On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 reviewed the movement's impact on sexual harassment claims in the workplace, Part 2 focused on the legislative reaction to the movement, and Part 3 below discusses how employers have responded to #MeToo.
Over the past year, the #MeToo movement has caused a seismic shift in our culture that continues to ripple through important aspects of our daily lives, especially the workplace. As we previously discussed, the #MeToo movement's growing momentum has sparked rising trends in sexual harassment claims and lawsuits, as well as a significant increase in EEOC charges and enforcement efforts. In the past year, the EEOC revealed that it filed 41 lawsuits with sexual harassment allegations, which is a 50 percent increase from 2017. In addition, litigation and administrative enforcement of sexual harassment issues yielded nearly $70 million to the EEOC in 2018, up from $47.5 million the prior year. But newly filed lawsuits or administrative charges only reveal a part of the impact – claims of sexual harassment may have a devastating effect on those accused of wrongdoing and their employers, even if they lie far beyond any applicable statute of limitations, as today's claims often do. Employers of all shapes and sizes are acclimating their policies and practices for the #MeToo era, as none can avoid the categorical shift in workplace culture that is slowly becoming the "new normal."
Employers have adapted to the #MeToo movement in numerous ways. Overall, employers and boards of directors are now much more inclined to move swiftly and take very significant action when complaints of sexual harassment are made in the workplace. The evolution continues as our country's laws and perspectives shift on this important topic, but here are some of the most noteworthy changes made by employers thus far:
Examining Policies as to What Complaints Get Investigated
As many of the allegations being advanced are either far beyond the applicable legal statutes of limitation or involve incidents that occurred at previous employers or in a non-work setting (e.g. the allegations against Brett Kavanaugh), employers must revisit their policies and protocols as to what get investigated and how. This process involves complicated and thorny questions, such as: Does a claim of harassment that appears anonymously on social media get investigated? If that charge is a current employee engaged in harassment at a former employer but has been a model employee, what does the current employer do? If the allegation involves non-work conduct like spousal abuse, does the employer investigate that? Clearly, the triggering events for investigations before the #MeToo movement have been made obsolete by what has transpired in the last year.
Sexual Harassment Training Programs and Policies
Most commonly, many companies have enhanced their sexual harassment training programs and policies. For example, employers are increasingly focused on evaluating the quality of their sexual harassment prevention trainings. Techniques to highlight the prevalence and prevention of sexual harassment—including the use of both live and online trainings, role-playing, one-on-one trainings, and targeted trainings for different levels of employees—are growing more popular. Some companies have taken steps to address the reporting and investigation of sexual harassment claims, such as promoting the accessibility of internal reporting procedures, improving investigative capacities of human resources departments, and engaging outside counsel to investigate the claims. Several employers, including Microsoft, Lyft, and Uber, have also ended their practice of requiring employees to arbitrate claims of sexual harassment in the workplace.
Revisiting Social Media Policies
Many companies have been rethinking and updating their social media policies as harassment frequently occurs through the use of personal devices. Employers could be on the hook for facilitating a hostile work environment even if employees post harassing or derogatory information about their coworkers away from their workplace, such as on social media. Chances of liability increase if the employer is aware of such postings or if the harassing employee used employer-owed devices and accounts to post the discriminatory or harassing content. With the increasing prevalence of social media in and outside the workplace, employers are making the requisite changes.
Revising Consensual Relationship Policies
Employers have also been revising their policies regarding consensual relationships in the workplace. According to a 2018 Vault survey, 52 percent of respondents have engaged in at least one office romance, and, according to the survey, most romantic encounters between coworkers sparked during office parties or happy hours. The prospective tide may be turning as the same survey revealed that approximately one in four workers stated that allegations against prominent men in the last year of the #MeToo movement have made them less likely to believe that romantic workplace relationships are acceptable. Nonetheless, as the #MeToo movement continues to shift the cultural dynamics in and outside the office, employers should reconsider their policies about consensual office relationships.
Cultural Shift in the Workplace
In addition to editing their policies and procedures, employers have taken steps to affect broader cultural change. For instance, some employers have cut back on alcohol at company events or offered more food options to offset it. Others have engaged professionals or other employees to be alert for any suspicious behaviors and patrol company functions. In general, companies now have an increased awareness of sexual harassment issues as compared to just one year ago.
On the whole, these changes are meant to reduce, prevent, and eliminate sexual harassment in the workplace. While these measures can be costly and time-consuming to implement, some evidence exists that executives have recognized the broad risks presented by workplace harassment. According to new research from the Society for Human Resource Management (SHRM), many executives believe that sexual harassment in the workplace negatively affects the morale, engagement, and productivity of staff and ultimately hurts the company's bottom line. However, evidence of meaningful sexual harassment trainings and policies—when coupled with a timely and thorough investigation—can serve as a defense to sexual harassment lawsuits.
Yet as SHRM's survey shows, although 72 percent of employees in the U.S. are content with their employer's efforts to prevent sexual harassment, more than one-third believe that their workplace fosters sexual harassment. Employers continue to grapple with delicate and complicated decisions in the #MeToo environment, including:
- whether to enhance due diligence in hiring practices, such as background checks directed at revealing past harassing conduct;
- implementing "zero tolerance" policies;
- determining whether to cut ties with accused individuals based solely on media reports; and
- deciding how to properly train executives with inherently poor judgment.
Importantly, at the same time that employers are facing these risks, men in the workplace may feel reluctant to interact with female colleagues or continue providing women mentoring in group or one-on-one situations. Employers should be vigilant in ensuring that their office culture continues to foster these opportunities.
As we move into the second year of the #MeToo movement, employers should be prepared to enact more significant changes to internal policies and daily operations to prevent sexual harassment in the workplace. Employers should also track developments regarding federal, state, and local legislation that impact their policies. The efficacy of employers' steps to keep pace with the #MeToo movement are yet to be fully realized, but employers should continue to monitor the legal landscape and take action to prevent and remediate any sexual harassment in the workplace.