DON’T LET ME TOO HAPPEN TO YOU

1. Abuse of Power Produced the Me Too Movement.

In the past three years, many well-known executives and personalities have made headlines because of their unwelcome conduct directed at female associates.  Roger Ailes resigned from Fox News on July 22, 2016 after more than 20 female accused him of sexual harassment, including a lawsuit that produced a $40 million settlement with former anchor Gretchen Carlson.  On April 19, 2017, Fox News fired  Bill O’Reilly several days after the New York Times had reported that either Fox News or Mr. O’Reilly had paid, at least, five women a total of about $13 million to settle their sexual harassment claims and to keep the details of their claims confidential.  On October 8, 2017, Weinstock Company fired Harvey Weinstock three days after a New York Times article revealed that he had settled sexual harassment or sexual assault claims with, at least, eight women.  By October 30, 2017, over 80 women had made allegations of rape, sexual assault, and sexual harassment against him.  On October 23, 2017, NBC fired Mark Halperin, a print and television political journalist, after 12 women accused him of sexual harassment or assault. On November 14, 2017, each of CBS, PBS, and Bloomberg terminated their agreements with Charlie Rose after, at least, eight women alleged sexual harassment complaints against him.  On November 29, 2017, NBC fired Matt Lauer following allegations of his having sexually harassed a female employee during the 2014 Winter Olympics.  NBC further stated that it had reason to believe that other incidents had also occurred.  On April 26, 2018, a jury convicted Bill Cosby of three counts of aggravated indecent assault and more than 50 women have accused him of sexual assaults.

Although the vast majority of the celebrities and executives associated with the Me Too movement have involved males accused of sexual harassment or sexual assault against females, several instances of same sex sexual harassment and sexual assault involving males have occurred.  On October 29, 2017, the first of fifteen men accused actor, Kevin Spacey, of sexual assault and other sexual misconduct. On November 4, 2017, Netflix fired Mr. Spacey terminating his role on its House of Cards television show.  Similarly, the New York Metropolitan Opera Company fired James Levine, a conductor, on March 12, 2018 after several men accused him of sexual assault when they were adolescents.

The foregoing chronology only scratches the surface of powerful men who have lost their positions, because they subjected other persons who lacked power to either sexual harassment or sexual assault.  A more exhaustive list appears here: <  https://www.necn.com/news/national-international/The-Powerful-Men-Accused-of-Sexual-Harassment-452785093.html >.   The stories of these powerful men and their victims reveal a fundamental truth about sexual harassment.  It uses sex as a means by which a more powerful person dominates a less powerful one.  Workplaces gather people into groups in which some workers have power over others, either formally or informally.  These power differentials may foster environments conducive to sexual harassment.  The culture of a workplace largely determines whether they do so.

2. Sexual Harassment Takes Place in Workplaces Everywhere.

The Me Too movement has produced headlines in the entertainment industry primarily.  Statistics compiled by the Equal Employment Opportunity Commission (“EEOC”) show a problem broader than any one industry.  The EEOC typically receives between 80,000 and 90,000 discrimination charges annually.  In fiscal year 2018, the total number of discrimination charges filed equaled 76,418.  Of those charges, 24,655, or 32.3% of them, alleged sex discrimination claims.  Sexual harassment charges comprised 7,609 of the sex discrimination charges, or 30% of all sex discrimination charges and about 10% of all discrimination charges.  Males filed 15.9% of charges alleging sexual harassment.  About 35% of all charges filed alleged unlawful workplace harassment because of one or more of color, race, sex, disability, ethnicity, national origin, or religion.  The EEOC recovered nearly $70 million for sexual harassment victims through administrative enforcement and litigation in fiscal year 2018 in comparison to its recovery of $47.5 million in fiscal year 2017.

3. Culturally Aware Employers Recognize and Offset the Effects of Known Sexual Harassment Situational Awareness Risk Factors.

In 2016, the EEOC released a report compiled by its Select Task Force on the Study of Harassment in the Workplace (“Task Force”).  < https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm >.   It identified eleven factors that accompany an increased risk of workplace sexual harassment.  The report observed that most workplaces contain, at least, some of the risk factors.  It further emphasized that the presence of these risk factors does not necessarily mean that the workplace currently has ongoing sexual harassment.  The report, instead, viewed the presence of one or more of the risk factors as an indicator that the workplace may offer “fertile ground for harassment to occur.”  It urged employers to “pay extra attention in these situations, or at the very least be cognizant that certain risk factors may exist.”

