#MeToo is Everywhere

As 2017 comes to a close, employers should be acutely aware of the serious potential liability connected to workplace sexual harassment claims.  Workplace sexual harassment has occupied a prominent place in our public dialogue since at least 1991, when allegations about then-nominee Clarence Thomas were laid bare during his United States Supreme Court confirmation hearings.  The perceived indifference from the committee overseeing the hearings sparked the election of a large number of women into state and federal legislatures.  Since then, the issue – one of the few that cuts across gender and partisan divides – has steadily gained traction before exploding once again in recent months.  

Fueled by social media, a campaign emblazoned with “#MeToo” has emerged to encourage people to speak out about their own experiences of harassment.  The campaign has resulted in a daily cascade of allegations against prominent entertainment, media and political figures, often with devastating professional and personal results.  One overriding, but sometimes overlooked, feature in many of these stories is that these claims consistently arise out the workplace.  The term “workplace” is flexible and easily encompasses, for legal purposes, most of the scenarios:  Hollywood audition meetings, volunteering for political campaigns or tours to benefit our soldiers.  And where a workplace is involved, the potential for liability can reach beyond the alleged harasser to include supervisors, managers, executives and corporate boards because workplace sexual harassment is unlawful under federal and state laws prohibiting harassment on the basis of sex – e.g., Title VII of the Civil Rights Act of 1964 (“Title VII”) and the New Jersey Law Against Discrimination (“NJLAD”).

The ability for these stories to spread, sometimes globally, within a few hours of their utterance has transformed the typical dynamics of response.  Where in the past an allegation may have been investigated quietly and resolved internally – sometimes involving a non-disclosure agreement – there are signs that a sea change may be underway.  Indeed, federal and state legislators have begun considering bills banning such non-disclosure agreements in connection with settlements of workplace sexual harassment allegations.  

Against the backdrop of this climate, it is more crucial than ever that employers implement, refine and refresh their anti-harassment policies.  In 2016 alone, the EEOC received 6,758 charges of sexual harassment, which resulted in more than $40 million in damages.  Yet, this amount relates only to EEOC-settled cases, not recovery connected with complaints filed in court asserting federal and state law violations.  There is every reason to expect these numbers to increase in the coming years.

Further, as the current landscape shows, these claims can have more intangible effects, such as harmful publicity, productivity losses, and a decrease in employee morale.  Therefore, faithful application and adherence to a comprehensive anti-harassment policy can be the best insurance against the high cost of potential liability.  In 1998, the United States Supreme Court decided a pair of cases that established what is known as the Faragher-Ellerth defense for harassment complaints under Title VII – a standard that New Jersey’s highest court recently adopted for harassment complaints under the NJLAD.  Faragher v. City of Boca Raton, 524 U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 764-65 (1998); Aguas v. State, 220 N.J. 494 (2015).  Essentially, these decisions create an affirmative defense for employers facing claims alleging that an employee’s supervisors or their superiors engaged in sexual harassment conduct.  To support this defense, an employer must be able to show:  (1) the employer took no tangible adverse employment action; (2) the employer exercised reasonable care to prevent and promptly correct the harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.  This means that employers who maintain and follow effective anti-harassment policies, train their employees and managers, and take prompt remedial action following a thorough investigation, can potentially avoid substantial liability where the employee-plaintiff failed to utilize these internal mechanisms before bringing suit.  

Accordingly, here are some tips that employers should take to avail themselves of the Faragher-Ellerth defense and prevent their businesses from being hash-tagged “MeToo.”

1. Establish, distribute and enforce a comprehensive zero-tolerance anti-harassment policy.  

Preventative measures start with an effective anti-harassment policy that makes clear the organization strictly prohibits unlawful harassment for any purpose, spelling-out legally protected categories, and containing a separate component addressing sexual harassment.  This component should restate the prohibition, define the term “sexual harassment” broadly to include non-sexual remarks and other unwelcome conduct, and provide a non-exclusive list of examples that highlight the sweeping scope of the policy.  A strong policy will remind employees that advances or requests of a sexual nature may implicitly or explicitly exploit power dynamics, leading subjects to perceive that their job could be threatened if they do not accede to – or ignore – unwanted sexual advances.  In addition, the policy should expressly extend beyond conduct in the workplace to include social media.  Although employers should be careful when regulating employee social media activity, there is nothing wrong with a policy that threatens disciplinary action for unlawful sexually harassing conduct undertaken online during non-work time.  

