the gig economy, which may be broadly instructive for thinking about protecting contractors from harassment.[53] A number of scholars have advocated changing the applicable tests for employment status in a way that would encompass gig workers.[54]  Another approach, advocated by Orly Lobel, broadly characterized as "harm reduction" would consist of extending protections to workers regardless of their status as employees or independent contractors.[55]  For example, Seattle experimented with a local ordinance that confers collective bargaining rights on for-hire drivers, which would include Uber and Lyft drivers classified as independent contractors.[56]  The Affordable Care Act also has a harm reduction component, because it provides a mechanism for workers to obtain health insurance regardless of their employment status.[57]

States and municipalities might want to consider expanding coverage of harassment laws to provide some protection for independent contractors.  For example, New York City extends its antidiscrimination and antiharassment protections to independent contractors provided they are "natural persons," "carry out work in furtherance of an employer's business enterprise," and "are not themselves employers."[58]  This definition offers the benefit of covering individuals serving as independent contractors, while excluding independent businesses expected to police their own workforce.

Another option might be to offer partial protections for independent contractors, which are proportional to the employer's capacity to intervene.[59]  For example, one might imagine allowing independent contractors to sue for harassment committed by employees, under the same negligence principles applicable when employees sue over harassment committed by contractors.  By contrast, employers likely have far less control over harassment of contractors by other third parties, like customers and suppliers.  In those scenarios, one might imagine providing more limited rights to contractors.  For example, states could confer certain procedural rights to the contractor, such as the right to use the complaint mechanism provided to employees, as well as a duty on the part of the employer to provide similar investigation and internal remedy procedures as those available to employees.  Such a procedural right might also be accompanied by disclosure-related duties on the employer's part, such as the duty to provide contractors with information about its complaint process.[60]  Lawmakers may also want to consider protecting contractors from contract termination or non-renewal in retaliation for a harassment complaint.  An alternative harm reduction approach might be to require that employers institute industry-specific measures to protect both employees and contractors - either as a matter of course, or once the employer has been informed of a safety-related risk.[61]

Individual employees are not liable for harassment under Title VII of the Civil Rights Act.  Multiple circuit courts have held that Title VII only covers "employers."[62]  Although Title VII refers to "agents" of those employers, courts have interpreted that reference to mean only that employers can be held vicariously liable for the acts of their agents, not that the employees themselves are individually liable.[63]

The absence of individual liability under federal law means that victims may periodically be deprived of a remedy where the employee experienced severe or pervasive harassment.[64]  This remedial gap arises from the Faragher/Ellerth defense, which provides employers with an affirmative defense where (i) the employer took reasonable measures to prevent or address the harassment and (ii) the employee failed to make use of the employer's complaint mechanism.[65]  However, as Sherwyn, Heise & Eigen found in an empirical study, courts have a tendency to credit employers with the affirmative defense where the employee made use of a complaint mechanism but delayed in doing so.[66]  In other cases, courts disregarded the second prong of the defense entirely, and applied the defense based solely on the employer's timely response to the complaint.[67] In circumstances where the employer is not deemed liable for the harasser's conduct, and no individual claim is available against the harasser, the victim has no federal remedy.

Some state laws fill the gap by imposing individual liability under their civil rights laws. The California statute explicitly provides for individual liability.[68]  Other states have interpreted their state statutes to provide for individual liability. [69]  A few states also provide for  "aiding and abetting" liability, through which employees have successfully sued other employees for harassment.[70] 

When states do not permit individual liability for harassment, victims can sometimes bring tort claims against their harasser.  If the harassment involved physical conduct, they might assert an assault or battery claim.[71]  Otherwise, they might assert intentional infliction of emotional distress or negligent infliction of emotional distress claims.[72]  While tort claims offer potentially lucrative compensatory and punitive damages,[73] they bring challenges as well.  First, they might be preempted by the state civil rights laws.[74]  Second, they might be precluded by the state workers' compensation regime.[75]  Third, the facts supporting a harassment claim may not fit well within the contours of a tort claim.[76]  For example, to prove an intentional infliction of emotional distress claim, the plaintiff must generally show that the conduct at issue was so extreme or outrageous as to exceed all bounds of decency.[77]  Conduct that might meet the legal standard for harassment may not meet this more stringent tort threshold.[78]

Individual liability can be somewhat of a blunt instrument.  Aiding and abetting liability opens the possibility of naming individual managers in lawsuits for their response to harassment, even if they did not themselves engage in misconduct.  Individual liability can also produce complex disputes around indemnification.  For example, California provides for strong statutory indemnification rights, through which employees must be repaid for "expenditures or losses incurred by the employee" in the "discharge of his or her duties."[79]  Although the right to indemnification would not protect a harasser that loses at trial, the indemnification statute can be a useful bargaining chip for harassers to wield against the employer in settlement negotiations.[80]

States considering imposing individual liability may want to first examine whether existing state laws appropriately apportion liability to the employer.  State systems for individual liability, whether under civil rights law or tort law, can then be calibrated to address any remaining remedial gaps, particularly for cases involving severe acts of misconduct.  States may also want to reexamine indemnification rules that might force the employer to pay twice for an individual's misdeeds - first, to the victim for the employer's own inaction, and then separately to the perpetrator to settle an indemnification claim.

II.              Altering Employer Practices

 A.              Non-Disclosure Agreements

The MeToo movement revealed the ways in which non-disclosure provisions in contracts could have the effect of obscuring harassment.  Harvey Weinstein's various contracts served as the case in point.  Employees working for his company signed contracts providing they would not harm the company's "business reputation" or "any employee's personal reputation."[81]  Weinstein also entered into various settlement agreements with accusers that restricted their ability to speak out about his misconduct.[82] One contract apparently provided for the destruction of evidence along with a signed statement by the victim that the conduct did not occur. [83] Another contract apparently required one of Weinstein's victims to say positive things about Weinstein if ever contacted by the press.[84]  Yet another agreement seemingly required the complainant to list the names of anyone to whom she disclosed the misconduct, and then obtain confidentiality agreements from those individuals.[85]

            Before the Weinstein revelations, non-disclosure provisions were viewed as a relatively routine part of the litigation and settlement process.  Courts largely enforced them on the assumption that they promote settlement, party autonomy and finality.[86]  For example, in Hasbrouck v. BankAmerica Housing Services, the court refused to order disclosure of a confidential harassment settlement.  The court reasoned, "while protecting the confidentiality of settlement agreements encourages settlement, which is in the public interest, permitting disclosure would discourage settlements, contrary to the public interest[.]"[87]

            Commentators have long debated the public policy implications of settlement in a wide variety of legal contexts.[88]  Perhaps the strongest defense of confidentiality in settlement comes from Carrie Menkel Meadow, who argued that disputes belong to the parties involved.[89]  Within this frame, the justice system functions at its best when it effectuates the parties' preferences, which might include a preference for confidentiality.[90]  Scott Moss approached the question from a law and economics framework, and concluded that the availability of confidentiality provisions likely facilitated settlement.[91]  Where employers place a high value on secrecy, they might be willing to pay a premium for a confidentiality provision, thus bridging a gap between parties with divergent estimates of the value of their claims.[92]

            Employees also periodically favor provisions in settlement agreements that restrict an employer's ability to make disclosures and have used those provisions to their advantage.[93]  Three of former Fox News host Bill O'Reilly's accusers sued him for violating non-disclosure and non-disparagement provisions in their settlement agreements.[94]  Even before the MeToo movement, employees sometimes brought similar breach of contract suits where the employer disparaged the merits of their lawsuit post-settlement.[95]

            The counter argument, as illustrated by Weinstein's practices, is that secrecy can impose public costs where it obscures and abets misconduct.  In economic terms, confidentiality agreements can represent an "externality" - a social cost imposed on third parties.[96] Commentator Minna Kotkin took an even stronger position, arguing that confidentiality provisions in settlement agreements are not truly optional for employees.[97]  Employers "insist on them" as a condition of settlement.[98]