The eleven risk factors include:

1. Homogeneous workforce. A lack of diversity in the workplace creates circumstances conducive to sexual harassment. The only female or one of a handful of them in a predominantly male workforce or department may feel or actually be isolated from her male co-workers.  Males may perceive such a female co-worker to be vulnerable and exert pressure on her.  In some instances, males may alternatively view an isolated female worker as “different” or “other” and to perceive her as a threat.  Male workers may fear that their jobs are at risk or that the workplace culture may change, or they may experience anxiety working around others not like them.
2. Workplaces where some employees do not conform to workplace norms. Where one or a few female workers joins a workplace in which males predominate, a woman co-worker frequently challenges the stereotypes that have created workplace norms.  A female worker may disrupt gender norms by being “tough enough” to do a job traditionally done by men.  An effeminate male working in a predominantly male work environment permeated by crude language and sexual banter may also unsettle workplace norms.
3. Cultural and language differences in the workplace. Distinctly diverse workplaces also pose a risk factor for harassment. For example, some workplaces experience an influx of individuals with different cultures or nationalities rapidly or have significant blocs of workers from different cultures.  The employees in these distinct groups may have very different understandings of workers’ legal rights and workplace norms, which can affect both their behavior and their ability to recognize prohibited conduct, such as sexual harassment.
4. Coarsened social discourse outside the workplace. External events may pose a risk factor that employers need to consider and proactively address. For instance, after the 9/11 attacks, incidents of workplace harassment based on national origin and religion increased.  Thus, events that occur outside of the workplace may cause irrational fears, such as fear of Muslim workers after 9/11 by non-Muslim workers, which heightens the risk of non-Muslim workers harassing Muslim workers because of their religion.
5. Young workforces. Workers in their first or second jobs may lack any awareness of laws and workplace norms.   A workforce with both experienced workers and young workers in their first or second job may raise the risk of harassment.  On the one hand, young workers who harass others may lack the maturity to understand or care about the consequences of their behavior.  On the other hand, young workers who suffer harassment may lack the self-confidence to resist unwelcome advances or to challenge conduct that causes them to experience anxiety.  Older and more established supervisors or co-workers may take advantage of the insecurities of unskilled and precarious younger employees.
6. Workplaces with “high value” employees. Senior management may allow their high-value employees to violate workplace rules without challenging their behavior. If the employer perceives a worker as a “high value” employee, it may also overlook the bad behavior of such an employee. Rainmakers or superstars frequently enjoy the benefit of the doubt, at least, and often times the benefit of can do no wrong.  Such high value employees may believe that the employer’s rules, including those that prohibit sexual harassment, do not apply to them.
7. Workplaces with significant power disparities. Most workplaces have a hierarchy of groups. Those at the top of the food chain generally exercise power over those below them.For example, executives frequently share a workplace office area with administrative staff personnel.   Similarly, plant managers and assembly or warehouse workers typically work in the same plant or warehouse.  High status workers may exploit their power to harass low status workers.  Low status workers may have little to no understanding of internal complaint procedures and may also fear that complaints will produce reprisals, such as their firing.  Where gender differences accompany power differences, such as a male executive group and a female administrative group, harassment occurs more frequently.
8. Isolated workplaces. Isolated work areas put workers in vulnerable places without other co-workers in the vicinity.  Harassers have easy access to such employees with no one else present to witness the harassment.  Examples include: housekeepers in individual hotel rooms, janitors working alone on the night shift, and agricultural workers in fields.  Employers, however, must avoid jumping to conclusions on the basis of the presence of a risk factor when confronted with a complaint.  For instance, a hotel maid’s alleged that IMF Managing Director, Dominque Stauss-Kahn, sexually assaulted her in his hotel room.  He resigned his position after a grand jury indicted him for sexual assault and attempted rape in May 2011.  In August 2011, however, the judge dismissed all charges against Mr. Strauss-Kahn in accordance with the District Attorney’s recommendation, which asserted the complainant’s untruthfulness had undermined her credibility.
9. Workplaces that tolerate or encourage alcohol consumption. Work cultures that tolerate or encourage alcohol consumption pose significantly greater risks of reduced social inhibitions, impaired judgments, and hostile work environment sexual harassment. Some workplaces limit alcohol consumption to one or two occurrences annually, such as a holiday party. Others involve frequent alcohol consumption in connection with client entertainment or social interaction.
10. Decentralized workplaces. Workplaces where long distances separate corporate offices from front-line employees or first-line supervisors. Limited communications between organizational levels characterize decentralized workplaces.  Examples include retail stores, chain restaurants, and distribution centers.  Typically, the operating units have little oversight from the corporate headquarters.  The front line supervisors operate independently from the corporate headquarters.  Some managers take advantage of their independence by ignoring, at least, some corporate workplace rules.  Others may lack an understanding as to how to address workplace harassment issues and choose to handle them on their own instead of contacting headquarters for direction.
11. Tips and commissions may encourage abusive conduct by customers. Compensation systems with direct connections to a worker’s customer service may put the worker at risk for harassing behavior by customers.  Tipped workers may tolerate unwelcome sexual advances and other sexually motivated conduct by customers to avoid adverse effects on customer tips.  Workers paid by commissions may ignore a customer’s unwelcome sexual advances or other conduct to close a sale.  Management, moreover, may tacitly tolerate sexually harassing behavior by customers rather than intervene on the worker’s behalf.

