Sexual Harassment and the #metoo Movement - November 1, 2018 - Association of ...
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Sexual Harassment and the
#metoo Movement
November 1, 2018
“Seyfarth Shaw” refers to Seyfarth Shaw LLP (an Illinois limited liability partnership).
Seyfarth Shaw LLP
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Speakers Laura Shelby Chelsea Mesa Seyfarth Shaw LLP Seyfarth Shaw LLP 310-201-5203 213-270-9725 lshelby@seyfarth.com cmesa@seyfarth.com ©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Agenda
01 Introduction
Creating A Culture of Respect and Inclusion -- Best
02 Practices for Preventing Sexual Harassment
Recent Legislative, Litigation & Employer
03 Developments
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 3
Introduction:
One Year Since #metoo - where are we now?
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
The Silence Breakers
• Significant shift in focus on and
awareness of sexual harassment in the
workplace.
– 100+ public, high-profile sexual
harassment accusations made
against celebrities, public figures,
politicians and corporations.
– #MeToo social media campaign.
• In 2017: 70% of Americans describe
sexual harassment as a “very serious
problem.”
– In 1998: 36% of Americans described
sexual harassment as a “very serious
problem.” (Source: CNN/Time)
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Widespread, But Underreported
• Almost half of America’s working women say they have
experienced sexual harassment at work.
• 90% of workers who say they’ve experienced harassment
never formally report it.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
12/28/17
New York Times
Survey
• 1/3 reported their own
work activity within the
past year included
“objectionable behavior
or sexual harassment.”
• 1 in 25 men in the
“average American
workplace identifies
himself as a harasser.”
• Most Common Action:
Gender Harassment –
25%
• Unwanted Sexual
Attention – 10%
• Least Common Action
– Sexual Coercion – 2%
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 7
Spike in EEOC charges and recoveries
• The EEOC has seen a material spike in charges and lawsuits,
all driven by the #metoo movement.
– Since 2017, there has been a 50% increase in workplace
harassment lawsuits filed, the vast majority of which are
sexual harassment cases.
– The lawsuits resulted in total recoveries just shy of $70 million,
up from $47.5 million.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
Creating a Culture of Respect and Inclusion:
Best Practices for Preventing & Addressing
Sexual Harassment
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential
The Bare Minimum of Best Practices
• Acknowledgement that diversity and inclusion issues matter and
have a positive impact on a workplace.
• Ensure that management “walks the walk.”
• Compliant discrimination, harassment, and retaliation policies.
– updated regulations lay out specific requirements for what
must be included.
• Effective and updated harassment training program.
– new laws reach more employers with fewer employees, and all
employees of those employers.
• Robust reporting and response process.
• Hope for the best, prepare for the worst.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and ConfidentialActive • Provide training to all employees, not just
management.
Prevention –
• Effective Anti-Harassment Trainings Accomplish
Providing Three Goals:
Communication – Educate and provide employees with more
Skills and information about their employer’s anti-
Interactive Training harassment policy.
as Part of your
Respectful – Change employees’ attitudes about what type
Workplace of behaviors in the workplace are wrong.
Communications
– Fulfill legal requirements to conduct
mandatory training.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 11Active • In-depth partnerships with HR
Prevention – Representatives to reinforce active prevention
messages as well as enhancing investigation
Providing and complaint processing techniques.
Communication
Skills and
Interactive Training • Providing communication skills training for all
as Part of your employees.
Respectful
Workplace
Communications • Providing bystander intervention techniques
and trainings (including tailored “scripts”) for
all employees.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 12Current
Harassment • Employers with more than 50 employees
must provide managers with sexual
Training
harassment training.
Requirements
• Must be interactive, last at least 2 hours
and be taught by an expert.
• Must be given within 6 months of
hiring/promotion and every 2 years.
• Must include:
– federal and state law
– responding to and reporting complaints
– retaliation
– harassment policy
– effects of harassment
– recent addition of specific scenarios,
including gender identity and
expression, and sexual orientation
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential“Abusive
• AB 2053 (amending Gov’t Code 12950.1)
Conduct requires employers with 50 or more
Prevention” employees to train managers on
(Bullying) prevention of “abusive conduct” as part of
Training biennial sexual harassment prevention
training.
