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Fox News and the Pitfalls of Sexual Harassment

Over the weekend, another Fox News host has come under fire for sexual harassment. Fox News suspended Eric Bolling after three women accused him of sending lewd photos. Twitter users were quick to point out Bolling’s hypocrisy by resurrecting a Bolling Tweet from 2011, asking “why would anyone take a picture of one’s junk anyway?”Bolling’s suspension is the latest in a string of sexual harassment scandals that have rocked the network:

To date, Fox News has paid $13 million to settle claims of sexual harassment towards women by its employees. Even if Fox News doesn’t believe in feminism, its shareholders have a significant interest in avoiding lawsuits that result in million dollar payments to the other party. So can a profit minded company avoid these kinds of harassment claims?

Sexual HarassmentChange the Corporate Culture

Given the recent terminations of prominent television hosts and high ranking executives, Fox News probably has a larger issue with sexual harassment than a couple of rogue employees. Critics might be quick to point to Fox New’s political affiliations; how could an organization that defended “grab them by the pussy” not be a hostile work environment? However, most politically conservative organizations (Heritage Foundation, National Review, Federalist Society, etc.) don’t have the same sexual harassment problems that Fox News has right now. Fox News doesn’t have to change its political stances to police its employee’s sexual abuses.

One of the biggest factors is how the organization deals with sexual harassment. If the company settles a complaint and demands the victim keep quiet about his or her allegations, the problem will continue. Likewise, if the company merely transfers the harasser between departments, then the problem with persist. The harasser will feel protected and will continue with different women. The Catholic Church had similar issues for decades, transferring priests accused of sexually molesting boys between different churches while praying that the offending priests would stop if they were moved away from the initial victims.

Another big factor in corporate sexual harassment is failure to publically highlight the issue. Allegations of sexual abuse are often embarrassing for the abuser, the abusee, and the company at large. However, if the company fails to educate its employees about sexual harassment, even if employees know or suspect sexual abuse is occurring, the company will be promoting the behavior. Corporate managers might not condone sexual abuse, but failure to speak up will be read as implicit approval of the harasser’s behavior.

Ditch the Arbitration System

Fox News favors arbitration boards to settle complaints, including them in every employment contract. Although arbitration is a legal way of resolving disputes, companies relying on arbitration to address sexual harassment should use Fox News as a model of how everything can go wrong. Arbitration is best described as an informal trial. Instead of a judge, an arbitrator decides the case. Arbitration usually doesn’t follow the rules of evidence, allowing the arbitrator to make decisions faster and at a cheaper cost than a judge would.

Although arbitration is a reasonable way to settle many business disputes, sexual harassment is not the best issue for arbitration to address. In a normal trial, both parties are assured that the judge will remain objective and will consider the arguments presented by both sides. With arbitration, the arbitrator is often selected by the company itself. Even if the arbitrator is truly objective, employees making serious allegations may not trust the arbitrator to be impartial.

More importantly, arbitrations are not subject to the same rules of evidence. Corporations might favor arbitration as a cheaper alternative, but there is an important rule of evidence that makes trial more equitable for the accuser. In a normal trial, the defendant is not allowed to introduce evidence of the victim’s own impropriety as a defense.  In other words, just because Jane sleeps around with different men doesn’t mean that she welcomes John’s sexual advances. Throwing out this rule of evidence only serves to make arbitration another potential avenue to harass the victim. Even worse, arbitration is binding and appeals are rarely granted, so any decision that the arbitrator makes will be binding.

Arbitration is obviously flawed from the employee’s view, but these downsides also affect the employer. Arbitration can manage a few isolated cases, but if the floodgates open, as they are opening now for Fox News, the outpour will be more than Human Resource and in house counsel can manage. The problem with relying on a system that overwhelming favors one party is that when the other parties no longer have faith in the system, that system will collapse.

Fox News has avoided its sexual harassment claims for decades, but the built up has now destroyed the dam.  Hopefully a change in corporate culture can built a more stable foundation.

