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Feb 15, 2018

In December, TIME Magazine’s “Person of the Year” was “The Silence Breakers.” These were the “women (who) have had it with bosses and coworkers who not only cross boundaries but don’t even seem to know that boundaries exist … These silence breakers have started a revolution of refusal, gathering strength by the day.”

Many of the “silence breakers” said that they had reported harassment to their employers. Some of those complaints yielded settlement agreements, complete with the standard confidentiality and non-disparagement clauses. Others went unanswered or were deemed meritless. While it is impossible to know why each of these cases led to their particular outcomes, the relatively stringent standard for hostile work environments in the workplace is one likely culprit. However, that standard, which employs the question of “reasonableness,” is designed to evolve.

Time will soon tell how judicial fact-finders will respond to the “Me Too” era. In the meantime, employers should be prepared to address the cultural sea change in anticipation of a potentially overdue expansion of actionable conduct.

What is actionable sexual harassment?

Workplace sexual harassment is prohibited under both federal and state laws. However, the bounds of what constitutes harassment are not as clear as one might expect. Unlawful sexual harassment can consist of “quid pro quo” harassment (where employment or the benefits thereof are conditioned on a tolerance, acceptance or participation in such harassment) or conduct that creates a “hostile work environment.”

In order to establish a hostile work environment, a plaintiff must prove that the conduct at issue was severe or pervasive enough to create an intimidating, hostile or abusive work environment. Courts take care to distinguish between the ordinary, unpleasant or offensive conduct and that conduct that truly transforms the workplace and affects an employee’s ability to do her job. In evaluating a claim for sexual harassment, courts will consider:

  • Frequency of discriminatory conduct (but a single act could still create a hostile work environment)
  • Severity of conduct
  • Whether conduct is physically threatening or humiliating or merely offensive
  • Whether conduct unreasonably interferes with employee’s work performance

But how does a court weigh the evidence in a case to determine whether a workplace has been transformed by hostile conduct? Critically, in many jurisdictions, but not all, the determination of what constitutes a hostile work environment is left to the “reasonable person of the same gender.” Therefore, as women’s expectations for and demands of the workplace change and, in this case, heighten, so too will the legal standards for many employers.

What happens when the culture changes?

The nature of judicial precedent, which requires courts to rule consistently with prior decisions, means that the courts that decide claims of sexual harassment (or serve as gatekeeper to the juries that ultimately decide) can be slow to change. For example, a court could rely on a case with a similar fact pattern dating decades back in order to justify a finding that some might find outdated. Despite this, however, the “reasonable person” standard employed in many jurisdictions imposes some measure of progress. Therefore, it is likely that, as public opinion about the treatment of women in the workplace shifts, so too will the standard to prove sexual harassment.

What should employers do?

Employers need to be aware that the cultural shifts surrounding “#MeToo” may impact their liability for workplace conduct, and even expand liability for conduct that was once deemed acceptable.

Understand your business’s risk factors for harassment — In 2016, the EEOC issued a report from its Select Task Force on the Study of Harassment in the Workplace, which identified particular risk factors for harassment. These risk factors include workplace homogeneity, coarsened social discourse outside the workplace, workforces with many young workers, and workplaces with power disparities or high value employees, and isolated or decentralized workplaces, and workplace cultures that tolerate or encourage alcohol consumption. These risk factors should be taken into account and openly addressed in training and policymaking around reporting and investigation.

Take a look at your sexual harassment training — A robust sexual harassment training program goes beyond a mere recitation of company policy. The training should include in-person hypotheticals based on real life and should attempt to engage trainees in thinking proactively about workplace conduct.

Does your training include bystander training? Remember – employers can be liable for failing to respond adequately to inappropriate behavior of customers, vendors, and contractors, if that conduct is sufficiently severe or pervasive. Empower your workforce to nip damaging behaviors in the bud by giving them tools to respond to inappropriate conduct in the moment.

Review your policy on reporting — Does it protect against retaliation by allowing for anonymity and offering multiple potential recipients of a compliant?

Is it being uniformly used, or used at all? An absence of reports does not necessarily mean a problem-free workplace. To the contrary, limited or unevenly distributed reporting could signal that there are barriers to reporting, or that employees distrust the system.

Review your investigation practices — Who is conducting the investigations, and what standard do they apply? Involving outside attorneys with experience in litigating harassment disputes lends credibility and perspective to the process. You should also consider whether it would be appropriate or desirable for investigations to be subject to the attorney-client privilege.

Keep your ears and eyes open — A prudent employer is receptive and attentive to its employees’ concerns. One of the best and earliest ways to prevent a hostile workplace and ward off complaints is to incorporate mechanisms short of formal reporting that could more quickly bring dangerous conduct to light. These could include upwards or 360-degree review cycles, vehicles for anonymous questions to executive management, and programs that foster authentic and/or confidant relationships between line employees and the executive team, such as mentorship programs and opportunities to meet with management out of the presence of direct supervisors.

Outside employment counsel can play an invaluable role in any of the above action items. Outside attorneys bring to bear their experience in advising other companies and/or litigating disputes arising out of varying fact patterns. Involving your employment counsel early on can help with the following: preventing hostile work environment claims from arising by implementing comprehensive training and cultural modifications; enabling reporting by preparing clear and complete reporting policy; and responding to and remediating complaints to the satisfaction of employees and the courts.

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