Representing Employers In the #MeToo Era

By Robin Shea

The Equal Employment Opportunity Commission reports that it has seen only about a 3 percent increase in sexual harassment charges since the #MeToo movement began roughly a year ago. However, a more significant increase may become apparent in early 2019, after the Agency compiles its charge-filing statistics for the fiscal year that runs from October 1, 2017, through September 30, 2018.

Meanwhile, human rights agencies in several states report that they have seen dramatic increases in the number of sexual harassment charges received.

As a lawyer who represents employers, how can you best ensure that your clients minimize their risks of being targets? First, tell them not to panic. Many of the #MeToo scenarios involve CEOs or other top executives, or uniquely talented creative individuals. It’s difficult for employers to take action against individuals in these categories because they are often the lifeblood of the employer, if not the actual founders. In addition, because of their unique value, they also frequently have contracts with termination provisions that, if exercised, can be prohibitively expensive for the company. The good news is that these individuals represent a small percentage of the population of employees accused of sexual harassment.

The other broad category of accused individuals since #MeToo has been politicians. Short of impeachment or resignation, elected officials are answerable only to the voters who put them in office. Moreover, until recently, the branches of government had grievance procedures that were grossly inadequate for resolving sexual harassment complaints.

For “mainstream” employers, avoiding risk in the #MeToo era involves the same practices that employers’ counsel have recommended for years: adopting a policy that explains, in plain language, the employer’s policy against harassment of any kind; conducting harassment training at regular intervals (ideally, about once a year); promptly responding to any complaints of harassment, as well as harassment of which management becomes aware through observation or otherwise; conducting a full and fair investigation of harassment allegations; taking appropriate action based on the outcome of the investigation; and documenting each step of the way.

That said, as a result of #MeToo, employers’ counsel may want to discuss with their clients some “enhancements” to these standard practices:

• Updating harassment policies to ensure that employees know that they have a place to go if they are being harassed by someone at the top of the organization. A complaint about a high-level executive could be addressed to the Board of Directors, or an outside ombudsperson. The name and contact information for the designated individuals should be included on the policy that is distributed to employees.
• Conducting harassment training not just for supervisors and managers, but also for non-management employees. If the client’s business has independent contractors or employees supplied by a staffing agency, those individuals should be included in the non-management training, as well — unless the staffing agency already conducts training that, in the opinion of you and your client, is adequate.
• If your client’s Board of Directors will be handling harassment complaints against your executive-level employees, the Board members should also get harassment training to help ensure that they will respond to complaints appropriately and with the necessary urgency.
• The executives and leadership should understand that harassment — even especially by them — will not be tolerated.
• Make an honest assessment with your client as to whether any high-level or high-talent individual has engaged in inappropriate behavior that has been “winked at” over time. If so, assist your client in addressing that behavior as soon as possible, and taking other actions that may be necessary or appropriate under the circumstances.
• If your client is facing allegations of widespread harassment, or harassment involving high-level or high-talent individuals, encourage the client to get outside assistance with the investigation — either from an outside law firm or a Human Resources consultant. There are obviously important issues related to attorney-client privilege associated with harassment investigations, and those should be discussed thoroughly with the client before a decision is made.

Finally, employers should also understand that due process for the accused is as important as ever — and perhaps even more important, now that sexual harassment is “hot” again. A benefit of #MeToo is that it is bringing to light harassment that should have been addressed long ago. But the downside is that opportunists may use #MeToo to slander innocent employees with harassment allegations for their own personal motives. An employer will never go wrong by keeping an open mind and conducting an investigation that is fair to both parties before taking action.