#METOO: IMPACT OF THE GLOBAL - Association of Corporate Counsel
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#METOO:
THE GLOBAL
IMPACT OF
THE SEXUAL
H A R A SSM EN T
MOVEMENT
68 ASSOCIATION OF CORPORATE COUNSELCHEAT SHEET
■■ Stricter policies.
Jurisdictions all over
the world are expected
By ACC Docket Staff The #MeToo movement,
to continue to intensify,
clarify, and tighten
which gained international notoriety
policies surrounding
following the sexual misconduct code of conduct and
allegations of a well-known Hollywood whistleblower legislation
producer, has become a digital outcry to set a clear expectation
for how companies
for women and men who refuse to be
should handle a sexual
silent about inappropriate behavior in harassment claim.
the workplace and beyond. While some ■■ Official channels.
of us have sat through trainings on what It’s important to
constitutes workplace harassment, establish multiple
channels for reporting
policies and procedures for reporting and
sexual harassment.
responding to such claims vary widely Give employees the
from company to company — and from opportunity to report
country to country. up their own chain of
command, to someone
In fact, research by the WORLD Policy in HR, or to anyone in
upper management.
Analysis Center at UCLA found that 68
■■ Training in India. In
countries do not have any workplace- India, training starts
specific protections against sexual at a cultural level. In
harassment. What’s more, a staggering some instances, for
57 percent of HR professionals believe
example, organizations
put on a series of plays
that unreported sexual harassment
to educate people
incidents occur to a small extent within about the impact of
their organization, according to a report sexual harassment
by the Society for Human Resource in the workplace.
■■ Retaliation consideration.
Management (SHRM).
Both the accuser
and the accused
should be reminded
at every conversation
about the company’s
anti-retaliation policies
and warned that any
attempt to retaliate
in the investigation
will lead to discipline,
if not discharge.
ACC DOCKET APRIL 2018 69#METOO: THE GLOBAL IMPACT OF THE SEXUAL HARASSMENT MOVEMENT
With global news breaking almost receive a complaint? How promptly is
daily with allegations of abuse, or the it being investigated? Who is doing the
firing of another accused executive, investigation? Is that investigation hap-
companies are taking a hard look at pening in an objective way by someone
their employment policies. But what who has no stake in the outcome?
needs to change? How can the legal de- I think the third thing organiza-
partment help? And how should com- tions are looking at is, “Are our
panies respond to claims of sexual ha- individual employees safe to come
rassment and all behavior that causes forward and report?” You can have
fear or anxiety in the workplace? the best reporting mechanisms in
Here, four in-house counsel from the world, but if there is subtext
four different areas of the world at- that you should not use them, then
tempt to answer these questions and they do an organization absolutely
more, discussing the current sexual no good. How do we encourage
harassment laws that exist in their ju- employees to report good faith con-
risdictions; how they anticipate laws cerns, and convey the message that
could change as a result of the move- we truly want to know?
ment; and what in-house counsel can Axel Viaene (EMEA): I think that
do to prepare for the possibility of the jurisdictions in EMEA, as well as
increased reports of sexual harass- in the rest of the world, will continue
ment, including creating a culture to intensify, clarify, and tighten poli-
that encourages — and does not cies surrounding code of conduct
deter — people to step forward. and whistleblower legislation to set
a clear expectation for companies
THE LAW OF THE LAND about how they should properly
ACC: How have sexual harassment laws handle a sexual harassment claim.
changed as a result of the #MeToo When the European Parliament met
movement and how do you anticipate about #MeToo earlier this year, it
they’ll change in the future? was just sort of an opening shot. I
Elizabeth Bille (United States): I think think this will very probably lead
the #MeToo movement has really to an intensification of compliance-
provided a catalyst for organizations related legislation — which, by the
to do a lot of self-reflection.They’re way, I think is a very good thing. The
looking at their harassment policies, clearer these things are Europe-wide,
not just regarding sexual harassment, and worldwide, the better.