            Several states, including California, New York, and Pennsylvania, are now considering or have enacted legislation that limits the enforceability of non-disclosure agreements in the employment context.[99] 

California is considering several bills that relate to limits on employee speech.  The first, Senate Bill 820, affects settlement agreements for sex harassment and discrimination lawsuits.  Under this bill, once a lawsuit has been filed, parties cannot include provisions in their settlement agreements that "preven[t] the disclosure of factual information relating to" claims of harassment or discrimination on the basis of sex.[100]  The bill includes an exception for secrecy provisions requested by the plaintiff.[101]   The second bill, Senate Bill 1300, prohibits employers from requiring employees to sign a nondisparagement agreement that would "deny the employee the right to disclose information about unlawful acts in the workplace, including but not limited to, sexual harassment."[102]  Senate Bill 1300 is targeted at agreements entered into as "a condition of employment" rather than settlement agreements.[103]  A third, Assembly Bill 3080, covers any contract that "prohibit[s]" an employee or contractor "from disclosing…an instance of sexual harassment" or "otherwise opposing any unlawful practice."[104]

Pennsylvania's proposed legislation renders unenforceable any agreement that "impairs or attempts to impair the ability of any person to report a claim of sexual misconduct"; provisions that suppress information "relevant to an investigation" of sexual misconduct; and provisions that prohibit disclosure of the accused person's name.[105]  New York enacted a law that restricts settlements that "would prevent the disclosure of the underlying facts" of a sexual harassment claim, unless it is the "complainant's preference."[106] New York is also considering a bill that encompasses essentially any contract limiting the disclosure of claims arising in the employment context - "discrimination, non-payment of wages or benefits, retaliation, harassment or violation of public policy in employment."[107] 

I expect that the proposed legislation will substantially influence employer contracting and settlement practices in a number of respects:

1.     Carve-outs in standard confidentiality agreements and social media policies.


Employers typically require employees to sign confidentiality information and invention assignment agreements at the inception of their employment.[108] These agreements are intended to protect the company's intellectual property and business secrets.  Employers are likely to include additional carve-out provisions clarifying that the agreement does not cover certain types of disclosures, as enumerated in the statute at issue.  Employers are also likely to incorporate similar carve-outs in their social media policies.[109]


Such carve-outs would in some respects serve a "belt and suspenders" function, in that employees arguably already have the right to disclose harassment or discrimination under the "opposition" clause of Title VII of the Civil Rights Act, [110] and potentially the National Labor Relations Act.[111] Nevertheless, carve-outs could serve a meaningful educational function by informing employees of their right to make such disclosures.

2.     Fewer and narrower speech restrictions for victims in settlement agreements.

Settlement agreements can contain a number of possible provisions that limit the victim's speech.[112]  Non-disclosure provisions can restrict the victim from disclosing the facts underlying the claim, as well as the discussions leading up to the settlement and the amount of the settlement itself.  These provisions will be substantially curtailed in harassment settlements under proposed legislation, subject to specific exceptions for the amount of the settlement.[113]

Non-disparagement provisions will also likely be affected by the legislation.  Broad non-disparagement provisions preclude victims from making any statement that would tend to harm the reputation of the employer or its employees. Such provisions would be unenforceable under the proposed legislation because the disclosure of the underlying facts of the case might damage the employer or harasser's reputation.  Narrow non-disparagement provisions - which prohibit only defamation, libel or slander - might still be viable provided they clarify that the employee remains free to disclose the facts of the case. 

3.      Employers unable to promise secrecy to accused employees in settlement agreements.

One of the more significant effects of the proposed legislation would be in limiting the employer's ability to make promises of secrecy to the accused.  While much of the media attention on settlements focused on settlements with victims, employers also enter into settlement agreements with employees accused of harassment.[114]

Employees accused of misconduct sometimes request reciprocal non-disparagement clauses, where neither the employee nor the company can make disparaging statements about the other.  Under the Pennsylvania and New York legislation, employers would no longer be able to make such promises because they could have the effect of concealing misconduct or suppressing its disclosure.[115]  The same would likely be true for post-filing agreements under California's Senate Bill 820.

      Even absent legal reform, employers should consider revisiting past practices of absolute secrecy with respect to disciplinary decisions following a harassment investigation.  Employers can be reluctant to inform even the victim of harassment of the discipline imposed,presumably because they are fearful of being sued by the accused.  This reticence could lead the victim to assume that no meaningful discipline took place, especially if the harasser is permitted to return to their prior role.  Over time, complete secrecy regarding disciplinary practices can erode trust in the system and deter employees from using the complaint process.[116]

  While accused employees periodically allege defamation[117] or "false light" privacy claims[118] based on an employer's statements, the law affords employers substantial latitude to make disclosures that protect their business interests and the work environment.  First, the accused employee only has a cognizable claim when the statement at issue is false.[119]  Where an employer has engaged in a careful investigation, it can be expected to have a strong fact-based defense for its statements.  Second, even if a statement is false, the law extends a qualified privilege to employers unless the statement was made with malice.[120]  Investigations likewise provide strong protection for employers when it comes to establishing the qualified privilege.[121]  Moreover, discipline-related disclosures to employees affected by the misconduct are considered squarely within the employer's qualified privileged. [122]

B.       Mandatory Harassment Training

Following the MeToo movement, additional states are considering legislation that mandates harassment training, including New York, Delaware, and Pennsylvania.[123]  California and Connecticut already require harassment training, but are considering expanding their training mandate.[124]  The existing California mandate, in place since 2007, requires employers with 50 or more employees to provide two hours of training to supervisors every two years. [125]  Even absent a legislative mandate, a large proportion of employers conduct harassment training voluntarily.[126]

Training mandates require employers to make substantial investments in an intervention that is not necessarily proven to be effective in the ways that lawmakers hope.  As the EEOC documented so well in its 2016 Report, robust evidence on the effectiveness of these trainings is lacking.[127]  There is some evidence that harassment training increases participants' knowledge of the types of behavior that qualify as harassment.[128]  But it may not favorably influence participants' attitudes or behaviors.[129]  Some studies also documented adverse effects of harassment training - such as increased victim blaming, or cynical attitudes toward the entire endeavor.[130]  As the EEOC documented, there is evidence that trainings devoted to increasing bystander interventions may increase bystander behaviors, but those studies occurred in military environments and on college campuses.[131]  We do not yet know whether they are effective in corporate contexts. 

In my own research, I reviewed training materials for several dozen harassment training programs in a number of formats.[132]  The trainings tended to conform to a genre, consisting of an authority figure presenting large quantities of legal information interspersed with examples of prohibited conduct.[133]  They tended to overemphasize sexual harassment and sexual misconduct, at the expense of gender based harassment, and harassment on the basis of other protected categories.[134]  They did so to an extent that was out of step with EEOC statistics about the frequency with which claims are filed.[135]  The trainings also tended to overlook the relationship between harassment and discrimination, and thus failed to remind participants that inclusion of underrepresented groups is equally as important as the prohibition on harassment when those groups are included.[136]  I also observed relatively little innovation in the industry, beyond expanding the existing genre to new platforms such as online interactive trainings and YouTube.

I expect the proposed and enacted mandatory training legislation to exacerbate, rather than address these tendencies.  First, two hours is a long time to expect employees to sit through a training.  Employees may also resent being subjected to the same content every two years to comply with the statutory requirements.  Second, the enumeration of required content in the statute will likely discourage innovation in this sector, perpetuate the existing genre, and in some cases exacerbate the observed overemphasis on sexual harassment.[137]  Where a statute specifies the content trainers must cover, trainers will be focused on hitting each of these points with adequate frequency and depth to satisfy the statute, rather than identifying new or compelling ways to influence employees' attitudes and behavior.

