"Making a mountain out of a molehill."

That's what TransDigm's then-CEO allegedly told its general counsel when she raised a pattern of sexual assault and harassment at the company's management meetings. An Ohio appellate court just sent her entire case to a courtroom instead of an arbitrator.

She reported 2021 and 2024. Both men were fired. She alleges each still got a substantial severance package, with no contract requiring one.

She also alleges that CEO Michael Lisman asked what she did to cause the 2024 assault and why it took so long to report. He allegedly told her that he doubted a woman with a family could be general counsel. He called harassment training a "waste of time." And in July 2025, she was told she'd be replaced by "an objectively less qualified male."

Warren sued. The trial court dismissed her discrimination, harassment, and retaliation claims, and stayed the rest of the case, including a breach of contract claim, under the arbitration clause in her employment agreement.

The appellate court reversed. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act lets a person alleging harassment elect court over a predispute arbitration agreement. If the harassment claim survives a motion to dismiss, it is "by definition nonfrivolous," and the EFAA applies.

Warren's survived. TransDigm argued that firing both men was corrective action and that the conduct wasn't severe or pervasive. The court called those proof questions, not pleading questions. The retaliation claim survived too.

Then the kicker. The EFAA doesn't just free the harassment claims. The agreement is unenforceable as to the entire case. Thus, even a claim for breach of the very agreement that contains the arbitration clause is not arbitrable and must be heard in court.

So here's my bigger question: do you really want arbitration anyway? Businesses favor arbitration for privacy, speed, lower fees, and less risk of a jackpot jury verdict. In my experience, however, it doesn't limit discovery, shorten the case, cut the expense, or hedge your risk. In fact, because you pay for the arbitrator's time, it often costs more.

If privacy matters most to your business, by all means keep using arbitration clauses. Just know that one sexual harassment claim is going to shred that agreement. 

Otherwise, before you put a broad arbitration clause in your next agreement, consider a jury-trial waiver instead, which at least hedges against a runaway jury.

Arbitration promises privacy. It rarely delivers anything else, assuming its it's enforceable in your case at all. And if it rarely delivers, why require it in the first place?

     

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Yesterday morning, my wife, son, and I voted. 

Do you know the rules around providing time off to your employees to vote? 

In fact, 27 other states and Washington, D.C. have similar laws. 

The Ohio statute is short. No set number of hours. No advance notice from the employee. No posting requirement. Just "reasonable." 

Pay is where employers get tripped up. The Ohio Attorney General has said you don’t have to pay hourly employees for voting time, but you can’t dock a salaried employee’s pay for it.

The statute also does more than protect the trip to the polls. It bars you from requiring an employee to go with you to vote. It bars you from refusing to let an employee serve as an election official. And it bars you from using threats or intimidation to push someone to vote, or not vote, a certain way. 

The penalty is $50 to $500. That's a small fine. The story about the employer who fired someone for voting is not small and has the potential to do way more reputational damage to your business.

Election Day is November 3. Tell your managers now, not at 4:45 that afternoon when an employee asks to leave early. 

Ohio has early voting, so point your employees toward it. But if someone needs time on Election Day, don't make them argue for it. 

And if your business is outside Ohio or you have employees located outside Ohio, check those states. Many require paid time off. Some require you to post a notice about it. 

Voting leave is one of the few employment leave laws you can explain in a sentence. There is no excuse not to follow it.

Here's what I read this week that you should read, too. 

Your Chatbot Can't Keep a Secret: Why Employers Still Need Lawyers (For Now) — Dan Schwartz's Connecticut Employment Law Blog 

Could Your HR Chatbot Leak Sensitive Data? — EntertainHR 

Leaders Need to Grapple with Employee Ambivalence on AI — Harvard Business Review

Keeping up with the evolving landscape of trade secret law in the wake of AI — Fair Competition Law  

Inside Anthropic, Every Employee Now Manages Agents — TLNT 

How Law Schools Are Teaching Students to Use AI Responsibly — Indisputably

Bad HR Isn't the Real Problem. CEOs Who Blame HR for Their Decisions Are — Improve Your HR by Suzanne Lucas, the Evil HR Lady 

All or Nothing? Second Circuit Clarifies Scope of Sexual Harassment Arbitration Law — Employment Law Worldview  

EEOC moves to rescind enforcement guidance on criminal background checks — Staffing Industry Analysts  

Instacart settles federal claims of discrimination against US-born job seekers — AP  

4 must-haves for your workplace accommodation policy — Employment & Labor Insider 

Did Explaining a Religious Objection After Refusing to Escort a Transgender Spa Guest Come Too Late? — Eric Meyer's Employer Handbook Blog  

DOL rescinds potentially 'misread' tip rule opinion letters in FLSA enforcement shift — HR Dive  '

My coworker insists on being called "Dr." — Ask a Manager 

     

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A nurse who spent years publicly calling her college racist asks one question at a staff conference: will HR have to take implicit-bias training? A week later, the HR vice president angrily confronts her. 

