#MeToo Movement Moves to the Workplace
Sexual harassment and retaliation are serious topics and should be treated as serious concerns for all employers. Make sure you have a full understanding of how these behaviors can have a significant impact on your business.
There is heightened awareness of sexual harassment with a move from Hollywood to the plant floor and office reception area. Since October 2017 when allegations of sexual harassment and sexual assault were made public against Movie Mogul Harvey Weinstein, initiating a movement called #MeToo, there has been a significant increase in the number of sexual harassment claims filed with the U.S. Equal Employment Opportunity Commission (EEOC). EEOC is the federal agency that enforces civil rights laws against workplace discrimination. EEOC defines workplace sexual harassment as “unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature…” Sexual harassment may include remarks about an individual’s appearance, discussions and jokes of a sexual nature. The harasser can be a supervisor, co-worker, or someone not employed by the company, such as a client or customer.
Changing Times and More Complaints
In 2018, EEOC had a 12% increase in complaints with allegation of sexual harassment from the previous year. This contrasts with a decline in the total number of other workplace complaints during the same time period. The #MeToo movement is felt to be responsible for women realizing that they are not alone in their experiences and coming forward more frequently with their complaints of harassing behavior and discrimination in the workplace. EEOC estimates that only 15-20% of workers who experience sexual harassment report it.
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EEOC recovered $70 million for complainants in 2018, which is up from $47.5 million in 2017. Harvey Weinstein and his company paid out $47 million in settlements to more than 30 women who have accused him of sexual misconduct, forcing his company into bankruptcy proceedings. He was also charged criminally for rape. Recently in January 2020, a smaller employer, Swami Pancakes, LLC, a franchisee of IHOP restaurants, agreed to pay $70,000 to settle sexual harassment claims of female employees against their supervisor for unwelcome touching, stalking and sexual comments. The total costs related to sexual harassment claims is difficult to assess as most companies prefer to settle out of court with non-disclosure agreements.
The Impact on Victims
Victims of sexual harassment and discrimination are often emotionally traumatized, confused and deeply worried about their continued employment and the possibility of missed career opportunities following the reporting of such incidents. Several recent studies have indicated that sexual harassment has negative effects on both mental and physical health that can last for years. Harassment can result in increased absenteeism, disruption in the workplace, higher employee turnover, lower employee motivation and commitment. Sexually harassed victims may experience anxiety, depression and substance abuse. Employers need to be diligent in having continuous conversations with their employees about sexual harassment, what constitutes sexual harassment and what to do when it occurs.
Movement for Change in the Workplace
The #MeToo Movement has shifted the social attitude and calls for widespread change and accountability for such behavior. Harassing behavior in the workplace is no longer just a corporate liability, but now a potential risk to business’ reputation and overall business success. The #MeToo Movement has had a significant impact on workplace culture and requires a change in how the interaction with employees is conducted at their place of employment.
#MeToo has essentially focused on women who were victims of sexual harassment providing them a platform to speak about their experiences. Research appears to suggest that women do experience more sexual harassment in the workplace, but anyone in the workplace can be harassed. There has been an increase in claims involving both women as the perpetrator of sexual harassment and male-to-male sexual harassment. EEOC indicates that one in five complaints of workplace sexual harassment involve male victims. Some studies suggest that men who have been sexually harassed may be more reluctant than women to report sexual harassment due to embarrassment.
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Protect from Retaliation and Corporate Policies
While Title VII of the Civil Rights Act of 1964 protects employees from sexual harassment in the workplace, it also protects from retaliation following the report of sexual harassment or discrimination. Retaliation can take numerous forms, including, but not limited to salary reduction, demotion, denial of a raise or promotion, termination, job reassignment or poor performance evaluation. Retaliatory behavior is not limited to personnel changes, but can include additional harassing behavior, significant changes to job duties or working conditions and threats of potential personnel changes.
EEOC reports that retaliation is the most frequently alleged basis for discrimination. Even though retaliation is illegal when the action preceding the retaliation is protected by law, it remains a common problem in the workplace. Reporting sexual harassment or discrimination is a protected activity. In January 2020, Elements Plastics Manufacturing, LLC agreed to pay $30,000 to settle a lawsuit where a female employee was subject to a hostile work environment and retaliation for complaining about sexual harassment. In this case, a few weeks after complaining of sexual harassing behavior described as sexually harassing comments, unwelcome touching and other improper and sexually hostile conduct to her manager, she was terminated from her employment. It is imperative that in addition to sexual harassment policies, employers also enact and enforce anti-retaliation policies.
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Companies are being intensively scrutinized on how they handle complaints of sexual harassment and whether they have a clear zero tolerance sexual harassment policy in place. Prevention is the best tool to eliminate sexual harassment in the workplace. Employers must establish an effective complaint or grievance process. Mandatory training on sexual harassment for all employees should be required. Upon notification of a claim of sexual harassment employers must immediately investigate these claims thereby ensuring that no retaliatory conduct ensues. Employers must strive to instill confidence to their workforce that complaints involving harassment will be promptly and adequately addressed. Employers need to take actions to improve both the workplace and their response to claims of sexual harassment.
Sexual harassment and retaliation are serious issues and should be treated as serious concerns for all employers. Employers need to take appropriate steps to prevent and correct unlawful harassment and discrimination. Failing to understand the serious consequences of sexual harassment and retaliatory behaviors can significantly affect a business for years to come.
Post Script: On February 24, 2020, Harvey Weinstein was found guilty of two counts, criminal sexual assault and rape. The jury acquitted him on the two counts of predatory sexual assault.
This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
Cathryn Ensign is a well-respected attorney who has concentrated her practice on workers’ compensation defense and employment law for over 30 years. She can be reached at 216-287-2979 or by email at firstname.lastname@example.org.
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