//  3/28/18  //  Commentary

My last two posts highlighted how #MeToo will have to address a series of legal doctrines and rules that have contributed to the systemic problem of sexual harassment, and I'll have some additional posts on that topic later on. In this post, I wanted to look at the current Supreme Court term through the lens of #MeToo. Although this term is a blockbuster, it doesn’t include any cases that directly raise issues of sexual discrimination or sexual harassment. But it does have some cases that indirectly relate to several themes that have come up in #MeToo, including the availability of remedies for victims of workplace harassment, and the threat of retrenchment in the wake of #MeToo. It’s interesting to consider the cases through that lens, because while we might not want courts to analyze the cases solely or primarily in that light, the cases reveal how legal institutions can contribute to some of the mechanisms that both enable harassment and undermine our ability to address it.

The Availability of Remedies

Many of the pieces that have sought to understand how, exactly, the current system failed harassment victims eventually come around to the lack of effective remedies for mistreatment in the workplace, and specifically how inhospitable and unavailable the remedies for victims are. Sometimes, it’snot clear what the remedies are; it also may not be clear how victims should avail themselves of those remedies; and sometimes it’s not clear whether the available remedies take seriously victim’s interests. Here are some cases in which the Court has decided or will decide issues that affect the ease or availability of a variety of different remedies for wrongdoing in the workplace.

Artis v. District of Columbia. The plaintiff in Artis alleged that her employer discriminated against her on the basis of her sex, and retaliated against her for reporting her supervisor’s actions.  But the legal issue in Artis was the meaning of a federal statute that provides a statute of limitations for state-law claims that are initially filed in federal court. When a plaintiff files a federal claim and supplemental state-law claims in federal court, a federal court may opt not to decide the state-law claims after it dismisses the federal claim on its merits. A plaintiff then has the option to refile the state-law claims in state court, and the statute at issue in Artis addressed how long a plaintiff has to make that decision. The plaintiff in Artis argued that the statute gave her the entirety of the state statute of limitations period, because the federal statute tolled the statute of limitations during which the plaintiff's claims were pending in federal court. DC, the defendant, argued that the statute gave plaintiffs 30 days to refile in state court after the suit was dismissed in federal court.

In a 5-4 decision, the Court sided with the plaintiff, endorsing an interpretation of the statute that gave plaintiffs more time to decide whether to continue pressing their state-law claims in state court. The dissenters argued that the majority’s interpretation of the statute posed serious constitutional problems.

Somers v. Digital Realty Trust Co. Somers addressed the meaning of a federal statute that provides protections for employees who report misconduct at work (specifically, violations of securities laws in the finance industry). One statute (Dodd-Frank) provides more extensive protections for whistleblowers than another statute (Sarbanes-Oxley) does. The Court held that the protections of the more generous statute, Dodd-Frank, are only available to employees who report misconduct to the government, rather than just within the company. The decision was unanimous.

National Labor Relations Board v. Murphy Oil. Murphy Oil (and the cases it is consolidated with) will address whether employers may prohibit “collective actions” of their employees via employment contracts that prohibit collective arbitration, among other practices. Because some legal claims will result only in small amounts of monetary damages for individual workers (such as violations of the minimum wage requirement, or some pay disparity/sex-discrimination-in-pay claims), workers may not press smaller-dollar-value claims unless they can litigate the claims collectively, and lawyers may not take those small-dollar-value claims unless the claims can be litigated collectively. The National Labor Relations Board concluded that agreements prohibiting collective litigation constitute unfair labor practices.

As I wrote in two earlier posts that highlighted the problems with NDAs and arbitration, sometimes victims of harassment find it easier to report misconduct when they are able to report alongside other victims. And the effort to stop arbitration agreements that might negatively impact our ability to uncover and remedy sexual harassment met with some success a few weeks ago.  After Take Care contributor Ian Samuel flagged Munger Tolles & Olson's effort to require summer associates to confidentially arbitrate sexual harassment claims, Munger quickly relented, and announced it would no longer require employees to confidentially arbitrate those claims.  The law firm Orrick later spontaneously announced it would no longer requires its employees to sign arbitration agreements.  But that solution--public pressure, and public naming and shaming--might not be an option for employees in every industry, which makes the legal structures governing arbitration all the more important.

Munger's statement  that its arbitration agreement was "wrong" also raises the question of why it was wrong.  Many of the reasons why Munger's arbitration agreement was wrong might also apply to the kind of arbitration agreement that Murphy Oil is considering--the negotiations that lead to the agreements involve parties with considerably different economic and political power; the agreements prevent some kinds of historically under-reported and under-remedied claims from being reported or remedied; and so on.  Those are some of the arguments that the employees in Murphy Oil are pressing for why the NLRB could reasonably concluded that agreements prohibiting collective litigation constituted unfair labor practices.

