Presented on May 22, 2018 at the Parsons Behle & Latimer 30th Annual Employment Law Seminar

1. Parsons Behle & Latimer Employment Law Seminar
BEST PRACTICES FOR ADDRESSING
SEXUAL HARASSMENT IN THE NEW
#METOO #TIMES UP ENVIRONMENT
Derek Langton
801.536.6704
dlangton@parsonsbehle.com
parsonsbehle.com
TUESDAY, MAY 22, 2018 | THE GRAND AMERICA HOTEL

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 What is sexual harassment as a legal concept and
where did it come from?
Sexual Harassment

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Protected Classes (15 employees +)
Utah Antidiscrimination Act Federal Statutes (Mostly Title VII)
Race Race
Color Color
Religion Religion
Gender Gender
National Origin National Origin
Age Age
Disability Disability
Sexual Orientation Still in flux
Gender identity Still in flux
Religious liberty
Pregnancy Pregnancy
Sex as Protected Class

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Discrimination—Federal and State Law
 Disparate treatment—treating someone differently because of their protected
class
 Reasonable accommodation (disability, religion, and pregnancy)
 Retaliation—Retaliating against someone for complaining about potentially
illegal activity, or participating or assisting in the pursuit of a claim
Later . . .
 Harassment—Harassing someone because of their protected class
 Sexual harassment in particular
 Hostile work environment (class of sexual harassment)
From Sex Discrimination to
Sexual Harassment

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Harassment
 Unwelcome or unwanted conduct
 Based on one or more of the protected classes
 Quid pro quo, or
 Severe or pervasive enough to alter the conditions of employment
creating a hostile work environment
– Conduct unreasonably interferes with an individual’s work
– Conduct creates an intimidating, hostile or offensive work environment
What is Sexual Harassment?

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 The Faragher Ellerth affirmative defense
– Helps employers avoid liability for harassment
 The defense is available when the employer can prove:
– The employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior; and
– Employee unreasonably failed to take advantage of any preventive or
corrective opportunities provided by the employer
 For example, if an employer has a policy prohibiting harassment, and
an employee unreasonably fails to report harassment under the policy,
the Faragher-Ellerth affirmative defense may be available
Sexual Harassment Defense

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 The Faragher Ellerth defense only applies to hostile work
environment situations; it does not apply to quid pro quo
claims
 It also applies only in situations where no tangible
adverse employment action was taken against the
plaintiff (for example, discharge, demotion, or undesirable
reassignment)
Sexual Harassment Defense

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 To take advantage of the Faragher Ellerth affirmative defense,
and to stop harassment from happening in the first place,
employers should
– Have policies prohibiting sexual harassment
– Include in their policies multiple ways for an employee to report
harassment
– Train their employees on the policies and how to report harassment
– Investigate when there is a report (formal or informal) or they have
knowledge of possible harassment
– Take action when they find harassment
Sexual Harassment Defense

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 So what changed in the law this last year to create the
#MeToo and #Time’sUp movements?
What Changed in 2017-18?

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 Nothing
 Nothing in the law really changed; the law is basically the
same
 The world, however, is not; the world – and people’s
perceptions and attitudes toward sexual harassment –
changed a lot
What Changed in 2017-18?

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 In October of 2017, the New York Times published an
article about Harvey Weinstein and decades of sexual
harassment against women in Hollywood
 The floodgates opened
 Social media made it very easy to make public
accusations
How Has the World Changed?

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 In recent years, studies showed that sexual harassment
policies and training had not solved the problem
 Sexual harassment hit a tipping point
 Social movements—helped by social media—brought new
attention to the problem; notably, these movements included
#MeToo and #Time’sUp
 The fact that hundreds of women were coming forward with
accusations against powerful men emboldened lots of other
women to have the courage to also come forward
Why Did This Happen?

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#METOO

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 Term was first used in 2006 by gender equality activist
Tarana Burke as rallying cry for young sexual harassment
and assault survivors
 Actress Alyssa Milano received a screenshot of the
phrase in October 2017, and later tweeted that if you’ve
been sexually harassed or assaulted, write “me too” as
reply to this tweet
 Overnight, she got more than 30,000 responses
What Is #MeToo?

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 #Time’sUp shares similar vision for women’s empowerment
with #MeToo, but has somewhat different goals; it was started
by a group of over 300 women in Hollywood
 It’s been described as “solution-based, action-oriented next
step in the #Metoo movement”
 Its focus is getting legislation passed and policies changed
with respect to gender parity and increased opportunities for
women
 Organizers created the Time’s Up Legal Defense Fund
What Is #Time’sUp?

