Judicial Decisions

ELECTION SECURITY

A U.S. federal judge ruled that Georgia must switch from electronic to paper ballots for the 2020 elections if security vulnerabilities remain unaddressed.

After various serious flaws with the state’s current ballot technology were revealed, a U.S. district court judge ordered officials to stop using electronic touchscreen voting machines by the end of 2019. However, the state successfully argued that switching paper ballots prior to 2020 would be too disruptive to municipal elections scheduled for November 2019.

The new system will be based on ballot-marking machines, which Georgia plans to set up and roll out in time for the next presidential primary election in March. If Georgia is unable to switch to the ballot-marking machines by 2020, voters will instead cast their votes by using paper ballots, according to the U.S. District Court.

The current touchscreen machines and back-office software were outdated and had several security vulnerabilities. One security gap would allow for enterprising hackers to deliver malware through a virus, initially introduced on a memory card, which could then spread to other ballot machines.

Another security issue tied to the current machines was discovered in 2016 when a researcher discovered that Kennesaw State University’s Center for Election Systems, which is contracted to help the state manage its elections, had made documents—ones that included passwords and private voter information—publicly available and downloadable. This breach ultimately took months to resolve. (Donna Curling, et al., v. Brad Raffensperger, et al., U.S. District Court for the Northern District of Georgia Atlanta Division, No. 1:17-CV-2989-AT, 2019.)

SEXUAL HARASSMENT

Dartmouth College settled a sexual harassment suit with former and current graduate and undergraduate students for $14 million.

In the lawsuit, which was filed in 2017, nine former and current students claimed they were harassed and assaulted by three former neuroscience professors: Todd Heatherton, Paul Whalen, and Bill Kelley. All three professors either retired or resigned in 2018 after the college threatened to revoke their tenures over the suit. They were also eventually banned from the college campus.

The lawsuit alleged the women were subjected to a modern-day “Animal House” environment in the university’s psychology and brain sciences department. The suit claimed the professors—men who were capable of either advancing or stifling the women’s scientific and academic careers—hosted drinking and hot-tub parties with the women, sexually assaulted graduate students, and publicly argued over which was the “hottest lab.”

Dartmouth College, based in New Hampshire, also agreed to address previous issues and environment by implementing changes to the school’s policies and in other areas, including ones that prevented female professors from achieving tenure.

According to The Washington Post, although Dartmouth did not admit to any illegal behavior, the college began and intends to continue expanding programs that will deal with sexual harassment and other misconduct stemming from power dynamics between professors and students. (Kristina Rapuano, et al. v. Trustees of Dartmouth College. U.S. District Court for the District of New Hampshire, No. 1:18-cv-01070, 2019)

Legislation

United States

DISCRIMINATORY HARASSMENT

New York amended the state’s Human Rights Law, expanding protections for members of all protected classes and making it easier to prove discriminatory harassment.

Under the amended law, protected classes include age, color, creed, domestic violence victim status, familial status, gender identity or expression, marital status, military status, national origin, predisposing genetic characteristic, race, sex, and sexual orientation. The change also offers additional protections for employees and independent contractors who were subjected to sexual harassment.

Effective 11 October 2019, the updated law no longer requires a harassment victim to provide another person who can offer a comparison of their work experiences. The absence of a formal complaint from an alleged victim cannot be used as the alleged harasser’s defense.

Before the changes were approved, the state required the same standards as the federal government, “severe or pervasive harassment.” To meet this bar, conduct that was not extreme enough to constitute an objectively abusive or hostile employer or work environment was not considered unlawful or actionable. With the changed legislation, any behavior above minor slights or inconveniences could be considered harassment.

Victims of sexual harassment will also have an expanded window of time to file a complaint with the State Division of Human Rights, now three years instead of one.

Regulations

Iran

SEXUAL HARASSMENT

The country’s Information Technology Organization, a department within the Ministry of Information and Communications Technology, is the first Iranian agency to publish guidelines banning harassment, sexual harassment, discrimination, and abuses of power.

The rules against harassment—which include, but are not limited to, physical and verbal threats, threatening behavior, intimidation, and defamation—were launched by the organization’s head of women’s affairs, Meshkat Asadi. Discrimination was described in the guidelines as unjust, inequal, or even unpleasant action against someone that is motivated by race, age, nationality, gender, religion, or political beliefs; abuses of power include any misuse of a position of authority that adversely impacts someone’s career.

Under the guidelines, complaints will be resolved using a third-party arbiter to reach a mutual agreement. If the matter cannot be settled through the arbitration process, plaintiffs may file a formal complaint within 90 days of the most recent incident of alleged harassment.