Is this retaliation? Not according to the 6th Circuit in Burton v. Centre College of Kentucky.

Cheryl Burton worked as a nurse at Centre from 2017 to 2023. She alleged that Black applicants were passed over for less-qualified white ones. She said so publicly, backed a student sit-in, and joined students demanding change. In 2021, she told HR VP Kay Drake she was quitting "to escape the culture of racism at Centre." Drake promised change and a raise, and Burton stayed. Change allegedly never came.

Then came an August 2023 conference and her question about HR and implicit-bias training. Drake allegedly came to her office and angrily asked why she felt the need to ask. The next day, VP of Student Life Barbara LoMonaco allegedly said Burton had "no right to have asked the question about implicit-bias training at the conference" and "we can't hire every black person that applies here." When Burton relayed her husband's warning that she'd become "a target," LoMonaco paused and said, "Well…" 

Retaliation requires a materially adverse action, one that could dissuade a reasonable worker from complaining. Two upbraidings were closer to "petty slights or minor annoyances." If two written reprimands fell short in an earlier case, two angry conversations do too. "Well…" was a veiled intimation, not a threat. And Drake had been receptive to Burton's earlier complaints, so her history didn't help.

Constructive discharge failed too. An employee "is obliged not to assume the worst." Quitting a day later, fearing things might deteriorate, doesn't qualify. Declining to reassure someone isn't announcing that the axe is about to fall.

The employer won this case because of what happened after the angry conversation—nothing. No reprimand. No schedule change. No extra scrutiny. Burton quit before any of that could start. 

Don't mistake that for a green light. A manager telling an employee she had "no right to ask" a question about race is a line a plaintiff's lawyer will happily read aloud. Add one real adverse action, and those comments become the opening act of a retaliation case. 

Train your leaders for the moment right after someone raises a race concern. The only good response is curiosity: what are you seeing, and what should we look at? Then write it down, and leave the employee's work life exactly where it was. 

A motion to dismiss is a great result. Better to never put your business in a position to need one.

     

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"WE'RE HIRING HOSTESSES!"

It's also a problem.

It's illegal to state a preference in a job ad that expresses a preference on one protected characteristic over another. This ad hands any man who isn't hired for the job "Exhibit A" in their sex discrimination lawsuit, and a pretty easy win.

Hostess isn't the only offender. Here are a few more that sound harmless: "Waitress," "busboy," "salesman," and "foreman." Swap in server, busser, salesperson, and supervisor.

"Young," "college student," and "recent college graduate" are all terms that deter older workers. "Digital native" invites the same argument.

"Able-bodied" is an ADA claim waiting for a plaintiff. If the job requires lifting 50 pounds, say so.

"Native English speaker" is also problematic. If the job requires fluent English, write fluent. Demanding a native speaker can read as national origin discrimination.

The fix is simple. Describe the job, not the person you picture doing it. List the duties, the physical demands that are actually essential, and the skills. Then have someone other than the author read the ad before it goes live.

One word won't sink a company. But it hands the EEOC or a plaintiff's lawyer an easy discrimination lawsuit, and it invites a closer look at everything else about how you hire. Cheap to fix. Expensive to explain.

Your job ad should describe the work. Let the applicant pool describe itself.

     

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"We need to terminate her." That's what the Director of Operations at Thomas-Grace Construction wrote the day after an employee complained about her supervisor. She called the complaint "BS."

The employer still won.

In Joseph v. Thomas-Grace Construction, the 8th Circuit affirmed summary judgment on Becky Joseph's Title VII sex discrimination and retaliation claims.

Joseph, a lead installer, complained about three different supervisors in under two months. She apologized in writing for misjudging the first. Her February 22 complaint about the second said he "want[ed] everything his way." It never mentioned sex. She first raised sex discrimination about him and a third supervisor on February 24, writing that "[t]he men are always right in the eyes of the company." That was the day after the "BS" email.

By then the Director had reversed course. She opened a formal investigation, asked Joseph for witnesses and documents, and interviewed four people. The investigation substantiated nothing. TGC offered Joseph a transfer to Connecticut at the same pay and benefits. She resigned and sued.

As for the "BS" email, Joseph didn't dispute that the Director changed her mind or that she got to present her evidence. The email also responded to a message about a supervisor's leadership style that never mentioned sex or discrimination.

Don't read this as a pass for ugly emails. TGC got lucky on timing. Send that same email after a complaint that actually alleges discrimination, and I'm far less comfortable defending it.

But the response is worth copying. When a complaint lands, stop. Investigate before you decide anything. Let the employee name witnesses and submit evidence. Document problems when they happen, even if you don't discipline. Then decide based on those records.

You can't unsend a bad email. You can follow it with a good investigation.

     

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