The trend is up for EEOC class-based sexual harassment investigations. Jayde Ashford Brown, with Hunton Andrews Kurth, reviews recent cases and offers tips on how employers can establish an anti-harassment workplace.
….Training isn’t the only place most sexual harassment programs fall short. Lilia Cortina, a professor of psychology, women’s studies, & management at the University of Michigan, has found that many organizations flounder in how they handle complaints. Cortina’s research reveals that companies’ formal grievance systems fail for four reasons: they are rarely used; people who file complaints regularly face retaliation; retaliation has negative long-term career and health consequences; and formal complaints rarely lead to the removal of the harasser. Filing a complaint can do more harm than good, if it does anything at all.
Given that current efforts to address workplace sexual harassment are clearly not working, what does an effective program look like? Cortina said the starting point has to be a commitment from leadership to meaningful cultural change, rather than checking a box or looking for a quick fix….
…..When harassment is identified, it’s important that discipline is consistent and does not give the appearance of undue favor. For example, the EEOC found that companies that successfully created a culture of non-harassment “acknowledged and owned” complaints, instead of attempting to bury them, and were willing to hold high-ranking and highly-valued employees accountable. In addition, studies show that harassment thrives in workplaces where there’s a stark power imbalance between men and women, so hiring and promoting more women, and compensating them equitably, can undermine the root causes.
There may always be people who abuse their power and act badly in opportunistic situations, but that doesn’t mean organizations are powerless to stop them…..
For 30 years, we’ve trusted human-resources departments to prevent and address workplace sexual harassment. How’s that working out?
…The experience left me with a question: If HR is such a vital component of American business, its tentacles reaching deeply into many spheres of employees’ work lives, how did it miss the kind of sexual harassment at the center of the #MeToo movement? And given that it did, why are companies still putting so much faith in HR? I returned to these questions many times over the course of the following year, interviewing workplace experts, lawyers, management consultants, and workers in the field.
Finally, I realized I had it all wrong. The simple and unpalatable truth is that HR isn’t bad at dealing with sexual harassment. HR is actually very good at it…..
…..But the real reason many workers don’t love human resources is that while the department often presents itself as functioning like a union—the open door for worker complaints, the updates on valuable new benefits—it is not a union. In a strong job market, HR is the soul of generosity, making employees feel valued and significant. But should the economy change, or should management decide to go in another direction, HR can just as quickly become assassin as friend…..
….If employers judged HR departments by their ability to prevent sexual harassment, most would have gotten a failing grade long ago. What HR is actually responsible for—one of the central ways the department “adds value” to a company—is serving as the first line of defense against a sexual-harassment lawsuit. These two goals are clearly aligned, but if the past year has taught us anything, it’s that you can achieve the latter without doing much of anything at all about the former…..
Alicia Garza’s phone never stops ringing. The Black Lives Matter co-founder now leads Supermajority, a women’s political-training organization, along with a roster of female organizers including Cecile Richards, the former Planned Parenthood Federation of America president. The two have dedicated their efforts to building women’s political power in the U.S., a mandate that means near-constant communication with interested folks across the country. ….
Breaking Barriers: Women Defining Leadership
Source: Aspen Ideas Festival, Session, 2019
In every field — business, politics, science, tech, and sport — women are breaking barriers in unprecedented numbers. Women CEOs frequently outpace their male counterparts in delivering profits, women are at the forefront of scientific research (CRISPR, anyone?), and women coaches exceed expectations for leading teams … of men. As more women have taken up posts in DC than in any time in our history, are women experiencing a “moment,” or have the pressures for gender equality and compensation finally achieved results? Remarkable leaders from diverse backgrounds share their views on what it means to break barriers.
Why Women Now
Source: Aspen Ideas Festival, Session, 2019
In the post #MeToo era, the potential to shift women’s political, economic, and philanthropic power is profound. How will this activism be harnessed to fundamentally change our nation’s course? What is the agenda for women going into the 2020 elections? Can a broader consensus in support of women’s issues be mobilized? Fundamental concepts of diversity and inclusion are being crafted in whole new ways by corporate leaders who are responding to cultural pressures and market opportunities. Where will this momentum for an inclusive and diverse agenda lead and who will lead it?
