Addressing Sexual Harassment in the New #MeToo #TimesUp Environment

Parsons Behle & Latimer Idaho Employment Law Seminar
ADDRESSING SEXUAL HARASSMENT IN THE
NEW #METOO #TIME’SUP ENVIRONMENT
Amy A. Lombardo
208.562.4895
alombardo@parsonsbehle.com
parsonsbehle.com
TUESDAY, OCTOBER 9, 2018 | BOISE CENTRE EAST

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I. Overview/Review of Legal Definition of Sexual
Harassment
II. Briefly Describe the “Me, Too” Movement
III. Impacts/Lessons from the “Me, Too” Movement
1. New Focus on ‘What Is Harassment’?
2. How Employers Should Handle Backlash to ‘Me, Too”
3. Corporate Director and Officer Liability
4. Reporting Issues/Workplace Culture
What We Will Cover Today

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I. Impacts/Lessons from the “Me, Too” Movement
5. Investigations Scrutinized
6. Dating at Work
7. Confidentiality Agreements
8. Company Risk: Negative Publicity
9. Criminal Acts
10. New Legal Claims & Arguments
What We Will Cover Today

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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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 Sexual harassment is a form of sex discrimination that
violates Title VII of the Civil Rights Act of 1964 (Title VII), a
federal law.
 Title VII prohibits discrimination on the basis of:
– Sex (including pregnancy and gender nonconformity).
– Race.
– Color.
– Religion.
– National origin.
I. Legal Overview

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 Sex As A Protected Class (15 employees +)
Idaho Human Rights Act Federal Statutes (Mostly Title VII)
Race Race
Color Color
Religion Religion
Gender Gender
National Origin National Origin
Disability Age
Disability
Sexual Orientation (Still in flux)
Gender identity (Still in flux)
Pregnancy
I. Legal Overview

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What is Sexual 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
I. Legal Overview

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Sexual harassment exists in two forms:
 Quid pro quo.
 Hostile work environment.
I. Legal Overview

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 Quid pro quo is Latin and it means "this for that."
 Quid pro quo harassment applies where a supervisor seeks sexual favors
either:
– In return for a job benefit (for example, a promotion or raise).
– To avoid a job detriment (for example, a demotion or pay cut).
 Quid pro quo harassment also occurs when an employee's reaction to an
advance negatively affects his employment.
 Examples:
– A manager tells her employee that she will give him a raise if he goes on a date with her.
– An employee is passed over for a promotion after rejecting her supervisor's
advances.
Quid Pro Quo Harassment

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 Involves harassment in the workplace that is:
– Unwelcome.
– Based on protected class status (sex or gender).
– Attributable to the employer.
– Severe or pervasive enough to change the conditions of employment and create an
abusive environment.
 Need not be targeted at the offended individual to give rise to a hostile work
environment claim.
 Examples:
– Turning work discussions into sexual topics.
– Repeatedly asking out an employee who is not interested.
Hostile Work Environment Harassment

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Who Can Be A Harasser?
 Supervisors.
 Co-workers.
 Customers.
 Clients.
 Vendors.
 Individuals or groups doing business with the company or on the
premises.
I. Legal Overview

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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
Examples of Sexual Harassment

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Sexual harassment comes in many forms and is not limited to
physical actions. Harassment also includes verbal or non-verbal
conduct that rises to the level of being "severe or pervasive."
Examples of sexual harassment include:
 Physical actions, such as:
– Touching or brushing against an individual's clothing, body, or hair.
– Initiating unwanted sexual activity, such as kissing, touching, or hugging.
– Rubbing or touching anyone sexually in the presence of another.
– Exposing oneself.
Examples of Sexual Harassment

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 Verbal actions, such as:
– Repeating requests for a date with someone who has not returned an
interest.
– Telling unwelcome jokes or stories, often with sexual innuendo.
– Initiating unwelcome flirtations.
– Making or using derogatory comments, epithets, slurs, and jokes.
– Making graphic verbal commentaries about an individual's body or using
sexually degrading words to describe an individual.
– Using expressions that can be belittling such as "honey," "dear,"
"sweetheart," or "lady supervisor."
Examples of Sexual Harassment (cont'd)

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 Non-verbal actions, such as:
– Staring or looking someone up and down.
– Blocking or impeding an individual's movement.
– Following someone inappropriately.
– Giving unwelcome gifts.
– Making sexual gestures.
– Displaying sexually suggestive objects, pictures, cartoons, books, or
magazines.
– Winking, blowing kisses, or licking lips.
– Standing or sitting too close to someone.
Examples of Sexual Harassment (cont'd)

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Harasser’s Intent is Irrelevant
 Sexual harassment may be unlawful even if not motivated by sexual
desire.
 Gender is also irrelevant:
– Men can harass women.
– Women can harass men.
– Men can harass men.
– Women can harass women.
I. Legal Overview

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What is Not Harassment?
“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—employees may
still be trained to report this conduct, and should be encouraged to report
conduct for the Company to then decide if the behavior is acceptable or not
I. Legal Overview

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Discrimination on the basis of Gender—Federal and State Law
1. Disparate treatment—treating someone differently because of their
protected class
2. Reasonable accommodation (pregnancy)
3. Retaliation—Retaliating against someone for complaining about
potentially illegal activity, or participating or assisting in the pursuit of a
claim
Sexual Harassment is a type of
Discrimination

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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
II. What Is #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
II. 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
II. What Is #Time’sUp?

