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#MeToo - Protecting Your Employees and Your Business

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By Joseph Borchelt

Cincinnati Employment Newsletter
January 2019

Over the past couple of years, the number of high-profile sexual harassment claims have been seemingly endless – Harvey Weinstein, Matt Lauer, Kevin Spacey, Dr. Larry Nassar, etc… Although the phrase “Me Too” had been coined by activists in opposition to sexual harassment as early as 2006, it gained widespread popularity in October of 2017 when the phrase “#MeToo” spread virally on social media in response, in part, to these high-profile cases. The aim of the movement is to show the prevalence of sexual assault/harassment and empower victims to come forward when such harassment occurs. The purpose, goals, and impact of the #MeToo movement are a good thing for our society in that all agree that ending harassment and abuse are justifiable ends. Employers are in the unique position of having an opportunity not only to be on the forefront of prevention efforts but must also be wary of legal risks associated with the proliferation of claims sparked by the #MeToo movement.

In a little over a year since the #MeToo movement gained widespread popularity, as predicted, claims and suits alleging sexual harassment have been on the rise. As of September 30, 2018, the Equal Employment Opportunity Commission (EEOC) reported a 12% increase in sexual harassment claims, and a 50% increase in sexual harassment lawsuits from the previous year. Private lawsuits alleging sexual harassment are on the rise as well. Moreover, as 70% of individuals who have been harassed have never reported the harassment, it is widely believed that sexual harassment is still underreported. However, in the wake of the #MeToo movement, wise employers and legal analysts must ask whether that trend of underreporting will continue. In short, a cursory look at the statistics suggests that we have only hit the tip of the iceberg with respect to sexual harassment claims in the wake of the #MeToo movement.

So, claims are on the rise, but what can we do to prevent harassment and manage liability risks? If, as an employer, you have not asked yourself these questions, you need to start now. Here are a few helpful hints to consider, with the caveat that your best practice is to consult qualified counsel:

• First – Adopt and enforce policies designed to identify and prevent sexual harassment. The initial step in this regard is to train (or re-train) all management on sexual harassment. If your management does not understand what sexual harassment is, how can the illegal conduct be prevented?

• Second – Update your employee handbooks, policies, and procedures to accurately reflect the current state of the law. There are multiple facets of an effective sexual harassment policy, and the failure to incorporate certain provisions may result in the loss of legal liability defenses.

• Third – Communicate effective and legitimate sexual harassment reporting and prevention policies to all employees. There are a myriad of features that a sexual harassment policy may entail (i.e. after-hours hotlines, skipping the chain of command, open-door policies), but the policy is only effective if communicated to employees and appropriately implemented.

• Fourth – Promptly and fairly investigate all claims of sexual harassment. Employers must take “reasonable” steps to prevent harassment and the improper implementation of harassment policies can impact the availability of affirmative defenses to sexual harassment claims.

• Fifth – Consider “zero tolerance” policies. In terms of harassment prevention and mitigation of legal risk, I cannot envision a wise policy that permits any form of intimidating, hostile, or offensive conduct based on sex to be permitted in the workplace. While the accused obviously have rights as well, in the event a credible report of such conduct is received, the continued employment of the harasser can have an astronomical price tag.

• Finally – Consult with your lawyer. Frankly, if sexual harassment were that obvious and easily understood, we would not need to keep talking about it, training on it, and reading about it in articles like this.