From the press release:
Social justice movements, such as the Fight for $15, #MeToo, and striking Uber drivers, rely on workers to come forward to assert their rights—but workers who dare challenge an employer’s policies or misconduct know that they will almost certainly face retaliation. Even highly-paid Google workers have been forced to protest retaliation following a mass walkout criticizing Google’s handling of sexual harassment. A new NELP survey of laws in all 50 states and the District of Columbia shows, however, that state laws overwhelmingly fail to provide workers with essential retaliation protections.
In Exposing Wage Theft Without Fear: States Must Protect Workers from Retaliation, NELP offers a first-of-its-kind analysis focusing on how state laws protect—or fail to protect—workers when they challenge wage theft by lodging complaints with employers or government agencies, filing lawsuits, or engaging in public actions, for example…..
Source: Alex Press, Vox, May 9, 2019
…. Numbers released by the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing civil rights laws against gender, race, religious, and other forms of workplace discrimination, show that even as the overall number of complaints received is down 9.3 percent from 2017, complaints about sexual harassment rose 13.6 percent over the previous year. ….
Number of sexual harassment charges filed with the EEOC jumps 13.6%
Retaliation was again the type of discrimination charge most frequently filed with the Equal Employment Opportunity Commission (EEOC) in fiscal year 2018, followed by allegations of sex, disability and race discrimination, the agency reported.
Among the 76,418 total workplace discrimination charges the agency received the last fiscal year, 39,469 were for retaliation, accounting for nearly 52 percent of all charges filed. Discrimination based on sex was the second most frequently filed charge, with 24,655 charges received…..
Source: Amy J. Traub and Amanda Van Hoose Garofalo, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
It is clear that the #MeToo movement has spurred many actions from all sides, but we likely will not know its full impact for years to come. The authors of this article review the inception of the #MeToo movement and how things have changed since the movement began.
It has been more than a year since the allegations against Harvey Weinstein broke in The New York Times, which unleashed one of the largest social media-driven movements seen to date: #MeToo. #MeToo did not confine itself to social media; instead, the individuals driving this movement screamed from their social media platforms until real change occurred – not just small changes made to appease some current fad, but truly dramatic changes that have shifted the way employers and the law handle sexual harassment claims….
California Employers Face Raft of New #MeToo Laws
Source: Benjamin M. Ebbink, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
The author of this article provides a complete summary of all of the relevant labor and employment legislation recently signed—and vetoed—in California….
What Employers Need to Know About Delaware’s New Anti-Sexual Harassment Law
Source: Zachary R. Davis and Jennifer A. Ermilio, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
A new law expands the Delaware Discrimination in Employment Act to add a section on sexual harassment. In addition, a recent federal court case makes compliance even more important for Delaware employers (as well as those in New Jersey and Pennsylvania). This article provides a brief summary of Delaware’s new anti-harassment law and the case, along with compliance tips for employers…..
Many Changes Lie Ahead for Companies in the #MeToo Era
Source: Charrise L. Alexander, Employee Relations Law Journal, Vol. 44, No. 4, Spring 2019
For a very long time, companies dealt with sexual assault and harassment allegations quietly and in backrooms. However, thanks to the turning tide, more companies are reexamining their internal policies, encouraging change in corporate culture, and addressing sexual assault, harassment, and discrimination claims more directly. The author of this article discusses the changes and recommends that a good insurance program be a part of those changes.
…. While researching a book on the duty of loyalty, I realized that the #MeToo movement isn’t merely a rift in the ordinary order of workplace relationships in the United States. It is part a larger legal and cultural shift that has been in the works for decades.
The duty of loyalty is the idea that you “cannot bite the hand that feeds you and insist on staying for future banquets,” as an American labor arbitrator wrote in 1972.
It’s a bedrock principle that courts apply to employment disputes, even if you didn’t sign a contract promising to keep an employer’s secrets.
The duty of loyalty is why employers can demand that you sign a confidentiality agreement at the start of employment. It’s why workers can’t download their employer’s trade secrets on a thumb drive and use it in their new job. And why companies are able to persuade judges to enforce noncompete agreements. ….
People from all walks of life – from hotel housekeepers to famous actresses – are stepping forward to confront sexual harassment and violence. Yet too often, forced arbitration clauses buried in everyday contracts help companies cover up sexual harassment and violence. These forced arbitration clauses prevent survivors from fighting back. Forced arbitration clauses are buried in the fine print of many employment contracts and strip away our right to challenge wrongdoing in court. In private arbitration, companies often choose and pay the arbitrator. There is no judge, no jury, no public record, and no meaningful chance to appeal the arbitrator’s decision – even if the arbitrator gets the facts wrong or ignores the law.