Legislation regarding training and other prevention measures should be designed to encourage the kind of innovation, diversity of approaches, and rigorous measurement that is currently lacking in the market today.  Legislation should not necessarily privilege formal training for a set period of time over other interventions that could prove to be effective at addressing harassment.[138]  For example, an employer might identify the situational factors at their workplace that create harassment related risks, and work to address those risk factors so that harassment is less likely to develop.[139]  Other forms of informal or group-based engagement may also be fruitful - one study on a civility-based intervention involved employees regularly meeting with their workgroups to improve interpersonal interactions.[140] As Kalev, Dobbin, and Kelly's analysis  showed, internal task forces and committees have been especially effective at promoting diversity,[141] and could prove similarly effective in the harassment context.

Likewise, training that may ultimately prove to be most effective might not strictly comply with the content requirements of the previously discussed statutes.  Future research may ultimately support alternate training approaches, like bystander training, ethics-based training, interpersonal skills training, or other training tailored to the knowledge, attitudes, or workplace context.  However, employers will be reluctant to invest in innovative approaches to training - and trainers will be reluctant to develop them - if state law only credits employers for standard-issue content.

            Rather than specifying certain content, states could require employers to adopt effective or evidence-based approaches to address harassment on an annual basis, and disclose them to their employees, along with their efforts to measure their effectiveness.  Alternatively, states could allow employers to opt out of the training mandate if they make an investment in an alternate intervention or training program that either has strong evidentiary support, or that they commit to evaluate empirically.



The MeToo movement revealed a number of gaps in our existing laws, as well as the limitations of past employer practices for addressing harassment in the workplace.  However, it would be a mistake for employers and state legislators to limit their response exclusively to sexual harassment.  In doing so, they risk laying a foundation for the next crisis, whether it involves other forms of harassment, or discrimination and retaliation.  Instead, employers and lawmakers would do well to think broadly about what it means to provide equal opportunity in the workplace, and to consider new approaches that work towards that larger goal.

This testimony draws heavily on my forthcoming law review article, entitled The Legal Implications of the MeToo Movement, to be published in Volume 103, Issue 1 of the Minnesota Law Review, available at  For the sake of readability, I do not include citations or quotations each time I include analysis from that article.  I have also included string cites and parentheticals copied directly from the article without the use of quotations.  I also include citations from a forthcoming co-authored article with Bridget Schaaff, How Concepcion and Italian Colors Affected Terms of Service Contracts in the Gig Economy, 70 Rutgers L. Rev. 101 (2018), and the forthcoming article, Harassment Trainings: A Content Analysis, 39 Berkeley J. Lab & Emp. L. -- (2018).

I am grateful to Michael Moffitt, Fred Alvarez, Amy Todd-Gher, and Stephen Tauesch for their insights; to Catharine Roner Reiter and Amber Lesher for research assistance; and to the editors of the Minnesota Law Review for permission to use material from the forthcoming article.

See Gretchen Carlson, How to Encourage More Women to Report Sexual Harassment, N.Y. Times (Oct. 10, 2017),;  Arbitration Fairness Act of 2017, H.R. 1374,115th Cong. (2017); Arbitration Fairness Act of 2017, S. 537, 115th Cong.(2017);  See also Arbitration Fairness Act of 2018, 115 S. 2591 (2018).

[3] Carlson, supra note 2.                                                                                       

[4] Id.

[5] Carlson, supra note 2; Arbitration Fairness Act of 2017, H.R. 1374,115th Cong. (2017).

[6] Jessica Guynn, 'Enough is enough': Gretchen Carlson says bill ending arbitration would break silence in sexual harassment cases, USA Today (Dec. 6, 2017),

[7] Ending Forced Arbitration of Sexual Harassment Act of 2017, S. 2203, 115th Cong. (2017).

[8] Harper Neidig, Microsoft backs bill to end forced arbitration for sexual harassment claims, The Hill (Dec. 19, 2017)

[9] Tiffany Hsu, 'She's Not Laughing': In Davos, Taking on Sexual Harassment, N.Y. Times (Jan. 23, 2018),

[10] Aaron Mak, Uber and Lyft Will No Longer Keep Sexual Harassment and Assault Victims Out of Court, Slate (May 15, 2018),

[11] See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Epic Systems Corp. v. Lewis, -- S.Ct. ---, Case No. 15-285 (2018).

[12] Alexander J. S. Colvin, The growing use of mandatory arbitration, Economic Policy Institute (Sept. 27, 2017)

[13] Colvin estimates that about 40% of workers bound to arbitration agreements are subject to a class action waiver.  Id.

[14] See e.g. Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards, 29 McGeorge L. Rev. 223, 223-24 (1998) (asserting that employers benefit from a "repeat player" effect by appearing in arbitration repeatedly over time); Alexander Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8J. Empirical Legal Studies 1, 1 (2011) (finding a repeat player effect); See Alexander Colvin & Mark D. Gough, Individual Employment Rights Arbitration in the United States: Actors and Outcomes, 68 Indus. & Lab. Rel. Rev. 1019, 1028 (2015); Cynthia Estlund, The Black Hole of Mandatory Arbitration, 96 N.C. L. Rev. 679, 678-688(2018) (summarizing empirical literature).

[15] David Sherwyn, Samuel Estreicher & Michael Heise, Assessing the Case for Employment Arbitration: A New Path for Empirical Research, 57 Stan. L. Rev. 1557,1565-66 (2005); Stephen J. Ware, The Effects of Gilmer: Empirical and Other Approaches to the Study of Employment Arbitration, 16 Ohio St. J. on Disp. Resol. 735, 751-53 (2001). See also Elizabeth Hill, Due Process at Low Cost: An Empirical Study of Employment Arbitration Under the Auspices of the American Arbitration Association, 18 Ohio St. J. on Disp. Resol. 777, 814-15 (2003).

[16] See Colvin & Gough, supra note 15 at 1027; Estlund, supra note 15 at 689-692 (estimating the number of "missing" arbitration claims).  See also Judith Resnik, Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights, 124 Yale L. J. 2806, 2900 (2015) (concluding that "almost no individual consumers use arbitration").

[17] Alexander J.S. Colvin & Kelly Pike, Saturns and Rickshaws Revisited: What Kind of Employment Arbitration System has Developed?, 29 Ohio St. J. on Disp. Resol. 59, 79 (2014).  Cf. Michael D. Young & Brian Lehman, Arbitrators Less Prone to Grant Dispositive Motions Than Courts, N.Y. L.J. (Jun. 26, 2009),

[18] Estlund, supra note 14 at 687.

[19] Federal Arbitration Act, 9 U.S.C. § 16 (2012).

[20] Estlund, supra note 14 at 679.

[21] Estlund, supra note 14 at 680 ("The relative secrecy of arbitration is a product partly of the confidentiality norms that prevail within this private contractual forum and the community of arbitrators, and partly of confidentiality agreements that often accompany pre-dispute arbitration agreements and that bind the parties.").  It is unclear whether such secrecy-related provisions could be curtailed through proposed state legislation, discussed in greater detail, infra. The Supreme Court has taken an expansive view of preemption under the Federal Arbitration Act ("FAA"), and has preempted state efforts that interfere with a party's ability to enforce an arbitration agreement as written.  See AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740, 1748 (2011) ("nothing in [Section 2 of the FAA] suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA's objective"); Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995) ("the FAA ensures that their agreement will be enforced according to its terms even if a rule of state law would otherwise exclude such claims from arbitration").  See also Epic Systems Corp. v. Lewis, 137 S.Ct. 809 (2017). Although the proposed legislation  does not target arbitration specifically, the risk remains that the Supreme Court will declare any restrictions that limit parties' ability to contract for secrecy in the arbitration process contrary to the FAA.  Should that occur, arbitration will become even more attractive to employers in jurisdictions that place limits on the secrecy of harassment or discrimination claims.

[22] Id. at 680-681.

[23] See Source Information- AAA Employment Awards, LexisNexis, (last visited Jun. 3, 2018).