Voter Fraud Investigation: No Injunction to Stop Data Gathering

In the wake of our most recent election, both sides of the political aisle have been consistently calling foul on the election process itself. On one side, the potential of Russian influence on the election has cast a shadow over the Trump administration. On the other side, Trump himself has repeatedly made unsupported allegations of rampant voter fraud since well before he was even elected. During the election, he claimed there would be millions of illegal votes cast and called upon supporters to act as “poll watchers“–a practice that ended up flirting with violating federal voter intimidation laws.

Since President Trump’s election, he has not changed his tune on the existence of voter fraud in the least. In fact, he has doubled down on the claims by using an executive order to create a Presidential Advisory Commission on Election Integrity to investigate his claims. While Trump has not backed down from his claims, the facts certainly don’t seem to support the rampant voter fraud he describes. In the last 14 years, studies have shown about 241 cases of fraud out of around a billion votes cast. This translates into around .000024% of votes.

What is the Latest in Voter Fraud Claims?

Regardless of these statistics, Trump’s Voter Fraud has taken its role extremely seriously-controversially so. In a recent example of this, the Commission sent out a letter demanding voter roll information from every state in the U.S. This was no small ask. The request would have required turning over the name, partial social security number, address, date of birth, political party affiliation, and–this one’s the kicker–the last ten years of voting history of basically everybody who’s ever voted in this country. To say that turning over this information has the potential for abuse is more than an understatement. The same letter requesting the information said that the documents provided to the commission may eventually be made public, adding another layer to the controversy. As of now, around 20 states have already flatly refused the request. Even Kansas, the home state of the Vice-Chair (and defacto head) of the Voter Fraud Commission Kris Kobach, has only agreed to partially comply with the extreme request. 44 states are going to be withholding at least some of the requested information.

Kris Kobach himself is another part of the controversy surrounding the Commission. As the Secretary of State of Kansas he is well known as an outspoken believer in the voter fraud claims of Mr. Trump. He also has a bit of a checkered history when it comes to voter fraud. Just last month a federal judge fined him $1,000 for “presenting misleading arguments in a voting-related fraud.” He has also pushed through very strict voting laws; laws which have been accused by some of intentionally diminishing minority voting rights.

Voter FraudThis same issue, the potential to suppress minority voters, is a criticism Mr. Kobach’s Commission has also been accused of. There have been a number of lawsuits from groups such as the NAACP and the ACLU accusing the Commission of using “unfounded allegations of voter fraud” to target the voting rights of Black and Latino voters. One of their complaints specifically alleged that “the creation of the Commission, and its pending investigation into allegations of voter fraud, were motivated by racial discrimination against voters of color.”

Earlier this month however, in a suit brought by Lawyers’ Committee for Civil Rights Under Law (LCCRUL), these lawsuits took their first big loss. LCCRUL’s lawsuit ultimately seeks to shut down the operations of the Commission altogether as well as force them to return all information they had gathered, and destroy all copies of that information. However, this sort of a lawsuit takes time. For now, they had filed a motion attempting to require the Voter Fraud Commission to hold an open meeting and disclose records about the goings on and goals of the Commission. A Federal Judge shot the request down.

The FACA and Preliminary Injunctions

The essential elements of the claim against the Voter Fraud Commission revolved around two things: a fairly obscure law known as the Federal Advisory Committee Act (FACA) and the special nature of a motion seeking a preliminary injunction (a ruling forcing a party to do or not do something before the case is actually litigated.)

The FACA essentially is a set of transparency requirements on advisory committees such as the one under Mr. Kobach. It requires public charters before holding meetings, timely notice of those meetings to the Federal Register so their times can be published, hold meetings open to the public, keep minutes for those meetings, and allow those who want t to attend or file statements with the committee. FACA also requires much of the paperwork and documents generated by such committees be available to the public for viewing and copying. Finally, the law requires advisory committees to be fair and balanced–not overly influenced by an the person who made it, a special interest, or any particular point of view.