but harassment in general, and asking However, I think you shouldn’t solely
themselves: Are we going far enough see it in a sexual harassment perspective.
in prohibiting not just what constitutes We should be thinking of compliance
legal harassment, but other behaviors and code of conduct in general. I serve as
that could be precursors to harass- global general counsel for GrandVision,
ment? In other words, are they [the but we’re located in EMEA and, of
policies] covering the scope of behav- course, this is our backyard. What I have
iors that are detrimental to our culture seen is an intensifying of legislation in
and could pave the way for future legal that respect, which is a very good de-
harassment claims? velopment. The EMEA jurisdictions are
Further, organizations are really taking this more and more seriously. For
taking a hard look at their investiga- instance, France recently implemented
tion procedures. Specifically, how detailed new legislation on code of con-
many channels do we have for people duct and compliance.
to report? To whom are we asking that Mahalakshmi Ravisankar
they report? Do we have an anony- (India): After 1997, following the
mous option? What happens once we implementation of mandatory
70 ASSOCIATION OF CORPORATE COUNSELPanel
AXEL VIAENE
Axel Viaene is group general counsel and company secretary
of GrandVision based in Schiphol, the Netherlands. Previously,
Viaene served as EMEA legal director for Starbucks from
2003 until 2013, based in Amsterdam. He has been a member of
the New York Bar since 1998, and served as president of the board of
directors of the European Chapter of ACC during the 2009-2010 term.
He received an LL.M. from the University of Chicago Law School and is a
graduate of the Katholieke Universiteit Leuven Law School in Belgium.
LORI MIDDLEHURST
Lori Middlehurst is the director and assistant general
counsel of VMware, a multinational software company. She
leads its Global Employment Law Group, with lawyers in
the United States, EMEA, and Asia Pacific. She is the vice president
of ACC New South Wales and is active on the CLE and Diversity and
Inclusion subcommittees. She has just joined the board of ACC Australia,
and also contributes to ACC globally as the co-chair of the International
subcommittee of ACC’s Employment and Labor Law Committee.
MAHALAKSHMI RAVISANKAR
Mahalakshmi Ravisankar is a seasoned compliance professional,
with over 30 years of corporate experience in leading
multinationals, such as Unilever, Diageo India, and ABB India,
and has earned her LLB and CS degrees. She has diverse experience in
setting up compliance and governance framework in companies, such
as Marico India, Times of India, and Beiersdorf India. She is currently
working on a project COMVERVE, a prototype for implementing compliance
programs through effective communication and community initiatives.
ELIZABETH BILLE
Elizabeth Bille is general counsel of the Society for Human
Resource Management (SHRM). SHRM is the world’s largest HR
professional society, representing 290,000 members in more
than 165 countries. Before joining SHRM’s legal department, Bille served as
counsel to the vice chair of the US Equal Employment Opportunity Commission
(EEOC), where she worked on complex employment discrimination litigation
and the development of EEOC regulations and enforcement guidance.
guidelines by the apex court in India, to local management to not just
known as the Vishaka Guidelines, deter sexual harassment, but provide
sexual harassment policies became authority to organizations to police
a buzzword for precaution, not all kinds of insensitive behavior,
protection. However, in 2013, the manifesting as sexual harassment in
Sexual Harassment of Women at the the workplace.
Workplace (Prevention, Prohibition, The law expanded the boundary
and Redressal) Act 2013 was passed of sexual harassment legislation
in a landmark ruling in the history of beyond the corporate set up, mak-
the Indian judiciary, wherein for the ing the employer responsible for its
first time, regulations gave authority adjudication, irrespective of the size
ACC DOCKET APRIL 2018 71#METOO: THE GLOBAL IMPACT OF THE SEXUAL HARASSMENT MOVEMENT
just developed this extremely elabo-
Exclusive ACCDocket.com resources rate regulatory framework for sexual
on sexual harassment harassment in just the last three or
four years. There is a lot of room for
■■ “Sexual Harassment Law in India: Redefining Workplace Dynamics” improvement in terms of legislative
www.accdocket.com/articles/sexual-harassment- initiative in this region, and I think we
law-india-redefining-workplace.cfm.
will see frameworks being developed.
