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The #MeToo Movement and Why Employers Should be Paying Attention

As Published in the February, 2018 Issue of the PELRAS Newsletter

Published on: Thu 8th Feb, 2018 By: Jessica Michael

With the #MeToo movement’s resurgence on social media, sexual harassment scandals abound in the media spotlight. From top Hollywood executives to sports figures and politicians, the impact of this national media attention likely will trickle down to the municipal level. The only question is, what can employers do to prevent becoming the next breaking news story?

Despite all the salacious headlines, nothing has changed an employer’s legal obligations to its employees. Employers still must provide a workplace that is free of discrimination, harassment and retaliation. There are, however, lessons to be learned from #MeToo and the pace at which allegations of harassment are resolved in the public forum. The biggest lesson may be that if an employer tolerates harassment or fails to adequately hold harassers accountable, the risk is not only potential liability in a lawsuit, but trial by media.

The EEOC announced in January its draft strategic plan for the fiscal years 2018-2022 outlining its priorities for enforcing anti-discrimination laws. Among its top six priorities is the prevention of systematic workplace harassment. The EEOC stated that, “Given the current environment that has shed new light on sexual harassment, the EEOC will look specifically to claims that raise a policy, practice, or pattern of harassment.” This means that the EEOC intends to focus its resources on pursuing and litigating sexual harassment claims.

In 2016, the EEOC released its report “Select Task Force on the Study of Harassment in the Workplace.” In it, the EEOC suggested that, because of the number of harassment charges still being filed with the agency, employers’ prevention efforts have been largely ineffective. The EEOC advocates a “reboot” of these efforts to include a three-pronged strategy: 1) “Leadership and commitment to a diverse, inclusive and respectful workplace in which harassment is simply not tolerated”; 2) “policies, reporting procedures, investigations and corrective actions”; and 3) effective compliance and prevention training.

What leadership does is key, according to the EEOC. Behavior that leadership tolerates, recognizes, rewards or reinforces decides the culture of the organization. Leadership must take a visible, active role in its commitment to harassment prevention efforts by holding harassers responsible “in a meaningful, appropriate, and proportional manner,” and rewarding supervisors who respond to complaints and inappropriate conduct.

Revamping training also is crucial in combatting not just illegal conduct, but workplace incivility, which, if left unchecked, could rise to the level of illegal harassment. As one EEOC member who participated in the study said, “Compliance training is not training to change your mind, it’s training to keep your job.”

Compliance training should be tailored to the specific workplace and workforce, and should be conducted by qualified trainers, and live if possible. These training sessions should be conducted regularly, without repetitive content, and should be followed by evaluations at a later date to gauge effectiveness. Employees also should be trained on gender harassment, which may not have a sexual element to it, but instead seeks to degrade a person because of gender. Although the law does not function as a civility code, the EEOC found that general incivility can become a gateway to illegal conduct. Promoting respect and civility in the workplace can aid in prevention efforts.

Employers should look at the training they currently offer, and whether they include all levels of employees; detail not just the law, but the types of unacceptable and acceptable conduct; clearly communicate the policies, procedures for reporting and investigating, and discipline; and provide examples that are drawn from the realities of the workplace. Employers also may consider some innovative training techniques suggested by the EEOC, including workplace civility and bystander intervention training.

By taking preventative measures seriously through leadership, policies and training, employers may avoid an embarrassing public scandal. Additionally, through these measures, employers can create an environment that allows employees to focus on their work, free from the anxiety, fear and frustration of workplace harassment.