[24] See e.g. Imre Stephen Szalai, More Than Class Action Killers: The Impact of Concepcionand American Express on Employment Arbitration, 35 Berkeley J. Emp. & Lab. L. 31, 32-34 (2014); Thomas J. Stipanowich, The Third Arbitration Trilogy: Stolt-Nielsen, Rent-A-Center, Concepcion and the Future of American Arbitration, 22 Am. Rev. Int'l Arb. 323, 325-27 (2011); Myriam Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion, 79 U. Chi. L. Rev. 623, 631-39 (2012); Maureen A. Weston, The Death of Class Arbitration After Concepcion?, 60 U. Kan. L. Rev. 767, 772 (2012); Frank Blechschmidt, All Alone in Arbitration: AT&T Mobility v. Concepcion and the Substantive Impact of Class Action Waivers, 160 U. Pa. L. Rev. 541, 544-45 (2012); Jean R. Sternlight, Tsunami: AT&T Mobility LLC v. Concepcion Impedes Access to Justice, 90 Or. L. Rev. 703, 704-05 (2012); Hiro N. Aragaki, AT&T Mobility v. Concepcion and the Antidiscrimination Theory of FAA Preemption, 4 Y.B. on Arb. & Mediation 39, 41-42 (2012); Resnik, supra note 16 at 2804. See also, Imre Szalai, Outsourcing Justice: The Rise of Modern Arbitration Laws in America 9-10, 188 (2013).

[25] Sternlight, supra note 24 at 718.

[26] Weston, supra note 24;  Jean R. Sternlight & Elizabeth J. Jensen, Using Arbitration to Eliminate Consumer Class Actions: Efficient Business Practice or Unconscionable Abuse?, 67 L. & Contemp. Probs. 75, 88-89 (2004);  J. Maria Glover, Beyond Unconscionability: Class Action Waivers and Mandatory Arbitration Agreements, 59 Vand. L. Rev. 1735, 1747 (2006); Bryon Allyn Rice, Enforceable or Not?: Class Action Waivers in Mandatory Arbitration Clauses and the Need for a Judicial Standard, 45 Hous. L. Rev. 215, 228 (2008).  The risk is especially acute for claims that are not worth much money at the individual level, but can produce large harms in the aggregate.  Resnik, supra note 16 at 2893.  For example, many wage and hour claims are not economically viable on an individual basis, because the contingency fee associated with a recovery of a few hundred or thousand dollars would not be worth a plaintiff's attorney's time.  Elizabeth Tippett & Bridget Schaaff, How Concepcion and Italian Colors Affected Terms of Service Contracts in the Gig Economy, 70 Rutgers L. Rev. 101, 148-149 (2018). 

[27] Although the Act is silent on that question of class actions, once harassment and discrimination claims fall outside of the FAA's purview, it is then exclusively subject to state law regarding waivers and unconscionability.  Class action waivers may be unconscionable outside the context of an arbitration agreement, although there is surprisingly little jurisprudence on this point.  Copello v. Boehringer Ingelheim Pharmaceuticals Inc., 812 F.Supp.2d 886,

896 (N.D.Ill. 2011) (class action waiver in separation agreement not unconscionable when given in exchange for $15,000 of severance);Kinkel v. Cingular Wireless LLC, 223 Ill.2d 1, 1857 N.E.2d 250, 275 (Ill. 2006) ("enforceability of a class action waiver, whether or not the contract provides for mandatory arbitration, must be determined on a case-by-case basis, considering the totality of the circumstances"); Muhammad v. Cnty. Bank of Rehoboth Beach, Del., 189 N.J. 1, 22 (N.J. 2006)("As a matter of generally applicable state contract law, it was unconscionable for defendants to deprive Muhammad of the mechanism of a class-wide action, whether in arbitration or in court litigation."); Skirchak v. Dynamics Research Corp., 508 F.3d 49 (1st Cir. 2007) (class action waiver must be knowing and voluntary).  If courts so conclude, then removing sex discrimination and harassment claims from arbitration will pave the way for class actions to return for such claims.

[28] Harassment claims require overt (and often repeated) acts on the part of the harasser, such that there are practical limits on the number of employees that can be harassed at a given time.  Harassment claims are also less suitable for class treatment because there are individual differences in harassing conduct between employees; some employees may have been harassed to a degree that meets the legal standard while others were not. Thus employers face limited exposure to harassment class actions.

[29] Elizabeth Tippett, Robbing a Barren Vault; The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Empl. L. J. 433, 467 (2012)("the employment equivalent of being hit by lightning").

[30] Id. at 462.

[31] Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 373 (2011); Tippett, Robbing a Barren Vault, supra note 29, at 446.

[32] This is essentially what Microsoft, Uber, and Lyft have done voluntarily, although their carve-out is limited to sex-based harassment claims only.

[33] Carve-outs may prove complex to navigate as a practical matter, because harassment claims may be asserted alongside other claims not included in the Act - such as retaliation claims, or claims of harassment or discrimination on the basis of other protected categories.  In such cases, the claims covered by the arbitration agreement would presumably proceed to arbitration, while the non-arbitrable claims would proceed to litigation.  However, the procedural outcome would depend in part on the wording of the arbitration agreement - it's possible an employer might prefer to litigate the claims together rather than proceeding in two forums at once.

[34]  Equal Employment Opportunity Commission, Select Task Force on the Study of Harassment in the Workplace 7 (2016)

[35] Id.

[36]  Id at 11-13.

[37] The relatively low number of employment arbitration claims identified by Estlund could suggest that plaintiff's attorneys consider arbitrable claims less valuable.  Estlund supra note 14.

[38] 42 U.S.C. § 2000e(b); See also Lewis L. Maltby & David C. Yamada, Beyond 'Economic Realities': The Case for Amending Federal Employment Discrimination Law to Include Independent Contractors, 38 B.C. L. Rev. 239 (1997).

[39] See LexisNexis, Labor & Employment Law - Discrimination: Employment Discrimination, LexisNexis 50-State Surveys, Statutes & Regulations.

[40] Id.  See e.g. Alaska Stat. § 18.80.300; Cal. Gov. Code § 12926; Idaho Code § 67-5902; N.J Stat. 10:5-5; 43 P.S. § 954.  Nevertheless, domestic workers can be quite vulnerable where states exclude them specifically from coverage, or where they represent the sole employee and the state does not cover employers with a single employee.  See Rights Begin at Home, Defending Domestic Workers' Rights in California, National Employment Law Project,

[41] See e.g. Spirides v. Reinhardt, 613 F.2d 826, 830 (D.D.C. 1979); Cobb v. Sun Papers Inc., 673 F.2d 337, 341 (11th Cir. 1982).

[42] Bureau of Labor Statistics, (June 7, 2018).  Broader trends in the labor market suggest that companies will continue to make use of independent contractors.  As early as 1990, scholars documented a trend toward "subcontracting, franchising, concessions and outsourcing…which places many workers…beyond the range of employment protection laws".  See Hugh Collins, Independent Contractors and the Challenge of Vertical Disintegration to Employment Protection Law, 10(3) Oxford J. Of Legal Studies 353 (1990).  Labor economist, and former Administrator of the Department of Labor's Wage and Hour Division, David Weil documented this continued trend in his 2014 book, The Fissured WorkplaceDavid Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (2014).  While some of this outsourcing may consist of subcontracting with small, undercapitalized companies, it can also mean contracting directly with workers.

[43] See Complaint, Ashley Judd v. Harvey Weinstein, Case No. SC129204, Complaint (Cal. Super. Ct. Apr. 30, 2018) (asserting various non-employment statutory and tort claims against Weinstein).

[44] Jacob Bernstein, Matthew Schneider & Vanessa Friedman, Male Models Say Mario Testino and Bruce Weber Sexual Exploited Them, N.Y. Times (Jan. 13, 2018); Emilia Petrarca, Fashion's #MeToo Movement is Loudest on Instagram: Models Are Sharing Devastating Stories of Abuse in DMs, The Cut (Apr. 5, 2018),  See also Yuki Noguchi, Unequal Rights: Contract Workers Have Few Workplace Protections, National Public Radio (Mar. 26, 2018),

[45] Emily Steel, At Vice, Cutting-Edge Media and Allegations of Old-School Sexual Harassment, N.Y. Times (Dec. 23, 2017) (describing settlement with freelancer); Danielle Corcione, The Shitty Media Men List is the #MeToo of Toxic Newsrooms: A Failure to Protect Non-Male Freelance Workers, 18 Feminist Media Studies (2018).