LCCRUL was essentially arguing that the Voter Fraud Commission wasn’t holding sufficiently transparent meetings or making it’s records properly available to the public. Unfortunately for them, this simply does not seem to be the case. The Commission filed a charter, noticed their meetings with the Federal Register, and made the meetings available to the public through live streaming on the internet. On the other hand, they didn’t give an opportunity for people to speak or comment on their first meeting–simply promising to do so in the future. They also have failed to respond to requests from the public to look into documents regarding their goals and methods.

You can see, there’s mixed facts here when it comes to the FACA–and that’s what did this preliminary injunction in. In order to succeed in making a court tell a party to do or not something before fully proving your case you understandably need to show that you’re more likely than not going to win if you were to take the issue to court. If we didn’t have such a high standard, preliminary injunctions would be particularly vulnerable to abuse. The truth is there are facts here that could support an argument that the Voter Fraud Commission has not lived up to its FACA obligations. However, the case is far from strong enough to reach the likelihood of success required for this sort of motion–it’s no surprise the court refused to take such drastic action.

The Future of the Voter Fraud Commission

So, you may be asking if this is the beginning of the end for the efforts taken to curtail the actions of the Voter Fraud Commission. However, the fact that the high standards of a preliminary injunction were a bridge too far in this particular case doesn’t make it a death knell for the many lawsuits brought against the Commission. Even in this ruling, the court noted several times how controversial the Commission is. The judge especially noted the sheer amount of information the Commission seeks to gather on voting history.

What’s more, the ruling here was made without prejudice. This means that, while the facts here weren’t enough when the court considered how much harm might be done by not opening this meeting to the public, if the facts change the issue may be revisited. There is a lot of ground left to cover in this lawsuit and in the several other like it. After all, the motion has preliminary right in the name.

Medical Marijuana Use by Off-Duty Employees with Disabilities are Now Protected in Massachusetts

As marijuana has become legalized in more and more areas and manners, more and more rulings have come out saying that this still doesn’t mean an employer can’t fire you for using marijuana. We’ve talked at length about this phenomenon and what it means for you in the past-in fact we’ve dealt with the overruled lower court’s approach to this very same case. The trend in rulings, allowing employers to punish medically prescribe, legalized, behavior done when not at duty for work is a bit of an odd trend. You can imagine the uproar if courts took a similar approach to off-duty drinking of alcohol which doesn’t impact on-duty performance-never mind off-duty use of a prescribed medication.

However, just this last week the Massachusetts Supreme Court has taken a huge step as far as protecting Massachusetts employees based on medical marijuana use. They ruled it was handicap discrimination to fire a woman for using medical marijuana to combat low appetite resulting from Crohn’s disease. Let’s take a look at the facts in this legal first and what exactly the ruling means for the rights of Massachusetts employees and in a broader context.

medical marijuanaThe Firing of Ms. Barbuto

The case deals with one Ms. Cristina Barbuto, a women suffering from Crohn’s disease-an incurable ailment affecting the lining of the digestive tract . Crohn’s causes extreme intestinal discomfort, weight loss, fatigue, and other painful symptoms. As a result of her Crohn’s, Ms. Barbuto had serious appetite issues-losing dangerous levels of weight. She was eventually prescribed medical marijuana for her appetite and was able to once again reach a healthy weight.

Ms. Barbuto was offered a job with a company called Advantage Sales Marketing (ASM). The caveat to this job offer was that she needed to get and pass a drug test. Ms. Barbuto told them she was a legally prescribed medical marijuana patient and that the test would come back positive. She explained the details of her Crohn’s and also told them that her marijuana use was not daily, nor would she use it before or at work. Her typical use was low doses in the evening to improve her appetite before dinner.

The person from ASM told Ms. Barbuto that her marijuana use was unlikely to be an issue but that she would check and follow-up. After follow-up, the same person from ASM confirmed it wouldn’t be an issue.

Ms. Barbuto reported to her first day of work, worked a day without incident, then was contacted by HR and fired her for failing her drug test. When she mentioned she was legally prescribed the medical marijuana she was told that ASM “follow[s] federal law, not state law.” She then sued ASM for handicap discrimination.