■■ “Sexual Harassment in the US: Don’t Be a Trending Topic”
Multinationals can’t just rely on a
www.accdocket.com/articles/sexual-harassment-
us-don-t-be-a-trending-topic.cfm.
global US-centric policy. You have
■■ “Examining Sexual Harassment in the Workplace” to be specific about the law in each
www.accdocket.com/articles/examining-sexual- country. When setting policy, I think
harassment-in-the-workplace.cfm. it’s important to choose language that
■■ “Ask Aliya: Building a Work Culture that Prevents Sexual Harassment” resonates broadly. Multinationals
www.accdocket.com/articles/ask-aliya-work- have to look for different ways to
culture-prevents-sexual-harassment.cfm. explain what your expectations are,
as well as “advertise” the support
provided to employees who experi-
and nature of an entity, covering end, with Australia and New Zealand, ence or witness harassment.
even the domestic workers. The law common law countries that have had We have a high standard, and we
is landmark in bringing the court- sexual harassment laws for more than apply that high standard across the
room to the boardroom — vesting 25 years. Then on the other end, you board in terms of our behavioral
the employer with all the powers of have a lot of countries in Asia that expectations. But if that standard
a civil court and making manage- may not have laws or just generically is at odds with societal norms in a
ment the custodian of the law vis-à- prohibit discrimination. Singapore still particular country, then we have to
vis the stakeholders. has voluntary guidance — meaning work harder to inculcate it and make
Lori Middlehurst (Australia/ that it does not currently have any en- sure that employees know that we
APAC): I look after employment forceable sexual harassment standards, want all of them to experience a safe
matters for the Asia Pacific region, although it’s illegal to discriminate. and respectful environment. At-
which in our world contains about 15 Taiwan and South Korea, however, will employment is not the norm in
different countries with hugely varied both have detailed laws that require APAC, so we also need to make sure
cultural, religious, historical, and lin- localized training in local language. that our investigative and disciplin-
guistic backgrounds. You start at one And then you have India, which has ary processes meet standards of due
32% of organizations changed their sexual harassment training in the past 12 months.
Excerpted from Harassment-Free Workplace Series: A Focus on Sexual Harassment. ©Society for Human Resource Management 2018.
Preemptive actions currently being used:
Assessing company culture and identifying
potential risks for sexual harassment 62%
Developing accountability measures for
preventing and responding to sexual harassment 44%
Conducting climate surveys to assess the extent 36%
of sexual harassment within the organization
Excerpted from Harassment-Free Workplace Series: A Focus on Sexual Harassment. ©Society for Human Resource Management 2018.
72 ASSOCIATION OF CORPORATE COUNSELprocess, or regulatory requirements Tone at the top. I mean it
across the geography. really starts there. Then,
make sure that your
PREPARING FOR THE
AFTERMATH OF #MeToo policies surrounding sexual
ACC: What strategies should in-house harassment are clear and
counsel implement to prepare for the make sure training is
rise of reporting as a result of #MeToo?
implemented both face-to-
Middlehurst: I think that it’s
face and through e-learning.
[#MeToo] really shaken companies
out of their complacency. You’ve got
Make sure this training
to really look at what you’re do- is not too legalistic and is
ing, and then take a new look at the repeated and make sure
components that you used to try to that there’s accountability.
prevent harassment and maintain a
harassment-free environment.