[46] See Elizabeth Tippett, Using Contract Terms to Detect Underlying Litigation Risk: An Initial Proof of Concept, 20 Lewis & Clark L. Rev. 533 (2016).  The gig economy encompasses an estimated 4 million workers, according to Intuit, the makers of Turbotax software. Patrick Gillespie, Intuit: Gig Economy is 34% of US workforce, CNN Money (May 24, 2017),

[47] Nathan Heller, The Gig Economy is Especially Susceptible to Sexual Harassment, The New Yorker (Jan. 25, 2018),

[48] Id.

[49] See Cobb v. Sun Papers, Inc., 673 F.2d 337 (11th Cir. 1982).  Independent contractors may be able to avail themselves of coverage to the extent they can meet the requirements for employee status under the so-called "control test."  See Nationwide Mut. Ins. Co. v. Darden 503 US 318 (1992) (where the statute does not meaningfully define "employee", common law control test applies); Frankel v. Bally, Inc., 987 F.2d 86 (2nd Cir. 1993) (apply the control test following Darden); Wilde v. County of Kandiyohi, 15 F.3d 103, 105-106 (8th Cir. 1994). Danielle Tarantolo, From Employment to Contract: Section 1981 and Antidiscrimination Law for the Independent Contractor Workforce, 116 Yale L. J. 189, 193 (2006) (section 1981 protects independent contractors for discrimination on the basis of race, but not gender, and does not cover harassment claims).

[50] See infra notes 71-75.

[51] See e.g. Dunn v. Washington County Hosp., 429 F.3d 689 (7th Cir. 2005) (hospital can be liable for doctor's harassment of nurses, despite his status as an independent contractor); Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir. 1998) (employers liable for harassment of employees by customers under a negligence standard); Berry v. Delta Airlines, Inc. 260 F.3d 803 (7th Cir. 2001). See also 29 C.F.R. § 1604.11(e).

[52] Berry, 260 F.3d 803 (7th Cir. 2001).

[53] Orly Lobel, Law of the Platform, 101 Minn. L. Rev. 87 (2016); Miriam A. Cherry, Beyond Misclassification: The Digital Transformation of Work, 37 Comp. Lab. L. & Pol'y J. 577, 597 (2016); Valerio De Stefano, The Rise of the "Just-In-Time Workforce": On-Demand Work, Crowdwork, and Labor Protection in the "Gig-Economy," 37 Comp. Lab. L. & Pol'y J. 471, 472 (2016); Keith Cunningham-Parmeter, From Amazon to Uber: Defining Employment in the Modern Economy, 96 B.U. L. Rev. 1673, 1684 (2016); Benjamin Means & Joseph A. Seiner, Navigating the Uber Economy, 49 U.C. Davis L. Rev. 1511, 1511 (2016); Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol'y Rev. 479, 480 (2016).

[54] Cunningham-Parmeter, supra note 53, at 1707; Means & Seiner, supra note 53, at 1529-30;.  Miriam Cherry and Antonio Aloisi examined the possibility of an intermediate category between contractors and employees.  Miriam Cherry and Antonio Aloisi, 'Dependent Contractors' in the Gig Economy: A Comparative Approach, 66 Am. U. L. Rev. 635 (2017).  Based on their comparative analysis of legal regimes that recognized such intermediary status, they concluded that having a third category of worker reduced legal protections for workers overall.

[55] Lobel, supra note 53 at 137; Charlotte Alexander & Elizabeth Tippett, The Hacking of Employment Law, 82 Missouri L. Rev. 973 (2018).

[56] Seattle, Wash., Ordinance 124968 (Dec. 23, 2015).  See Charlotte Garden, The Seattle Solution: Collective Bargaining by For-Hire Drivers & Prospects for Pro-Labor Federalism, Harv. L. and Pol'y Rev. 1 (2017), The ordinance is currently being challenged under antitrust principles.  See Chamber of Commerce of the United States v. City of Seattle, No. 17-35640, 2018 WL 2169057 (9th Cir. May 11, 2018).  See also Dmitri Iglitzin, Jennifer Robbins, The City of Seattle's Ordinance Providing Collective Bargaining Rights to Independent Contractor For-Hire Drivers: An Analysis of the Major Legal Hurdles, 38 Berkeley J. Emp. & Lab. L. 49 (2017) (analyzing anti-trust issues, and questions of NLRA preemption).  Allowing independent contractors to bargain collectively would also enable them to negotiate for measures to protect themselves against harassment, like safety measures. 

[57] Alexander & Tippett, supra note 55.

[58] N.Y. City, N.Y. Code § 8-102(5)(2016); Banks v. Correctional Services Corp., 475 F.Supp.2d 189, 198 (2007); Fowler v. Scores Holding Co., Inc., 677 F.Supp.2d 673, 680 (2009).

[59] This approach would be comparable to a "least cost avoider" approach to imposing liability in harassment cases.  See Michael C. Harper, Employer Liability for Harassment Under Title VII: A Functional Rationale for Faragher and Ellerth, 6 San Diego L. Rev. 41, 64-66 (1999).

[60] See generallyCharlotte Alexander, Workplace Information-Forcing: Constitutionality and Effectiveness, 53 Am. Bus. L. J. 487 (2016).

[61]  Molly McHugh, Uber and Lyft Drivers Work Dangerous Jobs - but They're on Their Own, Wired (Mar. 10, 2016), (Various recommendations to improve driver safety); CA Assembly Bill 1761, Assemb. Judiciary Comm. (Ca. 2017) (panic button for "individual[s] who, in any particular workweek, performs at least two hours of work for a hotel employer", including subcontracted workers).

[62] See e.g. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077 (3d Cir. 1996); Lissau v. Southern Food Svc., Inc., 159 F.3d 177, 180 (4th Cir. 1998); Indest v. Freeman, 164 F.3d 258, 262 (5th Cir., 1999).

[63] See Sheridan v. DuPont, 100 F.3d at 1077; Lissau v. Southern Food 159 F.3d at 180.

[64] See Tracy Gonos, A Policy Analysis of Individual Liability - The Case for Amending Title VII to Hold Individuals Personally Liable for Their Illegal Discriminatory Actions, 2 N.Y.U. J. Legis. & Pub. Pol'y 265 (1999).

[65] Faragher v. City of Boca Raton, 524 U.S. 775, 799 (1998).

[66] David Sherwyn, Michael Heise & Zev. G. Eigen, Don't Train Your Employees and Cancel Your "1-800" Harassment Hotline: An Empirical Examination and Correction of the Flaws in the Affirmative Defense to Sexual Harassment Charges, 69 Fordham L. Rev. 1265, 1297 (2001).

[67] See e.g. Indest v. Freeman Decorating, Inc., 164 F.3d 258, 265-266 (5th Cir. 1999).  See also, Andreoli v. Gates, 482 F.3d 641, 644 (3d Cir. 2007) (applying negligence standard to co-worker harassment, and crediting employer for undertaking a timely investigation and warning harasser that the company "does not tolerate" his behavior).

[68] See Cal. Gov't Code § 12940(j)(3).

[69] See e.g. Brown v. Scott Paper Worldwide Co., 143 Wash.2d, 349, 358 (Wash. 2001) (state civil rights law contemplates individual liability for supervisors); New York State Div. of Human Rights v. ABS Electronics, Inc., 102 A.D.3d 967 (N.Y.A.D. 2d Div. 2013)(imposing individual liability where individual has an ownership interest or "power to do more than carry out personnel decisions made by others"); Vivian v. Madison, 601 N.W.2d 872, 878 (Iowa 1999). 

[70] See e.g. Rev. Code Wash. 49.60.220; Mass. Gen. Laws Ann. 151B §4(5); N.Y. Exec. Law § 296(6).  Aiding and abetting theories have also been used to sue supervisors for deliberate indifference to an employee's harassment complaint.  See Chapin v. Univ. of Massachusetts at Lowell, 977 F.Supp. 72, 79-80 (D.Mass. 1997).

