Equality In The Workplace
The #MeToo Movement
What we have learned and where we need to go.
By Allison C. Williams
While sexual harassment and gender discrimination claims are not new
to the workplace or to employment litigation, the recent sexual
harassment scandals, often at the highest levels of organizations,
and/or in high-profile industries, have rejuvenated gender-based
complaints filed with the Equal Employment Opportunity Commission, or
EEOC, and the courts. Since it began, the #MeToo movement,1
characterized by a season of online posts by individuals with shared or
similar experiences of sexual harassment, continues to advance the
rights and visibility of the victims of sexual harassment. The movement
set a spark among victims, providing them with a platform and the safety
in community to share experiences and bring to light the rampant problem
of sexual harassment, thereby humanizing victims and bringing sexual
harassment to the forefront in politics and business. While the U.S.
Supreme Court first recognized sexual harassment as a violation of Title
VII of the Civil Rights Act2 in Meritor Savings Bank v.
Mechelle Vinson in 1986, creating the preconditions and legal
ramifications for the #MeToo movement, Title VII did not provide an
avenue for victims to overcome the routine attacks against their
credibility, including that the victim was “too sensitive,” “asked for
it,” or was simply lying.
In June 2016, nearly a year before the #MeToo movement began,3 the EEOC released a study regarding harassment in the workplace. In its 88-page report, the EEOC found that 75 percent of sex-based harassment goes unreported in the workplace because the victim “fear[s] disbelief of their claim, inaction on their claim, blame, or social or professional retaliation.”4 Shortly thereafter, and thanks in large part to the #MeToo movement, victims found a new platform in social media: a community with shared experiences and similar stories. Spreading their message, sometimes globally, the victims are demanding attention, and they are demanding results. While sexual harassment claims are perhaps not fundamentally different than before,5 people, especially those in power, are now paying attention.
The well-known case of Harvey Weinstein and others before it, and the tsunami that followed and continues today, signal that employers are getting the message that sexual harassment, in any form, cannot be tolerated or swept under the rug—if not for moral sensibility, then for good business.6 Aside from the moral repugnancy of permitting or overlooking workplace harassment, there is a compelling business case for stopping and preventing sexual harassment. Workplace harassment first and foremost comes at a steep cost to those who suffer it, as they experience mental, physical, and economic harm. Beyond that, workplace harassment affects all workers, and it costs the employer in decreased productivity, increased turnover, and reputational harm. In 2015, the EEOC recovered $164.5 million for workers alleging harassment.7 In 2017, 742 sexual harassment claims were filed with the EEOC in Texas alone (accounting for roughly 11 percent of all claims filed with the EEOC in the U.S.).8
Since the release of the 2016 report and the rise of the #MeToo movement, employers are changing their practices and approach to responding to sexual harassment claims. Now, more than ever, it is critical for employers to equip themselves with a new level of consideration when confronted with allegations and complaints. The demand for transparency in handling complaints and promptly conducting investigations cannot be overstated. There are steps that all employers should consider, regardless of industry or size:
Be willing to hear the complaints. Employers should promote an “open door” culture for complaints. If the employer receives a complaint, an opportunity is created to address the issue head-on, end inappropriate behavior, take immediate action, protect the victim, and elevate the culture of the company. When confronted with a harassment complaint, employers should take the complaint seriously.
Provide multiple avenues for reporting. Employers should also consider how they can provide opportunities and different avenues for employees to report their concerns. An employer may consider instituting an anonymous reporting hotline and retaining an independent investigator if the allegations are asserted against management. Just because a concern is reported anonymously does not mean that the concern should be taken less seriously.9 Like all complaints, upon receipt, the employer should conduct a good-faith investigation—one that is prompt, thorough, and impartial.
Train, train, train. Employers should also consider updating and expanding their anti-harassment training materials to their employees and confirming that policy materials can be readily accessed by their target audience, including management and persons in leadership positions. However, employers should be cautious in how the training materials are prepared. While training may protect companies from lawsuits, it can also backfire by reinforcing gender stereotypes,10 at least in the short term, according to research by Justine Tinkler, a sociologist at the University of Georgia.11 This is, in large part, due to the substance of training materials portraying men as powerful and sexually insatiable and women as vulnerable. It is important for employers to take care in preparing training materials and proactively address gender stereotyping.
In addition to standard training regarding reporting and responding to harassment, employers should encourage “bystander reporting.” Bystander training could teach co-workers how to recognize potentially problematic behaviors, motivate and empower employees to step in and take action, teach employees skills to intervene appropriately, and provide employees with the resources needed to support intervention.
Talk the talk. Remember what the boss says matters and can impact the resolution of a complaint. Even if a corporate executive is not involved in the ultimate employment decisions or actions that give rise to a harassment complaint, the executive’s words can be used to send a message about the culture of the company, including how it values its employees. As articulated by one appellate court, “When a major company executive speaks, ‘everybody listens’ in the corporate hierarchy, and when an executive’s comments prove to be disadvantageous to a company’s subsequent litigation posture, it cannot compartmentalize this executive as if he had nothing more to do with company policy than the janitor or the watchman.”12
Isolation is not the solution. An unwanted consequence of the #MeToo movement is the unwillingness for some men to engage in business relationships or provide business opportunities to women out of fear of accusations. For example, a business opportunity arises that requires the assistance of an associate. The opportunity warrants an out-of-office business meeting (restaurant or coffee) or out-of-town travel. Gender should not be considered in making the selection. The fear of accusations of improper conduct should not create a barrier for women to succeed.
Avoid overreaction. Avoid kneejerk reactions to accusations. While all complaints should be taken seriously and immediate action should be taken to investigate a complaint, the company should avoid taking overly aggressive measures against the accused pending an investigation. The reaction should be equal to the accusation.
In light of the #MeToo movement, it is imperative for employers to revisit their corporate policies and procedures to best position themselves to address these high-profile and costly concerns. If you have not reviewed your current policies and reporting or investigative practices, now is the time to do so.TBJ
ALLISON C. WILLIAMS
represents and advises employers on all matters of labor and employment law in state and federal courts. Her practice focuses on class and collective action wage and hour disputes as well as single-plaintiff discrimination, harassment, and retaliation claims. In addition to representing clients in litigation, Williams has represented clients during investigations conducted by the U.S. Department of Labor, the California Department of Fair Employment and Housing, the California Division of Labor Standards Enforcement, the Texas Workforce Commission, and the Equal Employment Opportunity Commission.