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In the past few years, the #MeToo movement has received a lot of attention, spotlighting a variety of issues that are unfortunately not new. The type of misconduct that we’ve all read about and seen on TV news has been around for decades, despite the laws, policies, and procedures that are meant to prohibit harassment and discrimination in the workplace,
Problems in this arena are not new. The Equal Employment Opportunity Commission (EEOC), the nation’s primary law enforcement agency in this area, published a major report entitled 2016 Select Taskforce on the Study of Harassment in the Workplace. The EEOC report concluded that in order to prevent harassment in the workplace, “training must change” and “new and different approaches to training should be explored.” Instead of merely attempting to avoid legal liability, employers were urged to move towards a more ‘holistic’ approach based on principles of general civility and engaging everyone involved to be active participants in helping to prevent harassment in the workplace.
But what do these conclusions by the EEOC mean for your business today?
Robert O’Hara, Labor and Employment attorney at Epstein Becker Green is an expert in the area of workplace harassment.
The Current Legal Environment
The EEOC has responded to a rising tide of complains by filing several lawsuits against employers, alleging harassment. These lawsuits showed a 50% increase in 2018 from 2017,” O’Hara notes. “Similarly, sexual harassment charges filed with the EEOC increased by 14% last year. In addition, many state and local governments have responded to #MeToo by enacting new laws, such as requiring mandatory anti-harassment training programs, encouraging greater female representation on boards of directors, and eliminating confidentiality in sexual harassment settlements.
Gender pay equity is also a hot-button issue, and state and local governments have already enacted statutes that forbid inquires of salary history in the hiring process, since such inquiries are seen as a way to continue to pay women less than the going rate for certain jobs. Several states including California, New Jersey and Massachusetts have amended or instituted laws to address the issue of equal pay in the workplace to try to level the playing field.
“In response, some employers have taken measures to ensure compliance, from banning mandatory predispute arbitration agreements that cover claims of sex harassment and assault, to increasing the transparency of their compensation programs.
Outlook: What Should Employers Expect in 2019
“Employers should expect to see more administrative charges filed, and increased sexual harassment claims made,” notes O’Hara. “This assessment is based not only on the reported number of claims and lawsuits, but also on anecdotal evidence from conversations with employment lawyers and human resources executives. These claims can pose serious threats to the brand and reputation of an employer. Therefore, C-suite members should consider devoting additional resources to creating healthy, respectful and inclusive workplaces, and train supervisors and staff on appropriate workplace conduct.”
A 2018 study from LeanIn.Org, Women in the Workplace 2018 reported other concerns that are impacted by the cultural awareness raised by #MeToo. The report found that women remain dramatically underrepresented in senior leadership; are often left behind early in their careers without normal paths to advancement; are significantly more likely to be victims of micro aggression at work; and continue to be targets of sexual harassment and intimidation.
“Employers are likely to see increased litigation regarding gender pay equity,” comments O’Hara. “For example, a class action lawsuit was filed in California last November against Hewlett Packard (HP), which alleged that the massive IT company violated California’s Equal Pay Act. According to the complaint, HP discriminated against female employees by compensating them less than their male counterparts for the same jobs, and also steered women into lower paying jobs based on ingrained gender stereotypes. This case was filed under the revised California Equal Pay Act (amended in 2016), which expanded the comparative standard from the generic ‘equal work’ to the much stricter definition of ‘substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.’”
“All of these issues, and probably more that we haven’t seen yet, will be playing out in our workplaces in 2019,” he concludes. “Companies would be smart to stay ahead of the rising #MeToo wave or risk being swamped by bad behavior, bad performance and bad press.”
This means your company should:
- Be ready for inquiries about workplace sexual harassment. O’Hara explains: “If you have an anti-harassment policy in place, make sure it is comprehensive, and describes how an allegation is to be handled, — whom to contact, what to expect, protections from retaliation, etc.”
- Make sure you have a policy. “If you don’t have a policy, you need to create one. In the current climate, it would be inexplicable and inexcusable not to have a robust process that employees can rely on. You need a clear and coherent process when an allegation is made. Who would you tap to do the investigation (HR, Legal, outside counsel?) The answer will depend on the facts presented. The more serious or sensitive the investigation, the more you should consider retaining outside help,” notes O’Hare.
- Train the troops. “Anti-harassment training requirements are already mandatory in several states and the list will only continue to grow,” O’Hare notes. “Get ahead of the compliance curve by anticipating what you will need going forward.”.
- Keep an open mind. “Beyond sex/gender, remember that harassment takes many forms including discrimination or harassment due to race, ethnicity, religion, age, disability, etc.. Your anti-harassment policy should address all forms of harassment, with specifics about what your company expects, and how to report failures to adhere to company standards,” he concludes.
There are many reasons to follow Robert O’Hara’s advice. It’s not just the right thing to do; it’s the prudent thing for today’s businesses looking to reduce risk, bolster employee satisfaction, protect women, and preserve profit.
April 3, 2019 at 04:50PM
Forbes – Entrepreneurs