[71] James Ottavio Castagnera, Individual Liability for Sexual Harassment, 61 Am. Jur. Trials 489 (1996).  See also Lawson v. Straus, 750 So.2d 234 (La. Ct. App. 2000) (battery).

[72] Castagnera, supra note 71.

[73] See Andrade v. Arby's Rest. Grp., Inc., 225 F.Supp.3d 1115 (N.D. Cal. 2016).

[74] Hoffman-La Roche Inc., Zeltwanger, 144 S.W. 3d 438 (Tx. 2004) ("when the gravamen of the plaintiff's complaint is for sexual harassment, the plaintiff must proceed solely under a statutory claim unless there are additional facts, unrelated to sexual harassment, to support an independent tort"); Nischan v. Stratosphere Quality, LLC, 865 F.3d 922, 934 (7th Cir. 2017) (intentional infliction of emotional distress claim preempted by state civil rights law where they were based on harassment allegations). See also Jill Jensen-Welch, Suing the Bastard Boss: Personal Liability of Supervisors for Workplace Sexual Harassment, Defense Counsel J. (2002).

[75] Nischan v. Stratosphere, 865 F.3d 934 (7th Cir. 2017) (battery claim barred by workers' compensation exclusivity rule).  Konstantopoulos v. Westvaco Corp., 690 A.2d 936 (Del. 1996) (tort claims based on harassment conduct barred by workers' compensation exclusivity); Hibben v. Nardone, 137 F.3d 480 (7th Cir. 1998) (emotional distress claim based on harassment barred by workers' compensation act). But see Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001) (tort claims involving harassment conduct not barred by state workers' compensation act). 

[76] Kalley R. Aman, No Remedy For Hostile Environment Sexual Harassment?: Balancing a Plaintiff's Right to Relief Against Protection of Small Business Employers, 4 J. Small & Emerging Bus. L. 319, 336 (2000) ("most jurisdictions require a showing of conduct much more egregious and offensive than what would constitute hostile environment sexual harassment under Title VII").

[77] Restatement (Third) of Torts: Liability for Physical and Emotional Harm§ 46 (Am. Law Inst. 2012) ("extreme and outrageous conduct [that] intentionally or recklessly causes severe emotional harm"); Robel v. Roundup Corp., 148 Wash. 2d 35, 51 (Wash. 2002) (conduct that exceeds "all possible bounds of decency…utterly intolerable in a civilized community").

[78] Aman, supra note 76 at 336.

[79] Cal. Labor Code § 2802.

[80] Under Jacobus v. Krambo Corp., an accused employee would be entitled to indemnification for a harassment case where the acts were "performed in the course and scope of employment."  78 Cal.App.4th 1096 (2000). In that case, a CFO engaged in various forms of sexual conduct toward a secretary, including sharing erotic stories he had written, providing shoulder rubs, and various forms of sexual banter.  Id at 1101. The CFO argued that the secretary consented to the conduct, and the jury found in the CFO's favor.   Id at 1102-103. In subsequent litigation over indemnification, the Court held that the CFO was entitled to be indemnified under California Labor Code Section 2802 because the conduct was "other than sexual misconduct or sexual harassment" (based on the jury's verdict).  Id at 1103.   It was within the scope of employment because it was "simply part of the social intercourse that occasionally occurs in modern office settings."  Id at 1103.

[81] Jodi Kantor & Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. Times (Oct. 5, 2017),

[82] Ellen Gabler, Megan Twohey & Jodi Kantor, New Accusers Expand Harvey Weinstein Sexual Assault Claims Back to '70s, N.Y. Times (Oct. 30, 2017),

[83] Ronan Farrow, Harvey Weinstein's Secret Settlements, The New Yorker (Nov. 21, 2017),

[84] Terry Gross, 'Times' Reporters Describe How A Paper Trail Helped Break The Weinstein Story, National Public Radio, (Nov. 15, 2017)

[85] Farrow, supra note 83; See also Two Settlements that Harvey Weinstein Reached with His Accusers, The New Yorker, accessed Jun. 2, 2018) (excerpt of the settlement with Zelda Perkins).

[86] See e.g. Carlini v. Gray TV Grp., Inc., No. A-15-1239, 2017 WL 1653624 at *4 (Neb. Ct. App. 2017) (finding employee breached settlement agreement containing non-disclosure agreement); Gulliver Schools Inc. v. Snay, 137 So.3d 1045, 1046, 1048 (Fla. Dist. Ct. App. 2014) (finding breach of confidentiality provision in settlement agreement where claimant disclosed settlement to daughter, who posted about it on Facebook); Smelkinson Sysco v. Harrell, 162 Md. App. 437, 456 (Md. Ct. Spec. App. 2005); Mathis v. Controlled Temp., Inc., 2008 WL 782634 at *7 (finding breach of settlement agreement when employee disclosed to future employer that she "won" a legal dispute with her former employer and "a 'little bit' about how she was harassed by the owner, manager, or her boss' and that she 'had some problems with her manager treating her badly.")  But see Robinson v. Harrison Transportation Svcs. Inc., No. 5:15-CV-298, 2016 WL 3647616 (E.D.N.Ca. 2016) (withholding approval of confidentiality provision in settlement of FLSA case); Goldberg v. Egg Harbor Twp. Sch. Dist., No. 11-1228 (RBK/KMW), 2011 WL 5554501 at *7 (D.N.J. 2011) (refusing to enforce confidentiality provision in settlement agreement with public employer because public records laws required their disclosure). Cf. Tujetsch v. Bradley Dental, LLC, No. 09C5568, 2010 WL 5099981 at *2 (N.D.Ill. 2010) (noting that a non-disclosure agreement in a settlement agreement without an exception for lawful court orders and subpoenas would be unenforceable).

[87] Hasbrouck v. BankAmerica Hous. Servs.,187 F.R.D. 453, 459, 461 (N.D.N.Y. 1999).

[88] See e.g. Carrie Menkel Meadow, Whose Dispute is it Anyway? A Philosophical and Democratic Defense of Settlement, 83 Geo. L. J. 2663, 2688 (1995).  See also Robert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L. J. 950, 966-968 (1979); Owen Fiss, Against Settlement, 93 Yale L. J. 1073, 1075 (1984); Amy J. Cohen, Revisiting Against Settlement: Some Reflections On Dispute Resolution And Public Values, 78 Fordham L. Rev. 1143, 1163-68 (2009); David Luban, Settlements and the erosion of the Public Realm, 83 Geo. L. J. 2619, 2643 (1995).

[89] Menkel Meadow, supra note 88 at 2692.

[90] Id.

[91] Scott A. Moss, Illuminating Secrecy: A New Economic Analysis of Confidential Settlements, 105 Mich. L. Rev. 867, 878 (2007).

[92] Id. at 879.

[93] Plaintiff's lawyer Gloria Allred argued that plaintiffs sometimes prefer secrecy.  James Rufus Koren, Weinstein scandal puts nondisclosure agreements in the spotlight, L.A. Times (Oct. 23, 2017), (quoting Allred).

[94] Gene Maddaus, Two More Accusers Sue Bill O'Reilly for Defamation, Variety (Dec. 20, 2017),; Complaint, Bernstein v. Bill O'Reilly, Case No. 1:17-cv-09483 (S.D.N.Y. Dec. 4, 2017), (last visited June 3, 2018).

[95] See e.g. Tomson v. Stephan, 696 F.Supp. 1407, 1414 (1988) (suit alleged breach of confidentiality provision when defendant asserted publicly that the claim was "totally unfounded"); Halco v. Davey, 919 A.2d 626, 630 (Me. 2007) (employee stated cognizable breach of contract claim based on non-disclosure and non-disparagement provision when sheriff publicly stated that the county had a "really good case"); Welsh v. City and County of San Francisco, No. C-93-3722 DLJ, 1995 WL 714350, (N.D. Cal. Nov. 27, 1995) (complainant alleged defamation against police chief for calling her harassment lawsuit "absolutely absurd" and "false and malicious").  See also Wesson v. FMR, LLC 34 Mass.L.Rptr. 539, n. *7 (2017) (employee sued for breach of settlement provisions relating to providing an employment reference). 

