Sexual Harassment: A Doctrinal Examination of the Law, An Empirical Examination of Employer Liability, and A Question About NDAs— Because Complex Problems Do Not Have Simple Solutions

The #MeToo movement casts critical light on the pervasive nature of sexual harassment, particularly in the employment context, and continues to motivate a number of initiatives that address important social and workplace ills. The problems this movement has uncovered, however, run much deeper and likely exceed the scope and capacity of many of the proposed “fixes” it has inspired. Worse still, however, is that some of the proposed fixes may prove counterproductive. This Article examines the history and development of the relevant employment laws, empirically assesses judicial holdings on the employers’ affirmative defense to liability, and argues that many employees may be better off with a nondisclosure agreement (NDA) in many instances. Our conclusion sketches out the basic contours of an alternative legal standard, a new affirmative defense, and related policy initiatives that call into question the common perception that privacy benefits employers and not employees

Evaluating Employment Arbitration: A Call for Better Empirical Research

Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others. As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have focused on outcomes—comparisons between litigation verdicts/judgments and arbitration awards. This work suffers from a serious selection bias, for there is no reason to believe that cases that result in arbitration awards are otherwise comparable to cases that have survived the several serious gauntlets that lie in the path of a case before it goes to trial. Because mediation is often an initial step in most employment arbitration system and arbitrators are not likely to consider dispositive motions, weaker cases are likely to get to a hearing in arbitration than in court. We wholeheartedly endorse good empirical work as an important means of understanding and addressing controversial policy issues, especially in the arbitration arena, and tried our hand at such work a decade ago. We have written this paper to encourage research that goes beyond evaluating awards within the AAA data set and to engage in a longitudinal study of the history of claims—from when they are initially filed with administrative agencies or arbitration organizations to when they are settled or adjudicated. After an overview of U.S. arbitration law with respect to employment claims, we examine current empirical work in this area, highlight its relevance, identify its limitations, and outline the broad contours of the type of work we believe is needed to advance the policy debate

Affect and the perception of injustice

Traditional approaches to distributive justice have seen the determination of whether or not a distribution of rewards is fair as a cognitive process, with emotion entering the process only as an outcome of a decision that the distribution was unjust. In this paper, we propose a modification of this view. Namely, we propose that justice is not calculated unless the actor feels a justice-related emotion (anger or guilt). These emotions, which arise in the course of social interaction, lead to the instigation of justice deliberations. Using Affect Control Theory, we explain how the justice-related emotions could arise in situations that traditional models of justice would characterise as unjust. Thus, our theory is able to account for the existing literature on justice. We then show how our theory suggests several novel implications about situations that would be seen as unjust. Comparisons of our model to related models of justice are also discussed

Evaluating Employment Arbitration: A Call for Better Empirical Research

Since at least 1991, issues surrounding mandatory arbitration of employment and other disputes have intrigued, perplexed, angered, gratified, and confounded academics, politicians, lawyers, and others. As with many legal issues, the first wave of scholarly work centered on the law. As the law has pretty much settled, academics have turned to empirical work, focusing on how employment arbitration works, and how it compares to employment litigation. In part due to pressure from California legislation, the American Arbitration Association (“AAA”), the nation’s leading provider of arbitration services, opened access to its data base. Owing to inevitable data limitations, most analyses have focused on outcomes—comparisons between litigation verdicts/judgments and arbitration awards. This work suffers from a serious selection bias, for there is no reason to believe that cases that result in arbitration awards are otherwise comparable to cases that have survived the several serious gauntlets that lie in the path of a case before it goes to trial. Because mediation is often an initial step in most employment arbitration system and arbitrators are not likely to consider dispositive motions, weaker cases are likely to get to a hearing in arbitration than in court. We wholeheartedly endorse good empirical work as an important means of understanding and addressing controversial policy issues, especially in the arbitration arena, and tried our hand at such work a decade ago. We have written this paper to encourage research that goes beyond evaluating awards within the AAA data set and to engage in a longitudinal study of the history of claims—from when they are initially filed with administrative agencies or arbitration organizations to when they are settled or adjudicated. After an overview of U.S. arbitration law with respect to employment claims, we examine current empirical work in this area, highlight its relevance, identify its limitations, and outline the broad contours of the type of work we believe is needed to advance the policy debate

Don\u27t 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

The Supreme Court\u27s two-pronged affirmative defense limiting employer liability for sexual harassment, articulated in the Faragher and Ellerth decisions, generated substantial scholarly commentary. Many scholars were quick to predict how lower courts would apply the affirmative defense. However, many predictions about the affirmative defense were advanced prior to the emergence of a sufficient number of judicial opinions applying it. In this article we report results of our empirical study of the first 72 post-Ellerth and Faragher opinions involving employers\u27 summary judgment motions that include affirmative defenses in response to allegations of sexual harassment in the workplace. We find that employer-related factors heavily influence the courts\u27 construction of both prongs of the affirmative defense. Somewhat surprising is the degree to which the courts look to employer conduct when characterizing employee conduct. In our discussion we consider the legal and policy implications generated by an incentive structure informed by the courts\u27 application of the affirmative defense