Establishing official channels is
so important in doing that, but how can trust their management, and you
do we make people more aware? It’s have to work at that all the time.
easy to create a channel, but the hard Bille: #MeToo has really reinforced
part is actually getting the people the importance of giving employees
to come forward. Then you have multiple channels for reporting. At
to look at the engagement between SHRM, we discuss this often: Give
your company and employees. You’ve employees the opportunity to report
got to create a level of transparency up their own chain of command,
where employees understand how give them an opportunity to report
decisions get made, and that they to someone in HR, and give them
can see, in each of the places where an opportunity to report to anyone
those decisions are getting made, that in senior management. In addition,
decisions are getting made fairly and establish an external anonymous
based on the facts. You have to create hotline. I think having the anonymous
this environment where employees hotline in particular is critical
Sexual Harassment Prevention Policies
94% 22%
of HR professionals report of nonmanager employees say
that their organization has they are not sure if their
a sexual harassment policy. organization has a policy.
Excerpted from Harassment-Free Workplace Series: A Focus on Sexual Harassment.
©Society for Human Resource Management 2018.
ACC DOCKET APRIL 2018 73#METOO: THE GLOBAL IMPACT OF THE SEXUAL HARASSMENT MOVEMENT
because, not withstanding assurances TRAINING & COMPANY CULTURE
that individuals won’t be retaliated ACC: What purpose does training hold
against, some people simply do not in preventing sexual harassment? How
feel comfortable having a face-to- frequently should sexual harassment
face conversation about something training occur?
that is as sensitive and potentially Viaene: Tone at the top. I mean it
embarrassing as a potential sexual really starts there. Then, make sure
harassment complaint. that your policies surrounding sexual
harassment are clear and make sure
ACC: If an investigation does occur, training is implemented both face-to-
how do you ensure due process? face and through e-learning. Make sure
Middlehurst: Companies must have this training is not too legalistic and is
structures in place so that all employ- repeated to ensure accountability.
ees understand that the company is I think it’s important that training
not acting on presumption of guilt. It occurs at least once a year and for
is important to set those expectations every newcomer as well. So as part of
right away with individuals who your induction, you take the training.
come forward. It’s important that the But it is must be part of the culture of
employees involved understand the the company. I think that is probably
country requirements for an investi- one of the most effective training tools.
gation as well — that the process may It shows the new people, the junior
be different from what they see on people, how you should conduct your-
American TV. self within a company and how to treat
Viaene: Of course, when something people in a business context. That’s still
like this happens, where an accusa- the best training there is.
tion is launched against a person, the Ravisankar: In India, training
easiest solution for the company is to starts at a cultural level. For instance,
just fire the person without putting in Bangalore, we have a wonderful
too much energy in the investigation. series of performances in a forum
That is wrong. It is the company’s format where we enact situations,
duty to investigate properly, to put which are promulgated for sexual
in adequate resources, and to report harassment. We create that kind of a
transparently and professionally. scenario, and then the people who are
Bille: Companies still have to be watching the play come join the per-
very careful in their zeal to aggres- formance, and change the outcome.
sively eradicate harassment and deal So when people see that there are
swiftly with allegations. They cannot scenes that are being enacted which
swing too far in the other direction they can relate to — either because
and not afford the accused due pro- they themselves have gone through it
cess. You have to investigate. There or somebody else has gone through
are very often two sides to every it — then they’re actually getting an
story and, therefore, it is critical to opportunity to come and correct the
engage in the investigation before situation. That’s very, very effective
any disciplinary action is taken. It for them. There are many women
may be a very short investigation if who go through sexual harassment,
there is overwhelming evidence, but but there are no forums to gather
an investigation needs to be done. them for any kind of counseling that
Everyone deserves due process, both may be available.
the accused and the accuser. In an Middlehurst: I’ll echo the com-
organization that does not afford ments above — in India we have had
due process to the accused, they a grass-roots effort to educate people
may do so at their peril. through the use of plays, written and
74 ASSOCIATION OF CORPORATE COUNSELperformed by our own employees. The way I see #MeToo
This has been extremely popular movement right now is more
and a well-received vehicle for
like wearing a digital badge.
imparting knowledge. In Australia,
that would never work. Australians
#MeToo is a collective.
are much too cynical and prefer It is showing that sexual
more direct communication. The harassment is an issue
important message about training is that cannot be addressed
that one size and type does not fit all
by one organization alone.