4. The Law Recognizes Two Distinct Types of Sexual Harassment.

Sexual harassment law finds its source in Title VII of the Civil Rights Act of 1964.  Specifically, Title VII prohibits employers with 15 or more employees from discrimination on the basis of sex, race, color, national origin, and religion. The original bill that became Title VII barred discrimination on the basis of race only.  Representative Howard W. Smith, a Virginian Democrat, who opposed the legislation, amended the bill to add sex as a protected status.  He did so as a “poison pill.”  Mr. Smith believed northern legislators would abandon their support for the bill if it prohibited not only racial but also sexual discrimination.  They, however, disappointed him and ultimately the bill that Congress passed prohibited not only race and sex discrimination, but also discrimination on the basis of color, national origin, and religion.

Title VII lacks any text that specifically prohibits sexual harassment.  The EEOC’ s regulations and case law have derived the law prohibiting sexual harassment from Title VII’s prohibition against sex discrimination.  Sexual harassment has two analytically distinct types.  First, quid pro quo, or tangible benefits, harassment requires an exchange between the harasser and the victim—literally an exchange of this for that.  Typically, the harasser conditions the granting of a tangible employment benefit, such as a pay raise or a higher job performance rating, on the victim’s acquiescence to the harasser’s demand for sexual favors, such as a kiss, hug, or more intimate relations.

To prove a prima facie case of quid pro quo sexual harassment requires the claimant to prove:

1. The victim’s membership in a protected class,
2. The harasser’s unwelcome sexual advances,
3. The victim’s sex motivated the unwelcome sexual advances, and
4. The victim’s rejection of the advances affected tangible aspects of her or his employment, such as pay, rank, working hours, or other conditions or privileges of employment.

The law imposes strict liability on an employer for quid pro quo sexual harassment, because the harasser always involves a supervisor.  Only supervisors can alter the tangible aspects of a victim’s employment, because their decisions bind the employer under agency principles.

The second type of sexual harassment concerns hostile work environment sexual harassment.  A claimant must prove the following essential elements to state a claim:

1. The harasser directed unwelcome or offensive conduct at the plaintiff.
2. That conduct had a severe or pervasive character, both objectively and subjectively.
3. The plaintiff’s sex motivated the harasser’s conduct.
4. The harassing behavior created a hostile or abusive work environment.
5. The hostile work environment unreasonably interfered with the plaintiff’s ability to do her or his job.

The law holds employers strictly liable for hostile work environment sexual harassment caused by a supervisor, unless they prove the Faragher/Ellerth affirmative defense.  It applies a negligence standard to determine whether employers have liability for hostile work environment sexual harassment attributable to co-worker conduct.

