#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.  

RELATED: Drafting and navigating your workplace sexual harassment policy.

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.

RELATED: Read more from Gertsburg Law.

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 ce@gertsburglaw.com

An audit of your policies can help you avoid the pain of lawsuits. The Gertsburg Law Firm now offers CoverMySix, a one-stop legal audit for your business, led by award-winning litigators and in-house counsel. CM6 minimizes your exposure to lawsuits, investigations, disgruntled employees and customers, and all the damage that comes with them. Schedule a confidential, no-cost CM6 Vulnerability Check with Gertsburg Law Firm’s CEO, who will walk you through the minefields in your documents and key processes and tell you how to fix them yourself. Call 440-571-7774 or e-mail cz@gertsburglaw.com to schedule your CM6 Vulnerability Check today. Newer or smaller companies will want to take advantage of CoverMySix for Small Companies and Startups complete legal documentation portfolio. Check out covermysix.com to learn about the full CM6 audit suite.

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  • Next up: Minority Contracting Programs See Record Year
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  • Minority Contracting Programs See Record Year

    For the first time in its 35-year history, the Minority Business Enterprise met and exceeded state purchasing goals in fiscal 2015. Certified minority-owned businesses represented more than 19 percent, or $228.5 million, of all eligible goods and services contracted by the state. The Ohio Department of Administrative Services (DAS) and Ohio Development Services Agency (DSA) are looking to build on FY15’s banner year for state minority contracting at this month’s MBE/EDGE Business Expo at the Ohio History Center. The Encouraging Diversity, Growth and Equity (EDGE) initiative builds on MBE by promoting access to state government contracts and business services for socially and economically disadvantaged businesses.

    For the first time in its 35-year history, the Minority Business Enterprise met and exceeded state purchasing goals in fiscal 2015. Certified minority-owned businesses represented more than 19 percent, or $228.5 million, of all eligible goods and services contracted by the state.

    The Ohio Department of Administrative Services (DAS) and Ohio Development Services Agency (DSA) are looking to build on FY15’s banner year for state minority contracting at this month’s MBE/EDGE Business Expo at the Ohio History Center. The Encouraging Diversity, Growth and Equity (EDGE) initiative builds on MBE by promoting access to state government contracts and business services for socially and economically disadvantaged businesses.

    The state threshold for purchasing is currently set at 15 percent of all government purchasing. The Ohio Department of Administrative Services (DAS) and Ohio Development Services Agency (DSA) will try to build on fiscal ‘15’s success at this month’s MBE/EDGE Business Expo at the Ohio History Center in Columbus.

    “State procurement professionals are interested in meeting Ohio minority-business owners one-on-one to discuss how we can work together to provide the goods and services the state requires,” DAS Director Robert Blair said in a statement.

    The state of Ohio is currently seeking MBE-certified businesses for products and services in the following categories: Agricultural equipment and supplies, ammunition, building maintenance supplies, cold storage and delivery, court reporters, educational equipment, electronic security equipment, equipment leasing, fire/security systems, funeral services, hearing officers, heavy equipment, inmate patient supplies, laboratory chemicals and supplies, laboratory testing, landscaping, medical professional services, medical specimen courier, medical supplies, medical transcription services, new vehicles, pest control, physicians, printing, police and fire safety supplies, program analysis and evaluation, property management, psychiatrists, psychologists, refuse pickup and disposal, security guards, small engine repair services, vehicle parts and accessories, vehicle repairs and service, timber harvesting, watercraft equipment and supplies, and window washing.

    The MBE/EDGE Business Expo will be held October 27 from 9 a.m.–1 p.m., at the Ohio History Center, 800 E. 17th Ave., in Columbus. Admission and parking are free.

    The state is encouraging participants to register online at das.ohio.gov/eod by October 22, though walk-ins are welcome. Information on MBE and EDGE is also available at the website, or by calling 614-466-8380.





     

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  • Next up: Mitigating Your Risk: How 3PL’s Can Help Secure Your Supply Chain
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  • Mitigating Your Risk: How 3PL’s Can Help Secure Your Supply Chain

    Regardless of size, location, or industry, all organizations face some degree of risk in shipping. Few are proactive at addressing risk, by asking the right questions. It is critical for all organizations to ask themselves, ‘What can go wrong?’ and ‘What are my backup plans if the carrier does not show?’ before problems occur. When risks cannot be eradicated, an organization should follow a plan to fully identify, understand and mitigate the risks involved.

    Risk is a fact of life for any supply chain. Recent studies have shown that although all organizations, regardless of size, location or industry, face some degree of risk within shipping, few are proactive at addressing them. When disruptions happen, who does your logistics team turn to for support? Who is first to respond and are they trained to handle the situation properly to reduce the amount of impact? How quickly can you find a resolution that stays within scope of your business? Unfortunately, most organizations fail to ask these questions until disasters have already taken place. This can result in a loss of time, money, resources and reputation.

    Transportation vulnerabilities can fall into two categories of risk:

    1. Day-to-day risks - provoked by the everyday challenges of doing business. These risks include: changes in customer demand, unexpected transit delays, theft or warehouse shortages.