— it needs to be relatable, culturally
appropriate and not simply a tick-
It needs a joint action plan
the-box exercise. from the government,
from civil society, from
ACC: Similarly, anti-retaliation policy is
NGOs, and also from
especially top-of-mind when thinking
about sexual harassment policy. How organizations worldwide.
do you ensure that you create a culture
where employees do not feel they will
be punished for speaking up?
Bille: I think there are few things
that companies can do to prevent supervisory chain as the accused,
retaliation. Obviously, they should be removed. One of them should be
have as a baseline matter, a very removed from that supervisory chain
strong anti-retaliation policy that is or otherwise insulated from the other
communicated regularly. Both the to prevent the possibility of future
accuser and the accused will be re- retaliation, particularly while the
minded at every conversation about investigation is pending.
anti-retaliation, and that any at- You need to do this in a way
tempts to retaliate unlawfully against that doesn’t constitute retaliation
someone who is participating in the against the accuser. For example,
investigation would lead to swift and if there is an allegation that a
serious discipline, if not discharge. manager is sexually harassing their
That’s obviously the baseline step. subordinate, you would either
Another important aspect is taking reassign the manager or you would
action when retaliation does occur. move the individual accuser to
This requires absolute resolve from the another reporting chain or another
very top of the organization on down part of the building. Again, not
that retaliation will not be tolerated. in a way that’s detrimental to that
Employees should see that someone person, but in order to protect them
who has taken retaliatory steps against from interactions that could either
an accuser is disciplined or discharged be retaliatory or would facilitate
— and of course sometimes there’s possible continued harassment.
confidentiality, you can’t always un- You’ve got to stop harassment. You’ve
derstand the reasons for why an action got to prevent retaliation when you
happened. But if they see it happen, receive a complaint.
word will spread very fast that the Viaene: Europeans refer to the
company means what they say. United States as having the principle
Third, as a practical matter, it’s of “at will” employment but do not
always an effective practice when- always realize that the US system
ever an allegation of discrimination also has a lot of employee protection
or harassment has been filed that built in. There are a lot of ways that
the accuser, if they are in the same employees can sue their employer
ACC DOCKET APRIL 2018 75#METOO: THE GLOBAL IMPACT OF THE SEXUAL HARASSMENT MOVEMENT
for wrongdoing. But Europe has a wearing a digital badge. #MeToo is
very protectionist employment law a collective. It is showing that sexual
culture, so in many cases there are no harassment is an issue that cannot
specific anti-retaliation laws because be addressed by one organization
the employee is already extremely alone. It needs a joint-action plan
well-protected by the system. from the government, from the civil
I fear there is really no one-size- society, from NGOs, and also from
fits-all solution for building such organizations worldwide.
a culture. It is a long-term effort Viaene: I hope that this will
consisting of tone at the top, train- motivate people to abandon their
ing, effective communication, lead- fears, pick up that phone, and use the
ing by example, accountability, and whistleblower hotline that I’m sure
reporting. If you do this right, the is available in their company, and re-
right culture will emerge. You will port this behavior rather than being
also need to maintain this effort or afraid of retaliation and not report-
the culture will quickly evaporate. A ing it. I think that that will happen,
good test to gauge the health of your and I also hope that will happen. In
company culture is to keep your that respect, the #MeToo movement
ear to the ground and listen to the will hopefully help persuade victims
stories that circulate. A lot of em- of this sort of illicit behavior to really
ployees, in most cases wrongly, base speak up so it can be addressed.