The Ruling of the Court

Under Massachusetts law, and in general, it is illegal to fire or refuse to hire a handicapped person because of that handicap so long as they can perform the essential functions of the job in question if the employer makes reasonable accommodations for their handicap. A reasonable accommodation is basically any accommodation that does not cause undue hardship to the employer-usually by being extraordinarily expensive or difficult to accomplish. Once somebody establishes that they have a valid handicap it’s on the employer to prove that accommodations would be unduly difficult.

Under Massachusetts law, Crohn’s disease is explicitly included as a dehabilitating medical condition qualifying one for medical marijuana use. Thus, the Massachusetts Supreme Court felt it was pretty clear that Ms. Barbuto had a valid handicap.

ASM argued that a reasonable accommodation can’t exist because marijuana use of any type is a federal crime. This is a stance that has been successful in a number of states including California and Colorado. However, the Massachusetts Supreme Court felt that even if their drug policy forbids marijuana, ASM had to at least help the handicapped employee find an equally effective medical alternative. This process is a mandatory part of making reasonable accommodations for a Massachusetts employer. Where no equally effective alternative exists, the employer has to prove that the use of the forbidden medication-in this case marijuana-would cause them undue hardship before they can ban the medicine without committing handicap discrimination.

ASM’s argument essentially boiled down to saying federally illegal means the accommodation must be unreasonable and they don’t need to find alternatives. This most recent ruling reversed lower rulings and said no on both counts. The act legalizing medical marijuana in Massachusetts specifically says that patients can’t be denied any right or privilege due to the nature of their medicine. While the act doesn’t require accommodation of using marijuana on the job, partially because federal law specifically punishes businesses which allow drug use during work hours, this wasn’t an issue here as all use was done off-duty.  What’s more, the Court here ruled that the existence of a restriction on on-duty use implicitly allowed for off-duty use.

The Rulings Impact and the Larger Context

The Massachusetts Supreme Court has reversed the lower court and provided protection for off-duty use by employees legally prescribed medical marijuana. However, it’s important to note how specific the ruling is. Any use on-duty is clearly not protected and it is even arguable that if an employer offers to help find alternative medication they are still free to ban medical marijuana outright. Recreational marijuana use is obviously still completely unprotected, legalized or not and off-duty or not.

The ruling bucks the trend towards non-protection, but Massachusetts isn’t the first state to take steps towards protecting medical marijuana use by employees. Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, and Nevada all protect such use to at least some degree-requiring employers to accommodate use. As marijuana legalization continues to spread at the state level-the Massachusetts Supreme Court noted in their ruling that almost 90% of states have legalized medical marijuana at this point-this tension will continue to grow. If marijuana becomes as commonly legalized as alcohol, questions will certainly start to arise over whether an employer would be able to regulate an employee’s off-duty drinking. The law around marijuana is frankly incredibly unstable as long as it remains federally illegal. For now, the laws will have to keep evolving as a patchwork of inconsistent state law.

Discrimination Protections are Reduced After Missouri Signs Bill to Protect Businesses

Missouri is rolling back employment discrimination protections to protect businesses from frivolous lawsuits. At least, that’s the rationale Governor Eric Greitens would have everyone believe. The new law, SB 43, will go into effect beginning April 28 of next year. Previously, employees in Missouri only had to show that discrimination was one factor in their demotion or dismissal to bring a suit. Under the new law, employees must show that discrimination was “the motivating factor” or primary cause of their demotion or termination. Additionally, the bill would cap the amount of damages that an employee could receive and would restrict such suits to businesses. Employees would not be able to sue individuals, such as their supervisors, for discrimination. The bill applies the same restrictions to housing and public accommodations.

discrimination protectionsThe bill is extremely controversial in Missouri, in part because the sponsor of the bill, State Senator Gary Romine, owns a business that is being sued for alleged discrimination.  The employee in Romine’s case alleges that his supervisor calls him “nigger” and that there is a map in the back of the store circling a black neighborhood with the words “do not rent” underneath. Romine denies any wrongdoing in the case and insists that his bill was aimed at frivolous lawsuits without any consideration for the case pending against his company. Nevertheless, the NAACP and other critics accuse Romine of self-dealing while sponsoring and passing the bill.