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 A recent poll conducted by NBC News and the Wall Street
Journal shows that 48 percent of currently employed
women in the United States say that they have personally
experienced an unwelcome sexual advance or verbal or
physical harassment at work.
Data: NBC/WSJ poll, October 23-26, 2017
How Big a Problem is
Workplace Harassment?

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 LeanIn.Org
 #MentorHer
– Almost half of male managers are uncomfortable participating in a
common work activity with a woman, such as mentoring, working alone, or
socializing together.
– Almost 30% of male managers are uncomfortable working alone with a
woman—more than twice as many as before.
– The number of male managers who are uncomfortable mentoring women
has more than tripled from 5% to 16%. This means that 1 in 6 male
managers may now hesitate to mentor a woman.
Impact of #METOO

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EEOC Checklist: Leadership and Accountability
 A policy that is easy-to-understand and that is regularly communicated to
all employees
 A reporting system that employees know about and is fully resourced
 Discipline that is prompt, consistent, and proportionate to the severity of the
harassment
 Accountability for mid-level managers and front-line supervisors to prevent
and/or respond to workplace harassment
 Regular compliance trainings for all employees
 Regular compliance trainings for managers and front-line supervisors
so they know how to prevent, report and/or respond to harassment
EEOC Checklist

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EEOC Checklist: Leadership and Accountability
The first step for creating a holistic harassment prevention program is for
the leadership of an organization to establish a culture of respect in which
harassment is not tolerated.
 Has leadership allocated sufficient resources for a harassment prevention
effort?
 Has leadership allocated sufficient staff time for a harassment prevention
effort?
 Has leadership assessed harassment risk factors and taken steps to
minimize those risks?
EEOC Checklist

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Bonus points if you can check these boxes:
 The company conducts climate surveys on a regular basis to assess the
extent to which harassment is experienced as a problem in the workplace
 The company has implemented metrics for harassment response and
prevention in supervisory employees' performance reviews
 The organization conducts workplace civility training and bystander
intervention training
 The organization has partnered with researchers to evaluate the
organization's holistic workplace harassment prevention effort
EEOC Checklist

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 Best Practice
– Policies
– Training
– Procedures
Your Responsibilities

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 Best Practice
– Policies
• Handbook
• Reporting
• Process
• Retaliation
• HR Policies
Your Responsibilities

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 Best Practice
– Training
• Staff
• Supervisors
• Regular
• Quality
• Leadership
Your Responsibilities

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 Best Practice
– Procedures
• Who receives complaints?
• What happens next?
• What is the timeline and process for investigations?
• How can you be fair and objective?
Your Responsibilities

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 The HR Department is the frontline for implementing the
Company’s policies:
– Your actions can make the Company liable
– If you know something, the Company may be deemed to know
it and your failure to act may make the firm liable
– You set an example for those who work at your company
Your Responsibilities

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 Culture has to change—modeling behavior, women in
management
 Culture has to come from the top—dignity and respect
 HR cannot do this alone—cannot be a check box
 It is still about policies, training, reporting, investigations, and
swift action
 Employees have to trust the process—action
 Underreporting is a management problem (bystander training)
Top Takeaways

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1. Employees are still struggling with what is harassment
2. Companies need to fix the underreporting problem
3. The company will be deemed to “know” about the problem if
managers or supervisors know, have seen something, have
heard rumors, etc.
4. Trend toward industries and contracts requiring policies and
procedures
5. There will be more public claims
Other Lessons from #MeToo

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6. Historic claims
7. New legal claims
8. Criminal conduct
9. Consensual relationships
10.Confidentiality under attack
11.Backlash
Other Lessons from #MeToo

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1. New focus on what is harassment
– There are lots of gray areas—training should use examples,
use real cases, be specific
– “You look nice today”
– Do employees know how to say no or communicate that they
are uncomfortable?
– Do employees know how to hear this message?
Other Lessons—
What is Harassment?

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What Is Harassment?

