Skeletons in the Closet: When Old Conduct is the Basis for New Claims

Matthew Davison with Baker Donelson recently led a Lunch & Learn about challenges companies are facing since the beginning of the #MeToo movement in October 2017. Companies are facing issues not just of sexual harassment, but also harassment based on race, age, gender, and religion. The reality is concepts of harassment continue to develop as the result of cultural change.

One of the first big cases involving sexual harassment was when Anita Hill accused Clarence Thomas, her boss at the EEOC, of sexual harassment. During the trial her complaints were played off, insensitive questions were asked, and it perpetuated the idea that harassment isn’t harassment unless it is overt. A series of Title VII cases have changed outlooks since then. These cases made hostile work environment, sex stereotyping,  and same-sex harassment actionable. Since 2018, two cases are deciding whether sexual orientation and gender identity harassment fall under Title VII.

Since October 2017, 201 powerful men lost jobs or major roles because of sexual harassment accusations. This is due partly to the huge impact of the #MeToo movement. For the first time this decade, the EEOC had an increase in sexual harassment complaints. There was a 12 percent increase in sexual harassment charges from 2017-2018.

eeocIn June 2016, the EEOC released a 130-page report on harassment in the workplace. The report identified “live, interactive training” as the preferred method of anti-harassment training. Some key takeaways from that report are:

  • No one-size-fits-all training
  • Training in multiple languages, or one that provides for different learning styles and levels of education
  • Training that clarifies what conduct is not harassment and is acceptable in the workplace, reflecting the reality of human interaction and common courtesy
  • Training that educates employees about their rights and responsibilities if they experience or witness harassment and the “(hopefully) multiple avenues offered by the employer to report unwelcome conduct”
  • Training that describes, in simple terms, how the formal complaint process will proceed

What do jurors think of #MeToo?

  • Do you think the #MeToo movement has exaggerated how big a problem sexual harassment remains in the workplace?

exaggerated

  • Employees often do not report sexual harassment by a supervisor for fear of retaliation

retaliation

 

  • The #MeToo movement has put companies on notice that they have much more of a sexual harassment problem than they may have thought

more probelm

 

With the power of social media, the flow of information is at lightning speed. Nothing is secret with social media. The #MeToo movement has presented an interesting question: how do we deal with accusation of old, historical conduct? NBC’s response to the accusations against Matt Lauer can be used as an example.

  • Investigation… then termination
  • Mandatory anti-harassment training
  • “Cultural assessment”
  • New harassment policy
    • zero tolerance for workplace romances
    • hugging rule (quick and immediate release)
    • strict rules about socializing (no sharing taxis home)
    • terminations for not reporting

The primary focus of the #MeToo movement has been on high-profile celebrities, multi-millionaires, or politicians accused of abusing their tremendous power over  others. The threat of negative publicity is massive and millions of advertising dollars are often at stake. These factors explain much of the publicity, as well as the resignations, quick terminations, and massive settlements. At present, it’s unclear how much the #MeToo movement will impact regular employers. What is clear is that public perceptions are changing and employees are a part of that public. As a result, employers must carefully consider how to adapt in sensible ways.

Step 1: Review Your Policy

  • Take a close look at your anti-harassment policy.
  • When is the last time it was updated?
  • Is it effectively communicated or buried in a book no one reads?
  • Consider ways to make it a “live” policy, one that is integrated into your company culture.
  • Consider regularly assessing the policy’s effectiveness via anonymous surveys or
    outside assessments.

Step 2: Training

  • Let’s face it, we all know we should spend more time and money on harassment training.
  • Is there a better time than now to convince executive management of the need for this training?
  • EEOC guidelines strongly suggest: “live, interactive training” presented by trainers “who are dynamic, engaging, and have full command of the subject matter.”
  • Consider small groups instead of full classrooms.
  • Does a 15-minute video still cut it in the #MeToo era?
  • It’s time to get serious about training and education.

Step 3: Complaints and Investigations

  • It’s also time to reevaluate how we investigate harassment complaints.
  • Like it or not, the public (your employees) expect lightning-quick investigations.
  • Perhaps the most dangerous result of the #MeToo movement is the perception that an employer’s only real option when faced with sexual harassment allegations is to fire the accused.
  • This is not the law and it has never been the law.

Step 4: Keep up with Developments

  • Several states are in the process of passing laws that would impact sexual harassment claims:
    • New Jersey: Confidentiality clauses in settlement agreements N/A to discrimination and harassment claims
    • New York: Same as New Jersey, plus mandatory arbitration agreements cannot apply to such claims
    • Pennsylvania: Agreements that bar victims from reporting or naming harassers are unenforceable
    • South Carolina: Mandatory arbitration agreements N/A to sexual harassment claims
    • Washington: Confidentiality agreements
      N/A to sexual harassment claims
    • More to come…………

harassment

There is a statute of limitations to take into consideration. Under Title VII, the suit must be filed within 90-days of receipt of a right to sue letter. To obtain a right to sue, the individual must file a charge with the EEOC within 300 days of relevant events. Under Virginia Human Rights Act, a person must file with Virginia DHR within 180 days. However, there is no statute of limitations on the right to free speech.

Something else to consider is whether or not the accused is still employed. If not, consider limited investigation and making any policy/training changes needed. If so, it is likely wise to investigate as fully as possible. Discipline still may be appropriate, as well as additional actions. Investigations are often difficult as memories fade with time, witness may not be available, and changes in structure, policies, and processes.

Investigations also have publicity/culture implications. Consider:

  • Will not investigating send a bad message?
  • What is the likelihood of publicity?
  • What is the “right thing to do?”
  • Risk of overreaction/under reaction

 

 

Important Notes:

The information above serves as a recap of the presentation provided by Matthew Davison with Baker Donelson, but was not written by Matthew Davison. All information and quotes were sourced from the presentation provided.

SVAM Members can view the full video presentation here.

 

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