According to an Al Jazeera article, the guidelines were based on similar rules in other countries, as well as with Islamic and Iranian values in mind. Through Twitter, the head of the organization, Amir Nazemi, sought the support of CEOs for Iran’s major startups and financial technology companies. So far, Snapp, Tap30, Takhfifan, and ArvanCloud have adopted the guidelines.

Lesotho

GENDER-BASED VIOLENCE

After an investigation into sexual harassment and coercion of women working at Lesotho garment factories producing jeans, American brands and factory owners signed enforceable agreements with labor and women’s rights groups.

Managers at three Maseru, Lesotho, factories owned by Taiwainese company Nien Hsing Textile Co., Ltd., forced female employees to have sex with them to keep their jobs or advance their careers. Along with the three sites, Nien Hsing also runs a textile mill and another facility. Nien Hsing’s factories supply the denim products to clothing chains, including Levi Strauss & Co., The Children’s Place, and Kontoor Brands.

After a two-year investigation into the incidents, the U.S.-based Worker Rights Consortium published its findings, which also determined that management did not act against the offending managers, and it did not enable employees to raise their shared concerns by denying union representation. Workers also feared retaliation if caught engaging with a union, and a worker told investigators that supervisors would subsequently create a difficult work environment for employees caught associating with a union.

The assessment detailed that “the abuses were extensive,” and violated employees’ rights under the country’s labor laws, as well as international standards and the codes of conduct for Levi, The Children’s Place, and Kontoor. Besides forcing several employees into sexual relationships, managers and supervisors also conditioned “the maintenance of employment contracts and/or provision of more favorable working conditions on a female worker’s willingness to engage in such a relationship. Women workers faced sexual harassment from both managers and co-workers, and management often failed to take disciplinary action against offenders. This tolerance of harassment by Nien Hsing created a culture of acceptance of (gender-based violence and harassment) in the factories and a fear of reporting among women workers.”

According to Bloomberg, after the assessment, the clothing companies agreed to begin a pilot program that would combat gender-based violence and harassment at Nien Hsing’s Lesotho factories. Largely funded by the clothiers, the program will run for two years.

As part of the worker-protection agreement, Nien Hsing ordered its managers to refrain from retaliating against workers that file complaints alleging such harassment or coercion, as well as granting unions access to the factories and representation rights on behalf of the employees. If Nien Hsing violates the agreement, the three clothing companies are expected to reduce production orders until the supplier again satisfies the terms. “These commitments and measures are adequate, assuming they are honored over time, to address the violations identified,” the assessment said.

Elsewhere in the Courts

ARBITRATION 

A Washington court opposed an amended state law prohibiting employers from demanding employees agree to arbitration or other confidential dispute resolution processes in relation to claims dealing with discrimination, hostile work environments, and/or retaliation. A court judge ruled that the legislation is preempted by the Federal Arbitration Act (FAA). A former employee of Lithia Motors, who signed an arbitration agreement, brought discrimination and other claims against the company after the employment ended. The court determined that all but one of the employee’s claims should proceed in arbitration given that the amended law’s exclusions under the new Washington Law Against Discrimination were trumped by U.S. federal law. (Logan v. Lithia Motors, et al., King County Superior Court, No. 18-2-19068-1 SEA, 2019)

BID RIGGING

Oracle Corp. filed an appeal in its continuing challenge to the U.S. Department of Defense’s decision to only use one vendor for its 10-year, $10 billion Joint Enterprise Defense Infrastructure (JEDI) contract, a mega-cloud project. On 12 July, a federal judge rejected Oracle’s claims of a conflict of interest and unfair demands, instead ruling that the company did not have grounds to protest the Defense Department’s decision since it was unable to meet the JEDI contract’s requirements, otherwise known as gate criteria. (Oracle America, Inc., v. The United States and Amazon Web Services, Inc., U.S. Court of Federal Claims, No. 18-1880C, 2019)

BACKGROUND CHECKS

A U.S. court of appeals ruled that the Equal Employment Opportunity Commission lacks the authority to require employers to include job-related assessments on candidates’ criminal histories during the background check. One year after the commission issued enforcement guidelines—meant to address the skewed impact of hiring minorities with criminal backgrounds by instituting an individualized assessment, effectively saying that such checks might be unlawful in certain circumstances—the state of Texas sued the commission. Texas claimed the guidelines’ direction on the use of criminal records in this manner was illegal. The state also alleged the commission could not enforce the guidelines and that, in certain instances, Texas could deny hiring candidates who had committed felonies. (State of Texas v. Equal Employment Opportunity Commission, U.S. Court of Appeals for the Fifth Circuit, No. 18-10638, 2019)