Virginia Code Section 40.1-28.01 was passed in 2019 to prohibit any provision in a nondisclosure or confidentiality agreement that has the purpose of concealing the details of a sexual assault. The new section is not retroactive, but it does ensure that employers will not be able to rely upon non-disclosure agreements to conceal sexual assaults occurring in the workplace. At present, the language is narrowly drafted to cover current and prospective employees only. Accordingly, confidentiality agreements executed by former employees in consideration for severance or settlement payments may not be covered by the statutory protection.
Category Archives: Sexual Harassment
Can False Rumors Serve as the Basis for Claims of Sexual Harassment?
In Parker v. Reema Consulting, the Fourth Circuit addresses a claim where a female subordinate alleges that she was subjected of repeated rumors of sleeping with her supervisor to secure a promotion. Importantly, company managers participated in the spreading of the rumors. To state a claim under Title VII for a hostile work environment because of sex, the plaintiff must allege workplace harassment that (1) was “unwelcome”; (2) was based on the employee’s sex; (3) was “sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere”; and (4) was, on some basis, imputable to the employer.
In this case, The Fourth Circuit agrees that these sex based rumors can serve as the basis for a hostile environment claim and that the continuous nature of the harassment was sufficiently pervasive as to interfere in her work.
Supreme Court Clarifies Standard for Supervisor Liability in Harassment Cases
Under Title VII, an employer may be liable for the workplace harassment of employees that is based on sex, race, religion or national origin. The standard for liability often begins with the employment position of the alleged harasser. When the harasser is a co-worker, a plaintiff must show that the company had knowledge of continuous and pervasive harassing behavior and failed to take remedial action. Additionally, an employer can defend a claim by proving that an employee failed to utilize available corrective measures such as an internal HR complaint procedure.
However, when the alleged harasser is a supervisor, the standard for liability changes if the supervisor takes a tangible, adverse action against an employee. In such cases, an employer may be vicariously liable for the conduct of its supervisors. In Vance v. Ball St. University (April 2013), the U.S. Supreme Court provides clarification regarding the very definition of a supervisor under Title VII. In a 5-4 decision, Vance holds that an employee is a supervisor “if he or she is empowered by the employer to take tangible employment actions against the victim, i.e., to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Inversely stated, a supervisor is not someone who merely has some nebulous authority to instruct or direct another person in the performance of their duties.