Actions that firms can take to respond to the #MeToo movement

Although many of the accused harassers and victims who have come forward so far are high-profile Hollywood stars, business executives and politicians, these very public reports are creating a ripple effect that shows no sign of slowing. As a result, employers, regulators and legislators face increasing public pressure to ensure changes happen. Many Democrat and Republican politicians are swiftly denouncing colleagues accused of sexual misconduct. Congress passed rules in December requiring lawmakers, staffers and congressional employees in both the House and Senate to complete sexual harassment prevention training. More and more states, including but not limited to California, now require private employers to conduct harassment prevention training. The harassment laws have not meaningfully changed in the last few years. Federal and state law prohibit sexual harassment at work, both quid pro quo treatment (supervisors favoring subordinates based on the subordinate's response to sexual advances) as well as hostile work environments. Employees bringing hostile work environment claims must show that the sexual harassment they experienced was severe and pervasive. But the reality is that all gender-based harassment and discrimination, even where it does not rise to the level of these legal standards, causes employees emotional distress and deeply disrupts the work environment. Stressful and costly litigation often follows even minor and unsubstantiated accusations. And the recent news reminds us that the public relations fallout can be as damaging as the legal liability. In the wake of the recent scandals, employers should be more prepared than ever for reports of past or ongoing harassment in their workplaces. In addition to corrective actions needed, employers also must be conscious of issues of legal liability. The usual defense to liability is three-prong: policies, reporting and investigation. Proactive employers should ensure their employee policies prohibit harassment, retaliation and discrimination, and publicize that prohibition to the workforce. Every employee must know the reporting procedures, how to report up the chain of command, and alternative complaint avenues available if their manager is the harasser. Finally, it has never been more important for employers to take every complaint of harassment seriously and promptly initiate an investigation to gather relevant facts and take remedial steps that ensure the improper conduct ceases immediately. Another component of a strong defense is employee training. It is time to change how employees are educated to recognize and help prevent sexual misconduct. The Equal Employment Opportunity Commission's Select Task Force on the Study of Harassment in the Workplace reported in 2016 that the usual, old sexual harassment prevention training is not working. In fact, some of the ways we have been conducting harassment prevention training could be counterproductive simply checking a box to minimize legal liability while harassment continues. The task force concluded that workplace harassment training needed to be revamped, suggesting "middle managers and first-line supervisors in particular could be the most valuable resource in preventing and stopping harassment." A refreshed training program is a strong part of the defense against future misconduct and will communicate to employees that prevention is a priority for the company. A growing body of research suggests that training will work best when it includes face-to-face interaction, is presented by outside experts, and involves company leaders. The first step is to move past the online training programs. Employees usually watch these trainings in isolation and either fail to absorb or entirely ignore the content. In the past, courts have largely recognized online trainings as legitimate defenses to legal liability, but that trend will definitely change and these overly simplistic trainings are probably encouraging costly lawsuits, as well as prompting talent to quit in the meantime. Instead, employers can focus on workshops that train employees to be active bystanders, to recognize harassment and discrimination, and to intervene. In turn, these trainings will not only reduce occurrences of harassment, but also cultivate a culture of respect and support for harassed employees that will encourage reporting and boost workplace morale. ----- Charlotte Hodde is an attorney with Barran Liebman LLP. She advises clients on a range of employment law issues. Contact her at 503-276-2102 or chodde @barran.com. Published: Tue, Jan 30, 2018