their perception and their conse- Bille: One way I see technology
quent actions not as much on poli- increasingly playing a part in the in-
cies, training, and facts but on what vestigation of sexual harassment cases
they hear in the informal circuit. involves the evidentiary trail provided
through technology. Whether it’s text
TECHNOLOGY & #METOO messages, social media posts, email,
What role will technology play in the photo sharing, or things of that na-
#MeToo movement and how can legal ture, they are increasingly the types of
departments ensure a fair, safe process? evidence that general counsel and in-
Ravisankar: The way I see #MeToo house counsel will be looking for —
movement right now is more like or may be presented to them as part
ACC EXTRAS ON… Sexual harassment
ACC Docket Attorney-Client Privilege and Check Card
Lessons on Culture and Sexual Harassment: Lessons Harassment and
Leadership from Uber’s Ethics from a Hollywood Scandal Discrimination Compliance
and Compliance Struggles (Nov. 2017) www.accdocket. Check Card (Sept. 2017)
(Jan. 2018) www.acc.com/ com/articles/harvey-weinstein- www.acc.com/legalresources/
legalresources/resource. attorney-client-privilege- resource.cfm?show=1468183
cfm?show=1476581 harass.cfm
Sample Form & Policy
Sexual Harassment Law in Ask Aliya: Building a Work Policy Against Unlawful
India: Redefining Workplace Culture that Prevents Sexual Harassment And
Dynamics (Jan. 2018) www. Harassment (March 2017) Discrimination (Apr. 2017)
accdocket.com/articles/ www.accdocket.com/ www.acc.com/legalresources/
sexual-harassment-law-india- articles/ask-aliya-work- resource.cfm?show=1456591
redefining-workplace.cfm culture-prevents-sexual- ACC HAS MORE MATERIAL
harassment.cfm ON THIS SUBJECT ON OUR
WEBSITE. VISIT WWW.ACC.COM,
WHERE YOU CAN BROWSE OUR
RESOURCES BY PRACTICE AREA
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of the investigation. It’s not always just provided that it’s not being abused.
the he said/she said anymore. But it is important that these things
can no longer be hidden. In the fu-
WHAT’S NEXT ture, social media can help tremen-
ACC: Where do we go from here? dously by rooting out this sort of
Bille: This is one area where we will behavior.
see private industry really taking the Ravisankar: I feel the #MeToo
lead in examining what’s happening, movement has actually expanded the
and maybe where things have fallen bandwidth of the actions that needs to
short in terms of internal responses, be taken in the workplace. In addi-
and then taking more aggressive tion, many organizations have gone
steps to define the culture that they one step ahead and said it’s important
want to have. Further, they’ll ensure for us to hire women, retain them,
that everyone from the very top to and ensure that the workplace envi-
the very bottom of the organization ronment is safe and condusive. It lev-
are held accountable to that culture els the playing field. If you’re playing
and embrace that culture. football, you need to have a football
If they don’t, they will not be em- ground. You cannot ask a woman to
ployed, even if they are the rainmak- play football on a cricket ground.
er of the organization. I think we’re Today, organizations are expected
going to see — whether it’s pres- to play the role of a conscience keeper
sure from social media, the media, and a torchbearer for promoting
or consumers — that shareholders mutual respect, trust, and dignity.
are going to really be focusing on For this to translate into meaningful
this in a heightened fashion going action, legislation has to be married to
forward. Based on that expectation the commitment of the corporations,
and demand, organizations will likely the responsibility of the regulators,
refocus and reinvest in this issue. and the vision of the policy mak-
Middlehurst: Technology compa- ers. This process will see many more
nies like mine are in such a tough race #MeToo campaigns to come. ACC
for talent that there is no question
that we need to be attractive to a
diverse base in every geography where
we have offices. If we don’t have a
good environment for people to work
in, we will never be able to achieve
any kind of parity, or increase the
number of women in our workforce.
It’s an economic imperative. Many
people who experience harassment,
even if it is dealt with appropriately,
will leave the company — that is a loss
of a valuable resource. The #MeToo
movement is a great reminder that we
need to stop harassment from hap-
pening in the first place.
Viaene: I think social media is
a godsend in that respect because
it helps with transparency. It helps
with democracy. Whenever some-
thing goes wrong, it can be put on
social media with proof. Of course,
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