A Year of #MeToo

December 18, 2018

In October 2017, the entertainment industry was rocked. Within months, nearly every industry felt the effects, with prominent people in entertainment, politics, technology and more facing allegations of inappropriate (or worse) workplace conduct towards women. This movement became known as the #metoo movement and has had major implications on the workplace. From prominent people very publicly losing their jobs, to a world-wide walkout of Google employees, #metoo has put the issue of gender equality and sexual harassment in the workplace at the forefront.

While #metoo has been at the top of newscasts for the last year, have there been any actual changes as a result of the #metoo movement?

Bans on Nondisclosure Agreements

As a part of this movement, victims of sexual harassment or assault in the workplace have come forward in unprecedented numbers to tell their stories. However, the question is whether others have felt prevented from speaking out based on non-disclosure obligations included in employment contracts or settlement agreements.

Earlier this year, we questioned the enforceability of those agreements. While those questions remain unanswered by the courts, many legislatures around the country are taking matters into their own hands. Earlier this year, Washington State enacted a law which prohibits employers from requiring employees to sign, as a condition of employment, a nondisclosure agreement (an “NDA”) which prevents them from “disclosing sexual harassment or sexual assault occurring in the workplace.” The Washington law goes further, stating that any such agreements that predate this law are void and unenforceable.

California enacted a similar law which prohibits provisions in settlement agreements that would prevent a victim from disclosing “factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex.” All told, sixteen (16) state legislatures have introduced (though not all have enacted) legislation to restrict use of NDAs in connection with sexual harassment or assault in the workplace.

It’s not just state legislatures raising this issue. This summer, a bi-partisan group of representatives from the United States House of Representatives introduced the EMPOWER ACT, which would bar employers from requiring employees to sign related to workplace harassment. In addition, this bill would also require businesses to disclose the number of harassment claims it settles each year, and the amount it has paid out.

While this bill has not been passed by the House, or even put up for a floor debate, its introduction is an indication that both federal and state legislatures are taking these issues seriously and the days of business hiding their bad actors may become a thing of the past.

Sexual Harassment Claims to the EEOC

Because of the timing of the start of the #metoo movement, we are just now learning whether #metoo has led to an increase in EEOC claims and litigation based on harassment claims. In October, the EEOC released preliminary data for its 2018 fiscal year, the first year which provided evidence of the impact of #metoo. A breakdown of that data is as follows:

  • Sexual harassment charges increased by more than 12% from FY 2017;
  • Lawsuits brought by the EEOC including claims of sexual harassment increased more than 50% over FY 2017;
  • The EEOC recovered nearly $70 million for sexual harassment victims through litigation and administrative enforcement in FY 2018 (versus $47.5 million in FY 2017).

How Should Employers Respond

Given these increases in EEOC actions and willingness of victims to speak out, what can employers and business do to protect themselves?

  • A well written (or updated) anti-harassment policy – Work with HR and legal counsel to make sure your anti-harassment policy sets out a well-documented reporting structure for harassment complaints and provides employees the assurance that they can speak out.
  • Distribute the anti-harassment policy to all employees – All employees should receive the policy, whether through the employee handbook or separately. Employees should also specifically acknowledge the policy in writing, which should be kept in the employee’s file.
  • Employee training – All employees should participate in regular, recurring training regarding the company’s anti-harassment policy. Managers in particular should receive training on what harassment looks like, how to spot it, and what to do when it’s witnessed.
  • Investigate – Once an allegation is received by a supervisor or HR, it should be immediately and thoroughly investigated. Interviews with the involved parties should be documented.

#metoo has initiated a time of change, socially and legally, in the workforce. These changes are likely to continue, so it is critically important for employers to take claims of harassment seriously, work to prevent them from occurring, and immediately and thoroughly investigate them when they do.