Sexual harassment in the age of #MeToo

In the age of #MeToo, now more than ever, employers must take seriously their obligation to prevent sexual harassment in the workplace and to ensure they are providing effective and accessible methods for their employees to report and address concerns. Entities can no longer depend on antiquated reporting and outdated training mechanisms that they have relied on for years.  

The #MeToo movement has heightened the demand upon government agencies to hold employers accountable for workplace harassment that is not only unlawful but also unacceptable. For instance, the United States Equal Employment Opportunity Commission (EEOC) recently announced that in 2018, the agency filed over 50 percent more lawsuits relating to sexual harassment than it did in 2017. In addition, the EEOC saw an increase of 12 percent in charges regarding sexual harassment filed with the agency, amounting to the first increase in this category in the past 8 years.  And according to a recent Minneapolis Star Tribune poll, 63 percent of women and 11 percent of men in the state indicated that they have personally experienced sexual harassment while at work.  Half of those polled also stated that sexual harassment in the workplace is a “major problem.”

There are two recognized forms of legally-actionable sexual harassment: hostile work environment and quid pro quo sexual harassment. According to the present law, a hostile work environment harassment claim is established when unwelcome sexual conduct becomes so severe and pervasive that it adversely affects the employee’s terms or conditions of employment. Quid pro quo sexual harassment, on the other hand, occurs when an employee’s submission to, or rejection of, unwelcome sexual conduct forms the basis for an adverse employment decision, such as suspension or termination. 

Some Minnesota judges and lawmakers have become critical of the severe and pervasive standard that must be established to prove a claim for hostile work environment sexual harassment. At least one Hennepin County judge has called for the courts to revisit the issue of what facts rise to the level of being sufficiently severe or pervasive enough to alter the conditions of the victim’s employment and, thereby, create an abusive work environment.  In his decision, he considered the court decisions from the 1980’s, 1990’s, and early 2000’s to no longer accurately reflect the type of conduct that creates a hostile work environment. Additionally, Minnesota Representative Kelly Moller also rejects the severe and pervasive standard, stating that “Severe or pervasive is such a high bar that things like unwanted kissing, unwanted touching, requesting oral sex, and comparing female employees’ breasts are not considered severe or pervasive in our state.”

Since the #MeToo movement began to raise awareness, there has been a national legislative push, with varying success, to relax the legal standards necessary for an employee to establish a claim for sexual harassment. Some states, such as New York, have passed laws to prohibit the use of non-disclosure agreements (“NDAs”) in settlement agreements related to sexual harassment. New York also requires all employers to adopt and distribute a sexual harassment prevention policy and conduct annual sexual harassment prevention trainings for all employees.

Several versions of a legislative bill are currently being considered in the Minnesota legislature. The House version, which was passed by a 113-10 vote on March 21, 2019, would clarify the definition of sexual harassment by eliminating the severe and pervasive requirement altogether. Instead, the House version would define a hostile or intimidating environment to occur when a reasonable person in similar circumstances would find, and the actual victim subjectively found, the environment to be intimidating, hostile, or materially offensive based on the totality of the circumstances. A separate proposed bill in the state Senate would reject prior federal case law decisions that held that conduct did not rise to the level of actionable sexual harassment if the unwelcome conduct was not severe or pervasive, but would also state that courts should not be called upon to consider legal remedies for every incidence of inappropriate, rude, or offensive behavior either. That bill has been referred to the Senate’s Judiciary and Public Safety Finance and Policy Committee for further consideration. A vote is expected to take place by the end of the 2019 legislative term in May. The result from either bill’s passing would likely allow more employees to raise actionable claims of sexual harassment because they would no longer have to prove that the unwelcome harassment was so severe and pervasive that it affected the terms and conditions of their employment.

In light of these ongoing developments, it is an excellent time for your organization to review and update its sexual harassment policies and training. To safeguard your company, employee handbooks should provide a clear and understandable policy on sexual harassment, including at a minimum: (1) an unequivocal prohibition of harassment; (2) an easy-to-comprehend description of harassment with corresponding examples; (3) a clear, confidential and secure reporting system; and (4) an assurance of prompt action from the organization. 

But even a well-drafted policy will fall short if the organization does not actively promote and enforce its policy. Training is, therefore, critical and necessary. Effective training must start at the highest levels of the organization with leaders who not only “talk the talk” but also “walk the walk.” Training should be interactive and encourage engaging in discussion within all levels of the organization. While executive management should ideally conduct the training, it is imperative that they attend and promote it at the very minimum. To reach maximum effectiveness, training should be repeated and reinforced regularly and be specifically tailored to fit the needs of the organization. In other words, “one size does not fit all.”

The impact of #MeToo has reverberated throughout all levels of society and will continue to do so.  In order to protect your organization, management must make sure that every employee fully understands the evolving concept of sexual harassment and is prepared to properly respond to such harassment if and when it arises in the workplace. For questions regarding customized harassment training and advising, email Debra L. Weiss at dweiss@meagher.com or reach her by phone at (612) 347-9142.