The Weinstein Effect: Changing How Employers Address Sexual Harassment?

It started with Harvey. And it hasn’t slowed down.  The fallout has been wide-ranging, from execs in Hollywood to politicians in DC.  Kevin Spacey, Charlie Rose, John Conyers, and Matt Lauer are just a few of the individuals who have had their careers altered by allegations of improper sexual conduct.  Women across America have been empowered by this movement to come forward and identify men in positions of power who have misused their authority to coerce or intimidate them into tolerating sexual advances or lewd conduct, and the prevalence of the “#metoo” hashtag gives some insight as to the number of women who have been subject to such conduct in the workplace.

The high profile nature and media coverage of these disputes has created a ripple effect whereby women are coming out in unprecedented numbers complaining about inappropriate conduct in the workplace. This has led to a rash of claims, both formally with the EEOC as well as complaints with Human Resources and company personnel.  Here are a few things for employers to think about when dealing with these complaints:

1. Take all allegations seriously, and perform a prompt, thorough investigation.  You have an obligation under the law to do so, and quickly taking remedial measures may provide protection against a claim.  Remember not to guarantee absolute confidentiality during the investigation, because it may be necessary to disclose identities and facts in order to properly conduct the investigation.
2. Perform an investigation regardless of when the alleged conduct took place. A claim with the EEOC must usually be made within at least 300 days of the complained activity.  A lot of the recent allegations involve conduct from many years ago, and while there may not be civil liability for sexual harassment that occurred beyond that period, there may be liability under other theories.  Most importantly, the conduct should still be investigated if the alleged bad actor is still employed with the company, because failure to do so could lead to increased liability if the same actor continues to engage in similar conduct with others, and the company took no action regarding the prior complaint(s).
3. Make a conscientious decision about how to best resolve the claim. The complaining party and all other employees should have a safe environment in which to work, free from coercion and harassment. And gone are the days of simply issuing a settlement payment and keeping the agreement confidential to protect important employees.  This can sometimes encourage or embolden individuals to continue engaging in such conduct, which then in turn only increases the potential exposure to the company if it knowingly continued to employ someone with a history of harassment.
4. Conduct regular training to reduce the likelihood of this conduct occurring in the workplace. Involve personnel at every level of the company, including senior executives.