[96] Carl J. Dahlman, The Problem of Externality, 22 J.L. & Econ. 141, 141 (1979) ("an externality is present [when] there is a divergence between private and social cost"). 

[97] Minna Kotkin, Invisible Settlements, Invisible Discrimination, 84 N.C. L. Rev. 927, 929 (2006).

[98] See id. at 292.

[99] New Jersey considered a bill that was slightly narrower than New York's, but it died in chamber.  S.A. 5287 § 2, 217th Leg., Reg. Sess. (N.J. 2017).  New Jersey's proposed statute would have encompassed provisions with the "purpose or effect of concealing the details relating to a claim of discrimination, retaliation or harassment." Id.

[100] California SB 820.

[101] Id.  The parties can also agree to keep the amount of the settlement confidential.

[102] California SB 1300, Section 4.

[103] Id.

[104] Ca. Assembly Bill 3080, Section 3.

[105]  Pa. Senate Bill 999 at § 1(a)(3).  The Pennsylvania legislation also has an exception for the amount of the settlement and the identity of the victim.

See N.Y. Senate Bill 7507C, Part KK, Subpart D.

[107] N.Y. Senate Bill 6382 § 2.

[108] For an example of this type of agreement, see Confidential Information And Invention Assignment Agreement, Orrick's Technology Companies Group, (last visited Jun. 2, 2018).

For examples of social media policies, see Adidas group social media guidelines,; Three D, LLC, 361 NLRB 31 at *8 (2014) (social media policy required employees to "include a disclaimer that the views you share are yours and not necessarily the views of the Company."); Best Buy, Best Buy Social Media Policy,; Ford, Ford Motor Company's Digital Participation Guidelines,; Daniel Oberdorfer et al., Policy on blogging, social networking, tweeting, and other public discourse on the internet, West's Legal Forms.

[110] Crawford v. Nashville, 555 U.S. 271, 275 (2009) (suggesting that public forms of opposition might be protected under Title VII); Payne v. McLemore's Wholesale & Retails Stores, 654 F.2d 1130 (5th Cir., 1981) (public picketing a protected form of opposition under Title VII); EEOC v. Crown Zellerbach Corp., 720 F.2d 1008 (9th Cir. 1983) (writing public letter protection under opposition clause of Title VII).

[111] Hispanics United of Buffalo, Inc. & Carlos Ortiz, 37 NLRB 359, 369-370 (Dec. 14, 2012); Regina Robson, "Friending" the NLRB: The Connection between Social Media, "Concerted Activities" and Employer Interests, 31 Hofstra Lab. & Emp. L. J. 81, 84 (2013); National Labor Relations Board, General Counsel Memo 14-04,; Three D, LLC 361 NLRB No. 31 at *3 (Aug. 22 2014) (Facebook discussion about employer's failure to properly calculate tax withholding protected concerted activity).

[112] Other more exotic forms of speech restrictions - like provisions in Harvey Weinstein's agreements requiring victims to make affirmative statements, or destroy evidence, would likewise be rendered unenforceable by the proposed legislation.  The proposed legislation would also affect non-cooperation clauses, which prohibit parties from helping others pursue claims against the employer.  Commentators have argued in the past that non-cooperation clauses are unlawful.  See Stephen Gillers, Speak No Evil: Settlement Agreements Conditioned on Noncooperation are Illegal and Unethical, 31 Hofstra L. Rev. 1, (2002).  Cf. Smelkinson Sysco v. Harrell, 162 Md. App. 437, 456 (Md. Ct. Spec. App. 2005) (enforcing non-cooperation provision).

[113] Pa. Senate Bill 999; California Senate Bill 820 (containing an exception for the amount of the settlement, though this bill is limited to post-filing agreements, and does not restrict settlement on a pre-filing basis).

[114] They may do so to address threatened breach of contract, defamation, or "false light" privacy claims, even if the claims are not especially meritorious.  Welsh v. City and County of San Francisco, 1995 WL 714350 at *9 (statements alleged to be defamatory covered by the litigation privilege); Meyerson v. Harrah's East Chicago Casino, 67 Fed.Appx. 967 (7th Cir. 2003) (affirming summary judgment against defamation claim by accused, because "truth is a complete defense to defamation"); Smith v. Arkansas Louisiana Gas Co., 645 So.3d 785, 791 (2d Cir. 1994); Carlton v. Dr. Pepper Snapple Group, Inc., 228 Cal.App.4th 1200, 1208 (breach of contract claim brought by accused employee properly dismissed because he failed to identify contractual promises that were breached); Wong v. Digitas Inc., No. 3:13-CV-00731 (D.Conn. 2015) 2015 WL 59188 at *3, 7 (harassment procedures in anti-harassment policy did not create an exception to the employment-at-will doctrine that would require the employer to interview the accused before terminating him).  See also Martin v. Baer, 928 F.2d 1067, 1072-1073 (11th Cir. 1991) (affirming summary judgment claim against accused employee alleging breach of contract and infliction of emotional distress, which were eventually dismissed on the basis that harassment policy did not create an implied duty to those accused of harassment and the absence of intentional conduct on the part of the employer); Orr v. Meristar Vt. Bev. Corp., No. 2003-143, (Vt. 2003) 2003 WL 25745111 at *2 (affirming summary judgment on breach of contract claim brought by accused).

[115] More broadly, employers may be reluctant to offer broad non-disparagement provisions in settlements with any departing executives, regardless of whether they are accused of misconduct.  Settlement agreements with departing executives are common, since they are often a condition precedent for the executive to receive promised severance payments. Employers fearful of as-yet-undiscovered misconduct may be reluctant to restrictions on their own speech vis a vis the departing executive, at least without a substantial carve-out.

[116] One harassment investigator told me about a situation she investigated involving a serial harasser who had been subject to serious discipline following prior harassment investigations.  However, victims from those prior investigations were not informed of the discipline and assumed nothing had been done.  In the course of a later investigation, the investigator heard repeatedly from witnesses that the harasser had not been disciplined, and these witnesses apparently had advised the most recent complainant of that (inaccurate) fact.  One might readily imagine how such a situation would erode trust in the employer's overall investigation and disciplinary systems, and make victims more reluctant to come forward.

[117] Restatement of Employment Law § 6.01-6.02 (Am. Law. Inst. 2014); (elements of a defamation claim).

[118] Restatement (Second) of Torts, § 652e (Am. Law. Inst. 1977); Lloyd v. Quorum Health Resources, LLC, 31 Kan.App.2d 943, 1001 (Kan.Ct.App. 2003) (elements of false light/invasion of privacy are "(1) publication of some kind must be made to a third party; (2) the publication must falsely represent the person; and (3) that representation must be highly offensive to a reasonable person").

[119] Meyerson v. Harrah's East Chicago Casino, 67 Fed.Appx. 967 (7th Cir. 2003) (affirming summary judgment against defamation claim by accused, because "truth is a complete defense to defamation"); Restatement (Second) of Torts § 581A (Am. Law. Inst. 1977)("One who publishes a defamatory statement of fact is not subject to liability for defamation if the statement is true."); Turner v. Wells, 198 F.Supp.3d 1355, 1358 (S.D.Fl. 2016) (law firm's public investigation findings and conclusions not actionable defamation because statements were not false or were pure opinion).

[120] In some jurisdictions "actual malice" refers to "actual ill will, or a design causelessly and wantonly to injure [the] plaintiff." Rudebeck v. Paulson, 612 N.W.2d 450, 454 (Minn. 2000); Lewis v. Equitable Life Assur. Soc'y, 389 N.W.2d 876 (1986).  In other jurisdictions it refers to "knowledge of a statement's falsity or a reckless disregard of the statement's truth or falsity."  Restatement of Employment Law § 6.02, Reporters Notes, Comment d (Am. Law. Inst. 2014).  

