Since the #MeToo movement began in October 2017, hardly a week goes by without the hashtag making headlines. From Miss America pageants to proposed legislation, the movement has given victims of sexual violence and harassment a new voice and has become integrated into the American mainstream. And like Anita Hill’s testimony in 1991, it is changing the American workplace.
But has the movement had the same impact globally? This article compares the movement in two different United States jurisdictions, Brazil, and the United Kingdom.
Even prior to the #MeToo movement, California was labeled by many employers as the most employee-friendly jurisdiction in the United States. Unlike many states that follow federal law, California has created its own employment laws on topics such as harassment and discrimination. Indeed, California even has its own administrative agencies to help allegedly wronged employees recover as a result of violations of these laws.
For example, it is unlawful in California for an employer to harass, discriminate, or retaliate against an employee based upon multiple protected categories, including sex, gender, gender identity, gender expression and sexual orientation. Furthermore, while most federal anti-discrimination laws apply to employers with 15 or more employees (20 employees in case of age discrimination), California’s anti-discrimination laws covers every employer with five or more employees.
Supervisors can be held personally liable for sexual harassment in California and employers with 50 or more employees are required to provide supervisory employees with at least two hours of training once every two years on policies that prohibit unlawful harassment. New supervisory employees must receive sexual harassment training within six months of becoming a supervisor and in certain industries such as agriculture and janitorial services, sexual harassment training is required for all employees.
The #MeToo movement has resulted in the proposal of additional legislation. One proposal, Assembly Bill 2770, was signed into law on July 9, 2018. This bill specifically identifies employee complaints of sexual harassment as “privileged communications” for purposes of defamation claims.
There are a number of additional bills pending before the California legislature. The most controversial is SB820, also known as the STAND (Stand Together Against Non-Disclosures) Act. This bill would ban non-disclosure settlement agreements in cases of sexual assault, sexual harassment, and sex discrimination litigation. Proponents of the bill claim that it will help protect women from being victimized. The California Chamber of Commerce, on the other hand, opposes the bill because a lack of confidentiality will result in more cases going to trial.
The movement has also resulted in an increase in both threatened and actual litigation against employers. In these actions, alleged victims are making increased monetary demands, apparently spurred on by the headlines. They are also under the impression that by simply making an allegation of harassment, an employer must immediately terminate the accused. This has never been the law – not even in California. Employers must still promptly and thoroughly investigate allegations before any adverse employment action is taken.
While Texas is generally considered a more employer-friendly jurisdiction, the #MeToo movement has also impacted the Lone Star State. Like federal law, Texas state law prohibits harassment in companies that employ 15 or more employees. The law further prohibits discrimination or retaliation against a person who opposes a discriminatory practice, makes or files a charge or complaint, or testifies, assists, or participates in any manner in an investigation, proceeding, or hearing on the issue. Furthermore, Texas has provisions that protect unpaid interns from sexual harassment if the employer or its agents or supervisors knew or would have known that the conduct constituting harassment was occurring and failed to take immediate and appropriate corrective actions. However, unlike California, supervisors generally cannot be held personally liable for workplace harassment.
The national #MeToo movement has led to a strong recognition by Texas employers and lawmakers for the need to prevent and respond to complaints in a swift and through manner. The Equal Employment Opportunity Commission collected over $46 million from employers nationwide in 2017 on sexual harassment claims alone, and that number will likely rise given the uptick in complaints and lawsuits involving claims of sexual harassment, even in jurisdictions like Texas
Recognizing this, Texas employers are reinforcing existing anti-harassment and anti-discrimination policies as well as communicating clear reporting procedures to company employees. Furthermore, a renewed focus on employee training on anti-harassment policies and reporting procedures has emerged. Unlike California, anti-harassment training and education is not mandatory for private employers in Texas. However, the Texas Workforce Commission encourages all employers to take the steps necessary to prevent sexual harassment from occurring. In fact, training is identified as an important step for minimizing liability.
The Texas House of Representatives recently highlighted this issue. In December 2017, the Texas House updated its sexual harassment policies and set forth updated requirements that all Texas House employees and staff undergo anti-harassment and anti-discrimination training. The Texas House also reinforced the specific steps House employees and staff should take to report inappropriate behavior. The Texas Legislature’s internal focus on the issue of harassment prevention, training and reporting in the #MeToo era is likely a prelude for what is to come from Texas lawmakers in the form of legislation addressing issues of harassment in the workplace during the 2019 legislative session.
#MeToo beyond the United States borders
Through technology advancements and increased global trade of goods and services, companies and their employees are far more likely to be spread across the globe than they were even a decade ago. As such, it is critical for employers to be mindful of the legal landscape in the workplace on a global scale. While the #MeToo movement and response thereto has impacted the United State workplace, the movement is also gaining traction in jurisdictions overseas. For example, all of Latin America has signed the United Nations convention on the elimination of discrimination against women. By 2016, over two dozen countries had taken steps through their own laws to outlaw sexual harassment. The following highlights two jurisdictions where the impact of #MeToo is impacting the workplace.
Although Brazil is far behind the United States in its awareness regarding sexual harassment in the workplace, there has been a steady, albeit small, increase in the number of official claims of sexual harassment, awareness campaigns, and proactive steps taken by local companies to prevent, investigate and punish sexual harassment.
In January 2018, the Brazilian Labor Prosecutor’s Office launched a campaign to encourage and support individuals in coming forward with their claims. The Office posted on its website several videos and a guide with detailed information about the law, forms of sexual harassment how to prove it, sanctions, and guidance on how to file a complaint. However, although the complaints to the Office have doubled in five years, in 2017 there were only 340(!) reported complaints in a country with a workforce of about 45 million.
