Is Protecting the Rights of Working Women Becoming Mainstream?

By John Beranbaum and Isabelle Kern

In terms of women’s rights, 2022 certainly will be remembered as the year the U.S. Supreme Court, in Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022), overturned the nearly 50-year old precedent, Roe v. Wade (1973), guaranteeing a woman’s constitutional right to abortion. Yet, paradoxically, last year Congress enacted four bills that significantly advance the rights of women in the workforce.  A number of states already had in place similar or more protections, so it may be fair to call Congress a Johnny-come-lately. Nonetheless, the fact that both parties in Congress came together to pass these laws on behalf of female workers suggests that protecting women’s employment rights has become, if anything, mainstream.  The following is a brief description of the four 2022 federal laws:

The Speak Out Act

As an example of bipartisanship, the Senate unanimously passed the “Speak Out Act,” which became public law on December 7, 2022. Introduced by Senator Kirsten Gillibrand (D-NY) in July 2022, this new law prohibits the use of pre-dispute nondisclosure agreements (NDAs) between employers and current, former and prospective employees. The provisions of the Act also extend to independent contractors and NDAs between businesses and customers.

“Dispute” is defined broadly in the Act. A dispute could include a lawsuit, charges filed with an administrative agency, such as the Equal Employment Opportunity Commission (EEOC), or having an attorney send a demand letter. This means that if a settlement agreement includes an NDA that bars the employee from discussing the case with anyone else, that provision would be enforceable.

The Act is a good step in the right direction for women’s rights as it will change the culture of the general workplace, leading to safer and more productive environments. It will give employees and consumers the opportunity to potentially warn other job applicants and consumers about work environments that tolerate abuse and harassment.

Individual states always have the option of extending state laws beyond a federal one. Some states already have their own versions of the Act in place, which are more expansive and include, for example, other workplace issues in addition to sexual harassment or assault. Some of these states include New Jersey, New York, Washington State and California.

In 2019, New York State enacted legislation that renders any provision in an agreement between an employee or potential employee that prevents disclosure of factual information related to discrimination void and unenforceable, unless the provision provides that it does not prohibit the employee from speaking with law enforcement, the EEOC, a state or local commission on human rights, or an attorney. Additionally, New York State enacted another law in 2019 that limits NDAs in settlements relating to all discrimination claims. Complainants may enter into an NDA, if they so choose, and the complainant has twenty-one days to consider such term or condition. If the provision is the complainant’s preference, it shall be memorialized in agreement signed by all parties. Following the execution of such agreement, the complainant has seven days to revoke it.

To learn more about this New York State law, please read this article in the New York Law Journal, written by our very own attorneys Alice Jump and Ethan Krasnoo.

The Pregnancy Workers Fairness Act

The Pregnancy Workers Fairness Act (PWFA), introduced by Representative Jerrod Nadler (D-NY-10) in February 2021, prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, child birth, or related medical conditions. It declares that it is unlawful to:

• fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose undue hardship on an entity’s business operation;
• require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
• deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
• require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
• take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

Covered employers under this Act include private and public sector employers with at least 15 employees. This also extends to Congress, federal agencies, employment agencies, and labor organizations. Possible reasonable accommodations may include receiving closer parking, having flexible hours, receiving appropriately sized uniforms and safety apparel, receiving additional break time, and leave or time off to recover from child birth.

The PWFA will go into effect on June 27, 2023, and the EEOC is required to issue regulations to carry out this new law. Before then, the EEOC will issue a proposed version of the PFWA regulations for public input and comments before it becomes final. The charges covered under the Act must have happened on June 27, 2023 or later. Until then, pregnancy-related discrimination should still be reported to the EEOC.

The Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act

The PUMP for Nursing Mothers Act was signed into law in December 2022, making several important expansions to the previous Break Time for Nursing Mothers law of 2010. It is also the first standalone breastfeeding bill to receive a recorded vote on the Senate and House floors. This new piece of legislation:

• provides the right to break time and space to pump breast milk at work;
• makes it possible for workers to seek monetary remedies in the case that their employers fail to comply; and
• clarifies that pumping time must be paid if an employee is not relieved from duty.

Although the legislation went into effect immediately, the enforcement provision included a 120-day delay, making the effective date for that provision April 28, 2023. The law is a victorious win for the health of babies and mothers across the country. The World Health Organization (WHO) and other global healthcare representatives note that breastfeeding helps babies gain protection from various illnesses and helps prevent certain cancers and postpartum depression in mothers.

Ending Forced Arbitration of Sexual Assault and Harassment Act

In March 2022, President Joseph Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, restricting employers from forcing workplace sexual harassment or assault claims into arbitration. It had become commonplace for employers to make their employees sign arbitration agreements that barred them from going to court to press their claims, including sexual harassment and discrimination claims. Instead, employees had to bring their claims before a private arbitrator in a confidential proceeding. Exposed by the #MeToo movement, mandatory arbitration allowed employers and sexual harassers to cover up the discrimination or harassment, enabling the repeated abuse of employees. See, e.g., Harvey Weinstein.

The Ending Forced Arbitration Act amended the Federal Arbitration Act (FAA) to provide that “no pre-dispute arbitration agreement or pre-dispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under federal, state, or tribal law and relates to the sexual assault dispute or the sexual harassment dispute.” A “pre-dispute arbitration agreement” means an agreement to arbitrate signed into before the sexual misconduct occurred.

In 2018, New York State passed its own law invalidating any provision in an employment environment requiring the arbitration of sexual harassment claims, and the following year amended the law to bar the mandatory arbitration of any type of employment discrimination.  N.Y. C.P.L.R. § 7515. However, courts uniformly held that New York’s ban on forced arbitration was null and void because it conflicted with the FAA. However, with the Ending Forced Arbitration Act’s amendment of the FAA, N.Y. C.P.L.R. § 7515 is now effective, at least as applied to sexual harassment claims. But until Congress expands the scope of the Ending Forced Arbitration Act, employers may still force their employees to agree to the mandatory arbitration of all other employment discrimination claims.

Conclusion

While it is highly commendable that Congress has enacted these important measures advancing the rights of women in the workplace, we hope the statutes are just a first step in the greater protection of employees of all races, ages, disability status, and other vulnerable groups.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Attorney John A. Beranbaum who counsels clients on employment law, litigation, arbitration, negotiation, and trial advocacy. Mr. Beranbaum is admitted to practice law in New York and New Jersey and before the U.S. Supreme Court, U.S. Court of Appeals from the Second and Third Circuits, U.S. District Court for Southern and Eastern Districts of New York, District of New Jersey, Eastern District of Pennsylvania and the Northern District of Florida.