In Light of the #MeToo Movement, Employees are Becoming More Aware of Their Rights and Options When Faced with Sexual Harassment in the Workplace
By Shannon Brennan
In the last year, high profile cases of sexual harassment and assault by men targeting women have drawn attention to the pervasiveness of the problem, particularly in the workplace.
Far too many women can relate. While the phrase, “me too” was being used on social media as early as 2006, it became a hashtag in October 2017 when women began an outpouring of #MeToo on Facebook and Twitter about their experiences of sexual assault and harassment.
According to preliminary information just released by the Equal Employment Opportunity Commission (EEOC), the commission filed 41 sexual harassment lawsuits in fiscal year 2018, a 50 percent increase from 2017. The EEOC recovered nearly $70 million for the victims of sexual harassment through litigation and administrative enforcement, up $47.5 million from the previous year. Charges of sexual harassment also increased by more than 12 percent.
Burt Whitt, a Norfolk attorney who represents employers in harassment cases for Kaufman & Canoles, said employers are realizing this is serious business. “We’re getting more and more requests for training, which is a good thing,” he says. “They understand that the #MeToo movement has highlighted the awareness.”
According to the EEOC website, it is unlawful to harass a person (an applicant or employee) because of that person’s gender. Harassment can include unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment of a sexual nature.
Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s gender. For example, it is illegal to harass a woman by making offensive comments about women in general. Both victim and harasser can be either a woman or a man, and the victim and harasser can be the same sex.
Although the law doesn’t prohibit simple teasing, offhand comments or minor isolated incidents, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision such as firing or demotion.
The harasser can be the victim’s supervisor, a supervisor in another area, a coworker or someone who is not an employee, such as a client or customer.
Prevention is key, Whitt says. An employee handbook should have a detailed policy that explains the EEOC rules, and employees should be given sexual harassment training to reinforce that understanding. Training supervisors is particularly important, he notes. Training should be available regularly in business with high turnover.
The EEOC has seen major demand for its new training program, “Respectful Workplaces,” launched in October 2017. More than 9,000 employees and supervisors participated in the first year.
If an employee files a complaint, the company should do a thorough investigation and talk to witnesses, if there are any, Whitt says. It’s best if the matter can be solved internally. He cautions that employers can get into trouble if they merely discipline, rather than discharge, an employee who has harassed another employee. If the harasser later gets another complaint, the employer’s risk of liability and negligence increases.
Whitt also notes that employers need to be careful about company parties or overnight retreats and business trips. “One area that causes headaches for employers is off-site activities where alcohol may be involved,” he explains. “You would think we would all act like adults, but alcohol sometimes keeps that from happening.”
Women who think they have been harassed should file complaints with their employer, Whitt says, because if they attempt to file a lawsuit without first giving the employer a chance to take corrective action, the courts are not likely to look favorably on the complaint.
Another type of harassment arises when consensual relationships on the job go sour. Employers should try to ensure that if employees are dating, one does not report to the other. In some cases, that may require moving one employee to a different supervisor or a different location. Whitt notes that even if the relationship doesn’t go badly, there could still be the perception of preferential treatment.
Because the degree of misconduct or sexual harassment varies widely, employers need to ensure they respond appropriately. An occasional off-color remark is clearly less serious than direct contact. “A lot of the #MeToo instances involve inappropriate touching,” Whitt notes. “If that happens in the workplace, that’s going to cause the most immediate reaction.”