Perry v. Merit Systems Protection Board (this case is from last term). The plaintiff in Perry argued he had been discriminated against because of his race, age, and disability, and because his employer retaliated against him for reporting the discrimination.  But the legal question Perry addressed was how a plaintiff must proceed after the Merit Systems Protection Board dismisses a case that contains unlawful discrimination claims and violations of the Civil Service Reform Act. (The MSPB is the entity that adjudicates claims by federal employees related to personnel actions.) The government argued that when the MSPB dismisses a case that contains both discrimination and CSRA claims, a plaintiff must proceed with the discrimination claims in federal district court and the CSRA claims in the Federal Circuit—i.e., litigating on two separate fronts. The plaintiff argued that plaintiffs can proceed with all of the claims in district court. The Court sided with the plaintiff, 7-2.


These cases all concern the availability and ease of remedies for discrimination in the workplace—in Perry, does a plaintiff have to litigate in two separate forums to press a discrimination claim? In Artis, how long does a plaintiff have to decide whether to continue with litigation in state court when a federal court has dismissed her claim? In Murphy Oil, can workers aggregate their claims of mistreatment, or can employers require them to litigate or arbitrate them individually? And in Somers, how much does an employee have to go out on a limb before federal law protects the employee from retaliation?  And these aren't the only cases that raise issues that could effect the availability of remedies for mistreatment in the workplace--China Agritech, Inc. v. Resh, which addresses the statute of limitations period for absent class members, is another.

Of course the Court should not decide these cases based solely on whether employees are being treated fairly, or what the most effective set of remedies would be. Some of the legal issues in the cases are more or less straightforward, and the meaning of some of the relevant statutes is fairly clear.  But if the statute is clear, it just means that another legal institution, Congress, may have failed workers who suffer mistreatment in the workplace. And if the statute is not clear, are courts considering, and should they be considering, background presumptions about the availability of remedies when interpreting these laws? Are judges capable of considering those issues from the perspective of a worker who’s suffered mistreatment? Should they be?

Those are hard questions, but however you answer them, the point of this post is that the kinds of legal questions the Court is addressing affect an important tool for addressing mistreatment in the workplace, even though the cases may not be understood or decided in that light.


Masterpiece Cakeshop v. Colorado Civil Rights Commission

The question in Masterpiece Cakeshop is both a free speech question (do businesses have a right to refuse “expressive services” to customers whose identities or actions they disagree with) and a religious liberty question (do businesses have a right to refuse commercial services that they object, on religious grounds, to offering to certain customers). Masterpiece Cakeshop is related to one of the “solutions” that’s been batted around in the wake of #MeToo—specifically, can and should men opt not to hire or work alone with women (out of the fear that they will harass them, that the women will say they harassed them, or some other reason)?

In a prior post, I wrote about this idea and how instituting it would violate federal law in addition to causing a good deal of harm to women.  As I noted in yet another post, some proponents of that policy justify the policy on the basis of religion, and specifically preserving the sanctity and appearanc of sanctity in their marraige.  But whatever the justification, the result could replicate and exacerbate exisiting gender disparities:

It would keep women out of job interviews, networking opportunities, career advice, material job benefits, opportunities for career advancement, and any other number of things. The reality is that men still hold more leadership positions than women do, and cutting off women’s access to those positions and the people in them will only further perpetuate those disparities.

Chief Judge McMahon on the Southern District of New York also addressed the ramifications of a rule against being alone with women at work in her speech the William Nelson Cromwell Award. I recommend you read her remarks in their entirety.

Interestingly, the threat of retrenchment has also been levied at attempts to hold employers accountable for sexual harassment.  For example, sfter the recent successful effort to get Munger Tolles to rescind its attempt to require employees to confidentially arbitrate sexual harassment claims, some people responded that the result would be a net negative for women, since firm (and employers) would choose not to hire them if they couldn't force them to confidentially arbitrate any sexual harassment claims that might arise.


#MeToo and the Supreme Court are both in the news. Less appreciated is how the Court is involved in many of the legal issues that touch on questions that are part of #MeToo such as the availability of remedies for mistreatment or other unlawful behavior in the workplace.



Versus Trump: Blurring Public and Private Conduct

9/17/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason and Charlie discuss two new legal filings by the Trump DOJ that blur the line between the President as government official and the President as private citizen. In the first case, the government argues that the President's twitter feed is not an official public forum, so he can block people with whom he disagrees. In the second, the government argues that the President's denials that he sexually assaulted E. Jean Carroll were made in his official capacity as President. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

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Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

Take Care

June Medical As The New Casey

6/29/20  //  Quick Reactions

As in prior abortion cases, the Chief Justice gave abortion supporters a victory while at the same time laying the groundwork for much weaker protections for abortion rights.

Leah Litman

Michigan Law School