    2. All Hell Breaks Loose - This encompasses situations that cannot be predicted and often out of your hands. Examples include natural disasters, epidemics or terrorism.

    It is critical for all organizations to ask themselves, ‘What can go wrong?’ and ‘What are my backup plans if the carrier does not show?’ before problems occur. When risks cannot be eradicated, an organization should follow a plan to fully identify, understand and mitigate the risks involved.

    However, it can require a great deal of time and resources to create a risk management plan. Further, having a plan, being compliant or having insurance is never enough to protect you from the potential risks that develop year after year. Once the plan has been created, it must be properly implemented within the organization and employees need to be properly trained to react. The deeper we dive into risk management, the more daunting and complex it becomes.

    More often than not, organizations find that they do not have the proper knowledge, time or resources available to properly address risks within their supply chain. As a result, this topic is swept under the rug and no plans are created. See this infographic for a more detailed look at risk within the supply chain.

    What is your backup plan?

    When creating a risk management plan, it is important to give yourself options. Even if your organization has implemented multiple plans for a variety of situations, what happens when your primary, secondary, ect. plans are not applicable? It is important to have flexible resources readily available that can help you through any situation at any time, while still keeping the scope of your business in mind. In terms of shipping, partnering with a 3PL can provide you with a wide range of support 24/7. Likewise, most are able to contact the carriers directly, making it easier to track shipments and quickly resolve issues.

    3PLs are a wealth of knowledge and experience when it comes to managing your supply chain efficiently and aligned with your business’ goals. What makes them unique is their strategic partnerships with thousands of asset-based carriers, allowing them to bring your organization options in both service and cost anywhere in the world. Additionally, by partnering with a 3PL you receive the benefit of their multi-dollar buying power in the market. This will cut back on the number of middle men involved when calling on your own behalf to multiple carriers.

    For example, if a client has immediate request, calling carriers for expedite quotes can be time consuming and very costly. A 3PL can call upon their wide range of carriers and ensure quality of service, while reducing cost overall.

    Conclusion

    Partnering with a 3PL can dramatically help mitigate the risks involved with shipping. Whether you have inbound shipments from multiple vendors, or one to a million shipments monthly, a third-party logistics provider has the expertise, experience and relationships necessary to ensure your freight happens as planned. Additionally, when problems arise, your team is not alone to solve the solution themselves. A 3PL can reduce the overall cost, reduce potential damage and provide flexibility within the situation to stay within scope of your organizations goals.


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  • Next up: New Cuyahoga County Anti-Discrimination Commission May Cause Legal Issues for Employers
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  • New Cuyahoga County Anti-Discrimination Commission May Cause Legal Issues for Employers

    Does your business employ at least four workers? If so, you need to take note of this Cuyahoga County ordinance that establishes a new way for employees to seek redress for claims of workplace discrimination.

    A recent Cuyahoga County ordinance establishes a new and different forum for employees to seek redress for workplace discrimination claims.

    The ordinance, enacted by the county’s newly formed Commission on Human Rights, impacts employers in Cuyahoga County that have at least four employees. Employers are prohibited from firing, refusing to hire or otherwise discriminating against applicants and employees based on sexual orientation and gender identity. They are also prohibited from inquiring about an applicant’s sexual orientation or gender identity unless there is a reason related to job qualifications. And they’re forbidden from retaliating against any person who has made a complaint; opposed a practice forbidden by; or assisted in any investigation, proceeding, or hearing under the ordinance.

    The commission is responsible for receiving and investigating complaints alleging discrimination based on sexual orientation, gender identity or expression and it shares jurisdiction over these types of claims with the Equal Employment Opportunity Commission (EEOC).

    If an employee files a complaint within 150 days of the alleged discrimination, and the commission finds that the employer engaged in discriminatory conduct, it may issue a cease and desist order. If the employer fails to comply, the order is subject to enforcement through a lawsuit brought by the county. The commission may also order civil administrative penalties of up to $1,000 for a first offense and more than double that for subsequent offenses. Attorney fees and costs may also be awarded to the complainant.

    The ordinance creates a new forum for employers to recognize and navigate. It establishes rights not currently recognized under state law and imposes penalties rather than damages, which can be a critical distinction. Notably, penalties may not be covered by an employer’s insurance policy, so employers should contact their legal counsel and consult with their insurance broker to determine whether coverage exists.

    Mark Fusco is an attorney at Walter | Haverfield who focuses his practice on litigation and labor and employment law. He can be reached at mailto:mfusco@walterhav.com or at 216-619-7839.

    James McWeeney is an attorney at Walter | Haverfield who focuses his practice on education and labor and employment law. He can be reached at mailto:jmcweeney@walterhav.com or at 216-928-2959.


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  • Next up: COSE WebEd Series - New DOL Overtime Rules
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  • COSE WebEd Series - New DOL Overtime Rules

    There are new rules on Overtime pay that will be going into effect December 1 that will impact anyone who has salaried employees making less than $47,476 per year. So, what does this mean for your business?


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  • Next up: New Option for Small Business Health Insurance
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  • New Option for Small Business Health Insurance

    COSE Executive Director Steve Millard discusses the launch of the COSE Health and Wellness Trust.


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