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What Are the Origins of These Movements?
 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 issue;
 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
II. What is #MeToo?

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Has the #MeToo Movement Changed
Harassment Law?
 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 –
have changed a lot
II. What is #MeToo?

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Employees are still struggling with what is harassment
How Can Employers Recognize Harassment When
Potential Incidents Are Reported?
– There are lots of gray areas— Ex: “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?
…….Let’s take a look at a real scenario
Impact 1: New Focus on —
What is Harassment?

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INTERNAL COMPANY CHAT
How To Recognize Harassment Scenario
What are you doing tonight?
Where are you staying?
I checked out today…catching
the last shuttle back to DC
before the storm

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Probably not a good idea…
You’ll never make it out.
Better to stay in NY…we can
have a drink!
Hmm…but I only drink milk &
cookies…
[more]
Naw..…too risky.

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There is nothing I would like
more than a good chat
- a great talk with someone I
admire.
But if appearances are a concern
. . . that's valid.

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Later that evening…after missing her flight to D.C., Employee returns
to her work-issued hotel room. Travel status for all employees were in
a central file which every employee could access.
 Employee receives a call that evening: “I’m coming over for
milk and cookies.”
 30 minutes later, knock at the hotel room door.
 Door is opened, employee asks “What are you doing here?”
 Answer: attending a retirement party in the neighborhood.

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 After the exchange, executive walks past employee, sits down on
the sofa in the hotel room suite. Placing his arm on the back of the
sofa, he comments “I like our rat-a-tat-tat.”
 Employee is standing across the coffee table, 4 feet away.
Employee says, “what do you want from me?”
 Response: “an affair of more than passing affection.”
 Employee: “But you’re married and I’m Catholic.”

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 “Don’t tell me you’re like [a co-worker well known for devout
Catholicism]?”
 Employee response: “I am.”
 Executive: pats sofa in gesture to sit next to him.
 Employee: sits, but against the back of the sofa with a throw
pillow, brings up case of sexual harassment in one of the
company’s offices, mentions “that caused a lot of pain.”

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 Executive leaned over, pressed a finger to employee’s lips, and
said “this is our compact.”
 Grabbed [employee] behind [her] neck and tried to force [her]
to kiss him.
 Employee breaks away and says “Tom, I do not want to do this
with you….”
 Executive: “I guess I should go.”
 Employee: “Yeah.”

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 The next day, Executive calls Employee and discusses what
happened the night before in a way that made the evening sound
consensual. Or, as a misunderstanding.
 A few months later, when the two are again working in the same
location, Employee finds a note on her desk that says, “Milk and
Cookies?”
 At what point do you believe these interactions become
problematic? Or are they not a problem? What if we add in the
fact that there was also a reported instance of unwelcome
touching a few months prior to any of this?

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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 2: How Employers Should Handle
Backlash from the #MeToo Movement

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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”
Treating Women in a workplace differently because they are women –
such as refusing to work with women or not including them in certain
out-of-office events, can be evidence of discrimination based upon
gender.
Impact 2: How Employers Should Handle
Backlash from the #MeToo Movement

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The Company Can be Liable for What It Knows.
Q: 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
Bystander Training & Supervisor Training Are Critical
Impact 3: Director & Officer Liability

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The company will be deemed to “know” about the problem if
managers or supervisors know, have seen something, have
heard rumors, etc.
Best Practices to Avoid Harassment Lawsuits & Liability
– Have policies prohibiting sexual harassment
– Include in policies multiple ways for an employee to report harassment
– Train employees on the policies and how to report harassment
– Investigate when there is a report (formal or informal) or any officer or
director or employee has knowledge of possible harassment
– Take action when harassment is found.

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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

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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?

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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

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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

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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)

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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
Impact 4: Workplace Culture & Reporting

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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)

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 Trend for outside parties in certain industries to require
sexual harassment policies and procedures by contract or
otherwise
– 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

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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

47
 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
Impact 5: Employer Investigations Scrutinized

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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

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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

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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!

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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

52
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.

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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?

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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

55
“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

56
 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

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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.

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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
Impact 6: Dating in the Workplace

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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
Impact 6: Dating in the Workplace

60
 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
Impact 7: The War on Confidentiality Clauses

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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
Impact 8: Company Risk – Negative Publicity

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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
Impact 9: Employer Duties When Criminal
Conduct is Alleged

63
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
Impact 10: New Legal Theories

64
 Amy A. Lombardo
208.562.4895
alombardo@parsonsbehle.com
Thank You

Addressing Sexual Harassment in the New #MeToo #TimesUp Environment

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