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 Behaviors that can constitute sexual harassment
– Unwelcome advances or requests for sexual favors
– Pressure for dates or romantic relationship
– Not leaving someone alone when they say no
– Sexual remarks, emails, texts, jokes
– Suggestive looks, vulgar or lewd conduct
– Inappropriate physical contact or gestures
– Anything that could be objectively viewed as unwelcome sexual behavior
Sexual Harassment – Examples

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“Hostile work environment” and “harassment” are legal terms that
get used too broadly
 “Hostile work environment” or “harassment” refer to illegal discrimination
based on protected class—that is all the law forbids
 Employees sometimes say they work in a hostile work environment when
they think their boss is a jerk
 The conduct still may be unacceptable in the workplace—you can still
report this conduct and the Company will decide if it is acceptable or not
Not Harassment

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2. Reporting remains a big problem
– Do employees feel safe to report?
– What if the perpetrator is at the top?
– What about serial perpetrators?
– This comes down to culture and trust
– Swift and appropriate responses build trust
– If your company has not earned this trust in the past, re-set the
tone
Other Lessons—
Fixing the Reporting Problem

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 Plaintiff worked for Wasatch County Sheriff’s Department
for several years, first as a jailor and later as a bailiff
 While working in the jail, she was subjected to offensive
comments about her breasts, saw sexually offensive
material on workplace computers, and frequently heard
graphic sexual conversations
 Kramer’s perception was that male employees who
engaged in such conduct were not punished, but were
instead promoted
Kramer v. Wasatch County Sheriff’s
Office, 743 F.3d 726 (10th Cir. 2014)

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 And that female employees who complained were given
undesirable assignments and otherwise retaliated against
 In 2006, Kramer complained about the sexual harassment
to the sheriff, who told her he’d take care of it
 He convened staff meeting and asked for a volunteer
 Kramer volunteered; the sheriff then reenacted the exact
scenarios Kramer had described to him, using her in the
role of victim
Kramer v. Wasatch County Sheriff’s Office
(cont’d.)

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 The sheriff told the group, “[t]hat’s harassment. Don’t do
it.”
 Kramer found the sheriff’s method humiliating
 The harassment got worse after the meeting
Kramer v. Wasatch County Sheriff’s Office
(cont’d.)

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3. Who knew and when did they know?
– Underreporting by managers and supervisors can potentially
make the company liable
– Penn State coaching staff
– USA Gymnastics Organization
– Harvey Weinstein’s organization? His brother and business
partner?
– Bystander training is critical
Other Lessons – The Company Can Be
Liable for What It Knows

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 Hostile work environment
– Can be created by managers, employees, temp workers, clients or
vendors—anyone in the “workplace”
– A company “condones” a hostile work environment if the company
does not stop it – you play a critical role in stopping it
– The company can only stop it if it knows about it
Hostile Work Environment

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4. Trend for outside parties to require sexual harassment
policies and procedures
– Some industries are passing standards—Screen Actors Guild
Code of Conduct
– Some contracts require policies of vendors, contractors, and
others
– Some companies are making their policies public—Facebook
Other Lessons—
Industry Requirements

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5. Public claims
– How will the company respond?
– We take this seriously
– We will investigate
– We will take action if appropriate
– Follow through
– Using a media consultant or PR expert if needed
Other Lessons—
Going Public

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6. Complaints of historic sexual harassment and/or assault
– Harvey Weinstein
– Roger Ailes (former CEO of Fox News, now deceased)
– Bill Cosby
– Peyton Manning (offensive episode occurred when he was 19
years old)
– Charlie Rose (Charlie Rose Show, CBS This Morning, 60
Minutes)
Other Lessons—
Claims Don’t Go Away

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7. New Legal Claims
– Watch for lawyers to get creative
– Chubb Insurance brought a lawsuit asking the court to declare
that it does not owe Harvey Weinstein or his company
coverage for the litigation under dozens of liability policies
– New York Attorney General has filed civil rights lawsuit against
the Weinstein Company for not protecting its employees
– New lawsuit that Ashley Judd filed against Weinstein
Other Lessons--
New Legal Claims

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8. What if criminal conduct is alleged?
– A company should contact the police if criminal conduct is
alleged and the police have not already been contacted
– The company should cooperate in any criminal prosecution
– The company should conduct its own investigation
Other Lessons—
Criminal Conduct

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9. Tackling the issue of consensual relationships?
According to 2018 CareerBuilder survey (conducted online from
11/28 through 12/20/17)
– 36% of employees have dated a co-worker (compared to 41%
the prior year)
– 30% have dated someone in a higher position (up from 29%)
– 22% have dated their boss (up from 15%)
– 31% of workers who started dating at work ended up getting
married
Other Lessons--
Addressing Consensual Relationships

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 What is the workplace?
 What about after work events?
 What about private events with co-workers?
 What about texts?
 What about social media?
Where Can Discrimination or
Harassment Take Place?

