This past Sunday, actress Alyssa Milano posted the following message on Twitter:
Me too. Suggested by a friend: “If all the women who have been sexually harassed or assaulted wrote ‘Me too.’ As a status, we might give people a sense of the magnitude of the problem.”
Since Ms. Milano’s original tweet, the hashtag #MeToo has been trending across multiple online platforms, with some users also posting about their own experiences. According to some estimates, over half a million people had posted on the topic by midday Monday. This follows news of former Hollywood mogul Harvey Weinstein’s harassment of women over the course of several decades.
If past trends are any indication, awareness of sexual harassment issues can directly impact the American workplace and employment law. For example, after Anita Hill’s allegations of sexual harassment during Clarence Thomas’s confirmation hearings in 1991, the number of sexual harassment charges filed with the EEOC increased significantly, with many of those new charges filed by women.
Current EEOC statistics show that the number of sexual harassment charges received by the EEOC have decreased slightly from 2010 to 2016. While it remains to be seen whether “me too” will have a similar impact to Ms. Hill’s allegations over 20 years ago, it is an important reminder about this ongoing issue.
The Importance of the Employer’s Response to Harassment Allegations
Employers can be held liable for harassment, based on sex or other protected categories such as race, national origin or disability, if that harassment is severe enough to alter job conditions. However, employers can establish a defense to liability if they can show that they exercised reasonable care to prevent and promptly correct harassment. That means not only responding to internal complaints of harassment, but creating and actively enforcing policies prohibiting harassment.
According to the EEOC, anti-harassment policies and complaint procedures should contain the following elements:
- A clear explanation of prohibited conduct;
- Assurance that employees who make complaints of harassment or provide information related to such complaints will be protected against retaliation;
- A clearly described complaint process that provides accessible avenues of complaint;
- Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
- A complaint process that provides a prompt, thorough, and impartial investigation; and
- Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.
Employers should post and disseminate anti-harassment policies, and train employees regarding what types of conduct is prohibited, and how employees can report harassment. Managers should be advised to immediately report any complaints of harassment, and employees responsible for investigating allegations should be trained on the appropriate procedures.
Beware of Retaliation
Federal law, and many state and local laws, prohibit retaliation against employees who complain about harassment. EEOC statistics show that retaliation claims have steadily increased over the past decade, so much so that in 2016, over 45% of all filed charges included allegations of retaliation.
Retaliation is not limited to terminating employees who complain, but can also include harassing, isolating or ostracizing the complaining employee, or otherwise changing his or her workplace conditions. Employees can file retaliation claims based on circumstantial evidence, such as workplace changes being made shortly after a complaint is filed. While employees who complain about harassment are not entitled to protection from legitimate criticism or business-related changes, front-line managers and supervisors should be trained on how to recognize retaliation and the importance of preventing it. Employers can also reduce the risk of retaliation claims by limiting who is made aware of harassment allegations.
How Should Employers Respond to Old Allegations?
The recent focus on awareness could prompt some employees to raise older allegations of sexual harassment, either on behalf of themselves or others. Harassment lawsuits and EEOC charges are subject to time limits, and employees who unreasonably fail to utilize their employer’s internal complaint process may be barred from filing a claim later. However, employers should not automatically dismiss older allegations brought to their attention, particularly if the alleged harasser is still employed and there are witnesses or documents available that could confirm the allegations. Even if the complaining employee is too late, employers may still be obligated to take action to prevent future harassment where feasible.
Addressing workforce harassment is not only the right thing to do, it is also vital to maintaining a productive work environment and avoiding liability. Given recent events, employers should continue to ensure that they are taking proactive steps to both prevent harassment and address it before it becomes severe enough to violate the law. Employers with questions about whether their policies and procedures are appropriate or up-to-date, or who are faced with challenging harassment or retaliation issues, should consult experienced employment counsel.
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.
Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or firstname.lastname@example.org