The Downfall of Mixed-Motive Cases?

As promised, these restrictions will doom many employment discrimination suits. In an at-will employment position, an employer can fire a worker for any reason except for reasons that are prohibited by law. However, it’s rare today for employers to admit to terminating an employee purely for illegal reasons. Instead, the suits often involve cases where the employer dismisses an employee for a mix of legal and illegal reasons. For instance, if a woman is denied a promotion because her performance review says “she berates the staff” and that she “overcompensates for being a woman,” she might have an actionable suit based on the latter comment. However, the former comment would be a justifiable reason for the business to deny her a promotion.

Under federal law, an employer that has both legitimate reasons and illegitimate reasons will be liable for discrimination. If the employer can prove that it would have treated the employee the same without the illegitimate reasons though, reinstatement, back pay, and future pay will be denied to the employee. States have taken different positions on mixed motive discrimination. Many states have adopted the federal model. Other states permit the employee to prevail even he or she can show that an illegal reason exists, regardless of whether there were other legitimate reasons.

The Future of Missouri Businesses

Missouri has changed from a “no impressible motive whatsoever” position to a legal regime where discrimination must be the “dominating factor.” In other words, for Missouri employees to prevail now, it is not enough to show that the employer was discriminatory. If the employer might have had other reasons for dismissing or denying a promotion, the employee must show that discrimination was the most significant reason for loss of employment or promotion. Previously, the woman who sued for losing her promotion to comments that she “berates the staff” and that she “overcompensates for being a woman,” would have won because the second comment was proof of discrimination. Under the new Missouri law, it is not enough that the second comment exists. Instead, the second comment must be the #1 reason the woman lost her promotion.

Although this structure will undoubtedly force many employees out of the Missouri courthouse, the dominate motive structure is not an unusual one. Even states as liberal as California use the dominate motive instead of the mix motive framework to balance the fight between employers and employees. Instead, the most egregious aspect of SB 43 is that it caps damages. If a state forces a plaintiff to jump through hoops, like establishing dominate motive, it seems overly cruel to limit the damages that a plaintiff can obtain if the plaintiff wins. Employment lawsuits can be long and draining as they are. Missouri has doubled the time, expense, and difficulty for employees to collect a judgment, but it has reduced the amount of money that the employee gets even if the employee does everything correctly. It adds insult to injury if an employee can claim she was discriminated, but gets less for it.

Trademark Lawsuit for Juicy Fruit e-Cigarette

Juicy Fruit may not be the gum with the longest lasting flavor but, say what you will, their yellow packaging is immediately recognizable. The same is true of the green packaging on Doublemint, it’s just as easy to pick out in the checkout line in the grocery store. This is the product of around 100 years of marketing on the part of Wrigley Gum. Thus, when Chi-Town Vapors (a company dedicated to creating flavored e-cigarette fluid) decided to make e-cigarette flavors titled “Juicy Fruit” and “Doublemint” Wrigley decided to slap them with a lawsuit that Chi-Town is going to have a heck of a time wriggling out of.

Just last week, Wrigley brought a lawsuit alleging federal claims of trademark infringement, trademark dilution, and unfair competition, as well as an Illinois state law claim of deceptive trade practices, and a common law claim of unfair competition. Wrigley’s claims are strong in this case, mostly because of how Chi-Town Vapors has conducted their marketing and the nature of Chi-Town Vapor’s business. Especially strong are the claims of trademark infringement and trademark dilution. Chi-Town’s missteps are a good lesson for burgeoning businesses, especially when your product can-like Chi-Town’s-be especially vulnerable to dilution claims. In order to help keep your business’ safe, let’s take a look at this case, how it’s likely to shake out, and how trademark infringement and trademark dilution work.

trademark lawsuitChewing Over the Facts of the Case

Wrigley is an old company. A very old company. They’ve been selling Doublemint and Juicy Fruit gum for over a century. They’ve had a number of trademarks on “Juicy Fruit” and its associated logos for ages. Some registered as long ago as 1915, others issued a mere 60 years ago in 1953. It has similar trademark and trade dress (protection on the appearance of the packaging or building design consistently used by a company) on their Doublemint gum.