The policy also should establish a clear direction to employees regarding reporting sexual harassment.  This includes the subjects of unwanted conduct as well as a requirement that all employees report to human resources any instance of harassment of which they become aware.  The policy should inform employees that the organization will investigate thoroughly all reports received, will keep employee interviews confidential to the extent possible, and will take prompt remedial action in connection with any investigatory findings.  Employees should sign a form acknowledging their receipt and understanding of the policy, which the employer should collect and maintain in the employees’ personnel files.  Finally, employers should consistently monitor the workplace to ensure employees are abiding by the anti-harassment policy and that there are no impediments to its enforcement.  

2. Train Managers and Employees

An effective policy is useless if employees and managers are not aware of it.  To that end, an organization should conduct regular, periodic training on its anti-harassment policy.  This often includes an overview of the policy and the reporting obligations, a reiteration of the serious consequences, and provide an interactive portion engaging trainees with hypothetical scenarios.  For managers, this training should also make clear that all managers have a heightened responsibility to report any instance of sexual harassment they become aware of.  Managers and supervisors should not take it upon themselves to investigate complaints.  Rather, they should be trained to report any concerns to the designated employer representative.   Again, employers should document attendance with a sign-in sheet and maintain this record.  

3. Promptly and Thoroughly Investigate All Reports of Sexual Harassment

Every complaint of workplace sexual harassment should be treated seriously and investigated promptly.  The investigation should be assigned to an individual who is familiar with the company’s policies and legal obligations, and who may be trusted to fairly and discretely perform the investigation.  

The investigator should speak with the employee making the complaint and document everything.  This includes obtaining a written statement with details as to dates, times, location, and witnesses, or having the investigator contemporaneously prepare the same.  It is important to reassure the employee that no retaliation will result from his or her cooperation.  Likewise, when interviewing the alleged harasser, it is important to provide an opportunity for him or her to respond to the allegations and document such responses.  In addition to the complainant and alleged harasser, it is important to interview all potentially relevant witnesses.  The investigator may explain briefly the nature of the investigation and, again, advise that no retaliation will result from their honest cooperation.  In all cases, the investigator should caution the interviewees to keep their discussion confidential to avoid unduly influencing the investigation or breaching confidentiality.

4. Take Prompt Remedial Action

After completing the investigation, the management team should make a determination about whether the harassment complaint has been substantiated.  If the investigation determines that remedial action is necessary, corrective action should be taken promptly and consistent with the organization’s written policies and procedures.  Failure to do so can create credibility problems in potential litigation arising out of the harassment complaint or the discipline.  The most common example is the so-called “high performer” whom other employees suspect or have complained of harassment, but who never seems to pay any price for it.  This harms employee morale and risks delegitimizing the entire complaint-investigation process.  

Another common complaint reported in recent news stories is that employer did nothing following an employee’s complaint of harassment.  For that reason, it is important to communicate to the complaining employee the conclusions reached by the investigator.  Further, delayed results of harassment investigations can be problematic when later asserting the Faragher-Ellerth defense.  Therefore, where necessary, employers are well advised to take prompt action that is reasonably calculated to effectively correct or cease the harassing behavior.  

Finally, it remains to be seen how long the current trends will continue or to what extent.  The conventional wisdom is that the stories of accusers are now more likely to be believed than in decades past.  If this holds true, employers may fairly expect that more employees who believe they have been harassed will speak out.  Thus, it is critical that employers have solid policies in place for preventing, investigating and documenting reports of workplace harassment in a fair and expedient manner.  

Although this article outlines strategies that employers should consider implementing, it is not intended to provide, nor does it suffice for, legal advice. Accordingly, when employers have questions on establishing or evaluating anti-harassment policies, conducting training and handling potential discipline stemming from a workplace investigation, they should contact experienced counsel for guidance.    

For more information, feel free to contact Justin Schwam at jschwam@foxrothschild.com or Kenneth A. Rosenberg at krosenberg@foxrothschild.com or 973-994-7510 or 973-994-3313.  

Justin Schawam and Kenneth Rosenberg, Fox Rothschild LLP