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Avoiding Sexual Harassment Claims in the New World of the #MeToo MovementPDF
By Jackie M. Jewell
In October 2017, the hashtag #MeToo was virally born following the publicized sexual abuse allegations against Harvey Weinstein. #MeToo is a widespread social media movement against sexual harassment and assault, particularly in the workplace. Because of the movement, many prominent and powerful individuals, within entertainment, politics, and journalism have publicly faced allegations of sexual harassment and assault.
Many predicted that allegations of sexual misconduct would rise within the common workplace. That hypothesis is no longer speculation. One year after #MeToo, in October 2018, the EEOC released data on workplace sexual harassment claims. The numbers reflect the reality of the #MeToo movement’s impact throughout the country:
- Sexual harassment charges with the EEOC increased by over 12 percent from the previous calendar year; the first increase in year-to-year harassment complaints in a decade.
- Sexual harassment lawsuits filed by the EEOC increased by 50% over 2017.
- “Reasonable Cause” findings in sexual harassment investigations jumped by 23%.
- Successful EEOC conciliation (or mediation) proceedings rose by 43%.
- EEOC website traffic—specifically the Agency’s sexual harassment page—more than doubled over last year.
- Total recovery for sexual harassment complainants in 2018 jumped to approximately $70 million from $47.5 million in 2017.
Consequently, employers must methodically explore the accusations brought on by #MeToo to reduce the risk of exposure. As outlined by the above statistics, an employer, should expect to face heightened litigation costs (discovery and preparing for trial), which can take a toll on any business’s assets, time, and energy. Below are four key principles that every employer should bear in mind, in light of the #MeToo movement.
Four Steps Employers Should Take to Prevent Sexual Harassment Claims
1. Be a Detective. A proper investigation can uncover the extent of wrongdoing, resulting in accountability for individual(s) involved, all the while promoting a harmless, all-encompassing, and healthy work environment for company employees. Employers face three choices when deciding who performs the investigation: (1) Internal employees/business people; (2) In-house counsel; or (3) Outside counsel. Executives should almost never conduct investigations into serious workplace misconduct, even though the intention may be pure—results can be catastrophic. Keep it clean. Appoint a third party to conduct the investigation.
2. Be Proactive. Policies governing investigative measures will prove useful in both the short and long term. Specifically, investigative measures help serve as a training mechanism, for the inexperienced and can provide needed guidance in difficult circumstances. Further, policies can guarantee that all investigations—regardless of the status and position of the accused and the accuser—are done to procedure; thereby reducing or eliminating prejudice, bias, and partiality.
3. Act Quickly. There are certain defenses to liability to preserve. Thus, investigations should begin promptly after the allegation is reported. While no clear rule for ‘promptness’ exists, courts have often held that an employer’s response should occur within days of receiving notice of the alleged issue.
4. Prevent Retaliation. During the investigation, it is crucial to ensure that retaliation against either the accuser or those participating in the investigation does not occur. Just like it is unlawful to engage harassment, federal and state law prohibits retaliation. Indeed, retaliation claims represented almost 50% of the agency’s total charges in 2017. (https://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm).
With the #MeToo movement increasing in momentum, employer best practices are more important than ever before, and should be followed to prevent more claims in light of #MeToo.