With all these age old registrations, you have to know it was a bad idea for Chi-Town Vapors to outright name the flavored e-cigarette liquid they sell “Juicy Fruit” and “Doublemint.” Chi-Town didn’t stop there, and their legal problems may not stop with Wrigley. They named flavors “Skittles,” “Hawaiian Punch”, “Kahlua,” “Mountain Dew,” “Red Bull,” and “Nutella.” All of these are registered marks and, no, Chi-Town didn’t get permission to use any of them. In a prime example of digging your own legal grave, Chi-Town Vapors’ marketing materials even included pictures of the products the flavors are based on or have their own name on incredibly close approximations of  the packaging of products such as Doublemint gum.

They must have caught wise to the fact that this wasn’t the best idea because, in January 2017, they took down these pictures and changed the names to things like “Joosy Froot;” still using the recognizable packaging of the candy as part of their marketing materials. Unfortunately for them, this is still extremely unlikely to be enough to get them off the hook.

Bursting Chi-Town’s Bubble: Trademark Infringement and Dilution

Trademark infringement mostly deals with the likelihood that the use of your registered trademark by another may confuse consumers as to the source or sponsorship of goods or services. For instance, if you have a trademark on Widget brand milk, and the guy across the street starts selling Widget brand almond milk, that would be a pretty clear-cut case of trademark infringement. This is especially true due to how close the other store is and how similar their product is.

Chi-Town used the exact name and packaging of both Juicy Fruit and Doublemint on a product designed to taste as identical to each respective gum as possible. There is serious potential that a customer would look at those flavors and think they were sponsored by Wrigley-thus why Chi-Town is in so much trouble.

However, as rough as the case may be for trademark infringement. Chi-Town Vapors has it worse when it comes to dilution. Dilution doesn’t need to show any confusion from consumers or even competition between the owner of the famous mark and the accused party’s product. Instead the owner simply needs to show blurring (that there is a likelihood of dilution in the consumer’s mind between the mark and their product) or tarnishment (a likelihood that association with the accused person’s use of the mark would damage the reputation of the owner’s mark). In order to receive this incredibly powerful protection, you need to be especially famous. However, with factors including how well known and how long the mark has been used as part of that analysis the 100-year-old and near universally recognizable Wrigley brands should qualify fairly easily.

It is the second half of dilution-tarnishment-which is the real trouble for an e-cigarette fluid distributor. Even in Wrigley’s complaint, it’s clear that they are leaning heavily on this argument to establish their dilution case. Not surprisingly, Wrigley has something to say about the practice of selling candy-flavored cigarettes. They point to studies out of the FDA, the Senate, and more which argue that flavoring e-cigarette materials like candy “harmfully targets children under 18 years of age.” To say that selling cigarettes to children has the potential to tarnish Wrigley’s brand is an understatement.

What Can You do to Avoid Chi-Town Vapor’s Sticky Situation?

As bad as the situation is for Chi-Town Vapors, and it does look bad, no case is a guaranteed slam-dunk. However, the best litigation strategy a company can take is to never face litigation at all. This isn’t always possible, but you can take steps in your branding to avoid Chi-Town Vapor’s situation.

First and foremost, don’t use famous brand names on your products without permission. This is obvious, but it bears repeating. If your business deals with something that might harm the reputation of a brand, liquor or tobacco for example, you have to be especially careful. This goes double when a famous brand targets children as customers. Another important step to take is to hire an attorney to do a trademark search for any logos or marketing slogans you want to use. This is generally fairly cheap and goes a long way towards avoiding a trademark infringement lawsuit. Your business is too important to risk a lawsuit or the expense of having to entirely change your branding after working to build it up-take the steps to make sure you don’t end up in Chi-Town Vapor’s situation.