From a legal perspective, sexual harassment in the workplace has been considered a crime since 2001. The Penal Code provides that it is a crime to obtain sexual advantage or favor using the authority inherent in one’s position. This offense is punishable by one to two years of incarceration. However, that only punishes (if it actually does so) the most extreme cases and there are no criminal penalties for corporate employers.
There are no specific labor laws to prevent or punish companies and individuals for sexual harassment, but the labor courts, and now with the additional support of the new provisions of the Labor Code, frequently award “moral” damages to employees harassed in any form or shape. Sexist jokes, unwarranted compliments about looks, and degrading comments, however, are still commonplace and are rarely punished because they continue to be perceived as culturally acceptable and funny. Women who complain about these misbehaviors are often ridiculed or shamed by peers, called puritans, uptight, and “mal amada,” an offensive term meaning that the person is not loved and/or misses good sex.
Many employers, however, in the wake of the #MeToo movement and the influence of the American multinational companies in the country, are stepping up by providing more training and developing internal complaint channels. There is an emerging consensus that people must become more conscious about the harm of pervasive offensive jokes and remarks in the workplace, and that top-down model behavior and training are needed to combat these practices.
The media also has an important role by calling out wrongdoers and “forcing” employers to take action to avoid being publicly shamed. During the recent World Cup in Russia, some male Brazilian fans asked some Russian women to repeat certain vulgar phrases in Portuguese, unaware of their actual meaning, while they recorded them on video. They posted these videos thinking they were funny and the videos went viral. The men were recognized and their names were all over the news. One of them owed child support and the judge in his case ordered a freeze on his bank account. A second man is from the Brazilian military police, which opened an internal investigation about his conduct. Yet another one who worked for a multinational company was immediately fired for cause for breach of its code of conduct.
The #MeToo movement came across the UK scene as the new gender pay gap reporting obligation was coming into effect. Headlines about shockingly large pay gaps at prominent companies such as the BBC primed public consciousness about gender-related workplace discrimination. The UK #MeToo headlines included accusations of sexual assault against politicians and actors such as Kevin Spacey, who was very prominent in the London Theater world.
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A backlash against #MeToo started to form in reaction to the fall of two politicians because it stemmed from what were perceived to be relatively minor incidents of knee touching (one of which occurred 15 years earlier at a dinner party at which the perpetrator’s wife was present). A new furor, however, erupted over The President’s Club. The Financial Times sent an undercover reporter to the elite black tie event held annually for (male only) leaders in business, politics, and finance. The colorful report describing the behavior of the male attendees, and the fact that the young women hired to work at the party were allegedly required to sign non-disclosure agreements, rekindling public interest and concern about sexual harassment.
In the UK, sexual harassment is a form of discrimination under the Equality Act 2010 (“EA 2010”), which provides for individual and employer vicarious liability. Common law and breach of contract and constructive dismissal claims can also be brought for such conduct. A further offence was created by the Protection from Harassment Act 1997 (“PHA 1997”), which was originally introduced to deter stalkers but applies also to workplace harassment, and employers can be vicariously liable for such harassment.
But apparently these protections have not been very effective as a means to limit occurrences of sexual harassment in the workplace. Various surveys on sexual harassment in the UK workplace have been conducted to gather data, such as those by the BBC, the Equality and Human Rights Commission (“EHRC”), and the Trade Union Congress (“TUC”) together with the Everyday Sexism Project. All found that despite existing protections, the problem is significant. The TUC survey, conducted in 2016 (called “Still Just a Bit of Banter”), found that more than half of all women polled had experienced some form of sexual harassment. Nearly one quarter had experienced unwanted touching and one fifth had experienced unwanted sexual advances. These surveys also found that reporting rates are low.
While new laws have not yet been created in reaction to the #MeToo movement, recommendations by the TUC and the EHRC in light of the data include the following:
- Abolition of Employment Tribunal fees (which has now already occurred, resulting in a recent spike in Tribunal claims).
- The imposition of an affirmative duty on employers to take reasonable steps to protect workers from harassment and victimization in the workplace. Breach of the mandatory duty would constitute an ‘unlawful act’ for the purposes of the Equality Act 2006 (“EA 2006”), which would be enforceable by the EHRC. Currently, taking such steps is the basis of an affirmative defense to employer vicarious liability, not a mandatory obligation.
- Introduction of a statutory code of practice on sexual harassment and harassment at work, specifying the steps that employers should take to prevent and respond to sexual harassment, and which can be considered in evidence when determining whether the mandatory duty has been breached.
- The TUC and EHRC also suggest the need for laws and guidance on the use of confidentiality clauses in relation to acts and claim of sexual harassment, which could affect employee confidentiality agreements at the inception of employment as well as settlement agreements.
Additional proposals are being discussed to change how employers must investigate and treat evidence when an employee makes a sexual harassment complaint or grievance. Some concerns have been raised over such proposals. These include questioning whether changing the law to single out sexual harassment allegations for special treatment is appropriate, effectively treating sexual harassment as a more serious a category of misconduct than bullying or racial discrimination. And concern has been expressed about eroding the protections of due process for those accused of sexual harassment in the workplace, which are codified in statutory codes of practice.
While the impact may vary from jurisdiction to jurisdiction, one thing is clear – the workplace is changing as a result of the #MeToo movement. Employers, therefore, should consider reviewing and revising their policies and consider offering training to their workforces.