The public policy embodied in the federal employment discrimination laws expects employers to prevent employment discrimination. The Supreme Court has recognized the Faragher/Ellerth affirmative defense to encourage employers to undertake actions to prevent hostile work environment sexual harassment.  First, the employer must prove that it took reasonable steps to prevent unlawful harassment and to correct any such harassment promptly.  Second, the employer must also establish that the employee unreasonably ignored any preventative or corrective opportunities that the employer offered or failed to avoid harm otherwise.   This affirmative defense relieves the employer of liability for a supervisor’s sexual harassment that lacks any tangible adverse employment action, such as demotions, pay cuts, or dismissals.  Thus, a well-publicized anti-harassment policy, a competent complaints procedure and effective training enable employers to prove that they have taken reasonable steps to prevent unlawful harassment and to correct any such harassment brought to the employer’s attention promptly.

5. To Avoid Me Too Situations, Employers Must Not Only Implement a Well-Publicized Anti-Harassment Policy, a Competent Complaints Procedure and Effective  Sexual Harassment Training, But They Must Also Promote a Work Culture of Civility and Shared Responsibility.

The Faragher/Ellerth affirmative defense rewards employers who broadcast their ant-harassment policy widely and  implement effective complaints procedures.  Either an open door or a more formal complaint procedure works well only if an open mind sits behind the open door or other procedures.  The procedure should allow several alternative ways to make a complaint to avoid a process that requires a complainant to raise a complaint first with person whose behavior has prompted the complaint.  Toll free telephone reporting services or online complaint portals only work if the employer follows up with a competent and fair investigation. Third party investigators may avoid kangaroo court perceptions of the employer’s investigatory process.  The process should allow anonymous complaints. It should also encourage employees to bring their complaints forward without fear of reprisals.  If a workplace has rumors or “open secrets” consistent with a hostile sexual work environment, then the process may define the sorts of conduct about which employees may complain too narrowly.  If an investigation of a complaint confirms that sexually harassing conduct has occurred, the employer must implement prompt remedial action.

In addition, employers should conduct sexual harassment training for both employees and supervisors.  Upon hiring, each new employee should complete such training during her or his orientation.  Similarly, whenever an employee assumes a supervisory position, she or he should complete the employer’s sexual harassment training for supervisors.  The employer, furthermore, should conduct ongoing sexual harassment training for both employees and supervisors, at least, annually.

The training programs should share the following characteristics:

1. Live and interactive training works best.
2. Training should address the specific realities of the employer’s workplace, rather than involve a one size fits all approach.
3. Training should clarify what types of conduct violate the employer’s sexual harassment policy and also what sorts of behavior do not.
4. It should educate employees about their rights and responsibilities if they experience or witness conduct that the employer’s policies prohibit.
5. Training should explain the employer’s complaint process and its policy prohibiting retaliation against those who make complaints.

Apart from the employer’s training program, an annual anonymous employee survey can help employers to identify problems.

The EEOC views the conduct that produces unlawful harassment as part of a larger issue, namely, workplace incivility.  It urges employers to conduct training that promotes respect and civility as a means of reducing bullying or workplace conflict.  According to the EEOC, incivility often precedes workplace harassment and can create a climate of general derision and disrespect that tolerates harassing behaviors.  Civility training addresses positive behavior that establishes civility and respect as fundamental workplace expectations.  It tells employees and managers what they should do, rather than what they should not do.  The EEOC recommends the inclusion of interpersonal skills training, conflict resolution training, and effective supervisory techniques training in a workplace civility training program.  An effective civility training program can transform a workplace culture from one that tolerates sexual harassment to one where workplace norms establish the treatment of others with dignity and respect.  Such a cultural norm diminishes the likelihood of sexual harassment, because workers perceive sexually harassing behavior to be abnormal and deviant.

The EEOC also advocates the adoption of bystander intervention training as a way to make anti-harassment training more effective.  It creates awareness that enables bystanders to recognize problematic behaviors.  Such training also instills a sense of collective responsibility that motivates bystanders to step forward and take action when they see problematic conduct.  The training includes skills building exercises to give bystanders the skills and confidence to intervene as appropriate.  Finally, it identifies the resources available to bystanders that they can access to support their intervention.  An effective bystander intervention training program supports the transformative effects of a civility training program.  Together they enable employers to determine what sort of cultures their workplaces exhibit—one that tolerates sexual harassment or one that abhors it.