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 Consensual Romantic Relationships Among Co-Workers
– Companies need to decide on a policy
– It could include no romance among co-workers
– Or just no romance between supervisors and subordinates
– Disclosure of romance—company decides
– Love contracts
– What happens when love goes wrong
Consensual Relationships

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 10. Victims are claiming that confidentiality clauses have perpetuated
the problem
– Stormy Daniels and “hush payments”
– Perpetrator may be allowed to have multiple violations in one organization
– Passing the perp to new organizations
– California is considering prohibiting confidentiality clauses
– Microsoft eliminated forced confidential arbitration in sexual harassment claims
– Washington State just prohibited nondisclosure agreements
– New tax law prohibits companies from taking tax deductions for payments (and
attorneys fees) made in sexual harassment cases if the settlement includes a
confidentiality clause
– Expect more in this area
Other Lessons:
The War on Confidentiality Clauses

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11. Addressing the backlash
– “I don’t know what is legal”
– “Can I tell a woman she looks nice?”
– “I’m just going to stop working with women”
– “I’m never going to be alone with a woman”
– Address this head on
Other Lessons—
The Backlash

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 Begin investigation (internal or external)
 Make it clear to the parties that an investigation is being conducted
 Document, document, document
 Remember: the objective of the investigation is not necessarily to
determine whether any law has been violated; rather, it is to determine
whether any company policy has been violated and whether any
employee has engaged in conduct that the company deems
unacceptable in the workplace
 Discipline per company policy
What If You Receive a Report?

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 Let the parties know that you cannot guarantee a particular result, but
you can guarantee a fair process
 Maintain impartiality
– Neither what “he said” nor what “she said” should be given any more
or less weight, without first considering all of the relevant witness
reports, evidence, and other circumstances
– Even when dealing with frequent complainer or a “squeaky wheel”
 Give all employees an opportunity to share their side of the story
 Identify witnesses and take statements
Internal Investigations

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At the outset:
– Explain the process, and emphasize retaliation is prohibited
– Set expectations
– Start by showing willingness to believe and then listen
– Ask clarifying questions and if something doesn’t make sense, ask
for supporting evidence
– Save tough questions for a later follow up — do not cross-examine
the complaining party
– Reiterate expectations
Internal Investigations

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 What if the “situation” resolves itself before the investigation is
concluded?
– For example, perhaps the complaining employee has been
transferred to a new location and will no longer report to the alleged
harasser, or the alleged harasser has resigned from his or her
employment with the company, or the complaining employee has
recanted his or her report of harassment
 Finish the investigation!
Internal Investigations

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 What if the alleged perpetrator denies the allegations and
there are no corroborating witnesses or other
corroborating evidence?
(And, as we know, this is not uncommon)
 Then the company needs to make credibility
determinations
Conducting the Investigation

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In 1999, the EEOC issued “Enforcement Guidance on Vicarious
Employer Liability for Unlawful Harassment by Supervisors,”
which contains guidance on “credibility determinations”:
“If there are conflicting versions of relevant events, the employer
will have to weigh each party’s credibility. Credibility
assessments can be critical in determining whether the alleged
harassment in fact occurred.
EEOC Enforcement Guidance

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“Factors to consider include:
–Inherent plausibility: Is the testimony believable on its
face? Does it make sense?
–Demeanor: Did the person seem to be telling the truth
or lying?
–Motive to Falsify: Did the person have a reason to lie?
EEOC Enforcement Guidance (cont’d.)

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–Corroboration: Is there witness testimony (such as
testimony by eye-witnesses, people who saw the
person soon after the alleged incidents, or people who
discussed the incidents with him or her at around the
time that they occurred) or physical evidence (such as
written documentation) that corroborates the party’s
testimony?
–Past record: Did the alleged harasser have a history of
similar behavior in the past?
EEOC Enforcement Guidance (cont’d.)

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“None of the above factors are determinative as to
credibility. For example, the fact that there are no
eyewitnesses to the alleged harassment by no means
necessarily defeats the complainant’s credibility, since
harassment often occurs behind closed doors.
Furthermore, the fact that the alleged harasser engaged in
similar behavior in the past does not necessarily mean that
he or she did so again.”
EEOC Enforcement Guidance (cont’d.)

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 But, what if, even after assessing credibility, the company
concludes that the investigation is inconclusive?
 In that case, the company should consider:
– Ongoing monitoring
– Altering the reporting relationship (but be careful to avoid
liability for retaliation)
– Workplace training on issues implicated by the investigation
Conducting the Investigation (cont’d.)

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Regardless of the outcome, keep the conclusions/reports as
private as possible and share the outcome of the
investigation only with those persons within the organization
who have a business reason to know. This means always
sharing the conclusion of the investigation with the
complainant and the accused.
Concluding the Investigation

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 Derek Langton
801.536.6704
dlangton@parsonsbehle.com
Thank You