[121] Investigations tend to protect employers from both types of malice.  Garziano v. E.I. Du Pont De Nemours & Co., 818 F.2d 380, 391 (5th Cir., 1987) (Where "management honestly and sincerely believed [the complainant's] allegations of sexual harassment…there [was] insufficient evidence in the record to support the allegations of malice or bad faith."); Bisso v. De Freest, 251 AD.2d 953, 953 (1998) (qualified privilege protected employer's statement to other employees that accused had been terminated for harassment).  As the court explained in Rudebeck v. Paulson, where an employer "interviewed and took statements from a number of witnesses, reviewed [the accused's] history of similar complaints, and talked to [the accused] himself...[the] investigation provided reasonable or probable grounds to support the statements concerning [the accused], which are therefore protected by a qualified privilege." 612 N.W.2d at 454.  See also Restatement of Employment Law § 6.02, Reporters Notes, Comment d (Am. Law. Inst. 2014)("negligence or even gross negligence does not establish actual malice").

[122] In defamation claims, courts also sometimes consider whether the recipient of the information had a legitimate interest in the information.  See Bisso v. Freest et al., 251 A.D.2d at 953 (statement at staff meeting protected by qualified privilege because "employees [had] worked with plaintiff" and "had a legitimate interest in knowing that a serious sanction had been imposed for violating of a workplace rule"); Restatement of Employment Law § 6.02 (Am. Law. Inst. 2014) (qualified privilege applies to statements made to "employer's own employees and agents"); Id. at Reporter's Notes, Comment c ("Not all jurisdictions recognize intra-employer or intra-corporate communications as publications for purposes of defamation law"); Bisso v. Freest et al., 251 A.D.2d at 953.  For example, in Smith v. Arkansas Lousiana Gas Co., a number of employees complained about abusive language and harassing behavior by a mid-level department manager.  645 So.3d at 791.  Following an investigation, the manager was demoted.  A handful of managers were informed of the demotion, as well as 30-35 other personnel who worked in the accused manager's facility.  The court held that the disclosures were made in good faith because the company had "reason to believe they were truthful" as a result of their investigation.  Id at 791.

[123] NY Senate Bill S7507C, Part KK, subpart E ("every employer" must use the model training program or one that "equals or exceeds the minimum standards" on an annual basis); Del. HB 360 (two hours of training every two years for employers with 50 or more employees); PA HB 2282.

[124] Conn. House Bill 5043 (expanding training to non-supervisory employees); Cal. Senate Bill 1300 (expanding training to non-supervisory employees, and bystander intervention training).

[125]  Cal Gov't Code Section § 12950.1(a) (2 hours of training every 2 years for supervisors at employees with 50 or more employees).

[126] Elissa Perry, et al., The Impact of Reason for Training on the Relationship Between 'Best Practices' and Sexual Harassment Training, 21 Human Resource Development Quarterly 187, 187 (2010); Frank Dobbin & Erin Kelly, How to Stop Harassment: Professional Construction of Legal Compliance in Organizations, 112 Am. J. of Soc.1203,­ 1204 (2007).

[127] EEOC Report supra note 34 at 45.

[128] Id at 46; Sheeren Bingham & Lisa Scherer, The unexpected effects of a sexual harassment educational program, 37 J. of Applied Behavioral Science 125, 140 (2001);Heather Antecol & Deborah Cobb-Clark, Does Sexual Harassment Training Change Attitudes? A View from the Federal Level, 84 Soc. Sci. Q. 826, 838 (2003); Gerald Blakely, Eleanor Blakely & Robert Moorman, The Effect of Training on Perceptions of Sexual Harassment Allegations, 28 J. of Applied Social Psych. 71, 77 (1998).

[129] EEOC Report supra note 34 at 47; Lisa Kearney, Aaron Rochlen & Eden King, Male Gender Role Conflict, Sexual Harassment Tolerance, and the Efficacy of a Psychoeducative Training Program, 5 Psychology of Men & Masculinity 72, 79 (2004); Vicki Magley,et al, Changing Sexual Harassment within Organizations via Training Interventions: Suggestions and Empirical Data, The Fulfilling Workplace: The Organization's Role in Achieving Individual and Organizational Health 228 (Burke & Cooper, ed. 2013). But see Elissa Perry, Carol Kulik, & James Schmidtke, Individual Differences in Effectiveness of Sexual Harassment Awareness Training, 28 J. of Applied Soc. Psychol.698, 700 (1998) (in experimental study, reduced harassing behaviors among men with a high propensity to harass).

[130] Bingham & Scherer, supra note 128 (training associated with victim blaming); Benjamin Walsh, Timothy Bauerle, & Vicki Magley, Individual and Contextual Inhibitors of Sexual Harassment Training Motivation, 24 Human Resource Development Quarterly 215, 217 (2013) (discussing evidence of backlash).

[131] EEOC Report supra note 34 at 56-57. Sharyn Potter & Mary Moynihan, Bringing in the Bystander In-Person Prevention Programs to a U.S. Military Installation: Results from a Pilot Study, 176 Military Medicine 870, 872 (2011)(training associated with increased number of bystander behaviors). Civility trainings likewise could benefit from further research as to their effectiveness in reducing harassment and discrimination. EEOC Report supra note 34 at 56.  One promising study found improvements in attitudes and social relationships following a six-month month civility-based intervention.  Michael Leiter et al., The Impact of Civility Interventions on Employee Social Behavior, Distress, and Attitudes, 96 J. of Applied Psychology, 1258 (2011).  That study involving a substantial, sustained intervention through weekly and biweekly meetings to improve interpersonal interactions, rather than a single training more typical of corporate training sessions.  Id at 1263.  That study was also conducted in Nova Scotia, Canada, where civility may have different cultural significance than in the United States.  Id at 1262.

[132] Harassment Trainings: A Content Analysis, 39 Berkeley J. Lab & Emp. L. __ (2018) (forthcoming 2018)

[133] Id.

[134]  Id.

[135]  Id.

[136] Id.

[137] California's statute, for example, requires that the training include "information and practical guidance regarding the federal and state statutory provisions" regarding "sexual harassment", as well as "the prevention of harassment, discrimination and retaliation".  Cal Gov't Code § 12950.1(a).  New York's new statute includes a laundry list of sexual harassment-related content which the state must include in a model policy, and which each employer must adopt  (or one that "equals or exceeds the minimum standards provided by such model training"); NY Senate Bill S7507C, Part KK, subpart E (training must include "an explanation of sexual harassment consistent with guidance issued by the department"; "examples of conduct that would constitute unlawful sexual harassment"; "information concerning the federal and state statutory provisions concerning sexual harassment"; "information concerning employees' rights of redress"; "conduct by supervisors and any additional responsibilities for such supervisors".); Pennsylvania's proposed statute includes an even longer list of topics, broadly aimed at addressing discrimination, harassment and retaliation.  PA House Bill 2282 (Training must include "an explanation of discrimination, harassment and retaliation as unlawful acts"; "an explanation of sexual harassment"; "examples of different acts and behavior that could be considered unlawful discrimination, harassment and retaliation"; "bystander intervention"; "the effects of discrimination and harassment on victims"; "the consequences of being found to be in violation"; "a description of the employer's internal complaint policies"; "the process available to file a complaint", and separate topics for supervisors); Del. House Bill 360.  See also Connecticut House Bill 5043 (training shall include "federal and state statutory provisions concerning sexual harassment"; "bystander intervention training"; "A discussion of workplace civility").

[138] Susan Bisom-Rapp, Fixing Watches with Sledgehammers: The Questionable Embrace of Employee Sexual Harassment Training by the Legal Profession, 24 T. Jefferson L. Rev. 125, 133 (2002).

[139] See Report at 84-88.

[140] See Leiter et al supra note 131.

[141] Alexandra Kalev, Frank Dobbin, & Erin Kelly, Best Practices or Best Guesses?  Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies, 71 Amer. Soc. Rev. 589, 602 (2006).