• “Abusive conduct” means malicious workplace
conduct that a reasonable person would find
hostile, offensive, and unrelated to employer’s
legitimate business interests.
– (1) repeated infliction of verbal abuse--the use of
derogatory remarks, insults, and epithets,
– (2) verbal or physical conduct that a reasonable
person would find threatening, intimidating, or
humiliating, or
– (3) the gratuitous sabotage or undermining of
work performance
• Single act not enough unless especially
severe and egregious.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and ConfidentialNEW LAW - Effective 1/1/19
Sexual Harassment: Training to (Nearly) All
• SB 1343:
– Employers with 5 or more employees must provide by 1/1/20
(then once every 2 years) sexual harassment training within 6
months of assuming any position to:
All supervisory employees: at least 2 hours
All nonsupervisory employees: at least 1 hour
Can be completed in shorter segments, totaling the 1 or 2 hours.
– Seasonal and temporary employees hired to work fewer than 6
months must be trained within 30 days of hire or within the first
100 hours worked.
– DFEH must make available:
Online training courses employers may use.
Informational posters, fact sheets, and online training courses in
multiple languages and for download/streaming online.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeActive • Leadership from the top
Prevention – – Visible accountability and leadership
from the top
Company Culture
• Climate/culture surveys
• Incentives/disincentives for policy
violations
• Fear of retaliation
• Wrap-Around Messaging
• Cascade of Respect-Focused
Communications
• Audit existing non-harassment policy
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 16Active
• Some employers are focusing on “Gateway
Prevention – Conduct,” small incidents that can devolve into
more egregious conduct if unaddressed.
Providing
• Some employers are focusing on building
Communication consensus regarding the relative ease of
Skills and intervention and enhancing employees’ skills to:
Interactive Training – Spot a colleague’s discomfort
as Part of your
– Support colleagues, using a step-up/speak-up
Respectful model
Workplace
– Employ distraction/extraction strategies
Communications
– Know when/how to call-in reinforcements
• Intervention language may include phraseology
targeted to specific organizations and
environments to eliminate barriers of unease and
reluctance to appropriately, safely, and
collectively “check” others’ conduct, including
peers at the C-Suite level.
– Simple, user-friendly and targeted language
can prove surprisingly effective
©2018 Seyfarth Shaw LLP. All rights reserved. Private and ConfidentialActive • Encourage and simplify internal reporting.
Prevention –
• Ensure multiple, wide-open reporting
Effective Reporting channels and robust response protocols.
Channels and – Rapid Response Team and Plan
Response
– Hotlines
– HR Structures
– Open door options
– EEO coordinators
• Confidentiality of Reporting and
Investigations.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 18Active
Some employers are considering:
Prevention –
• Eliminating sexual harassment and equal
Effective pay complaints from mandatory arbitration
Reporting agreements.
Channels and • Publication of statistics regarding usage
and resolution of allegations brought
Response through the Company’s internal complaint
mechanism and third-party federal, state,
and local agencies.
• Providing board audit committees with
regular reports regarding its policy, training,
and effectiveness of its investigations
regarding sexual harassment.
• Narrowing the scope of confidentiality and
non-disparagement provisions in traditional
settlement and release agreements for
sexual harassment complainants.
• Moving complaint mechanisms and/or
organization of complaints to an outside
organization or counsel.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and ConfidentialResponding to Allegations of Harassment
Common Questions & Concerns
• What do you do when faced with new sexual harassment
allegations regarding conduct that occurred many years ago?
• What should you do when you learn about alleged misconduct
by an employee that took place when that employee worked for
a different organization?
• How do you handle sexual harassment allegations against
workplace “superstars”?
• Concerns about negligent hiring and/or negligent retention.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 20Appropriate Responses to Allegations of
Harassment
• Employer’s actions in response to
complaints send powerful signals
about culture and tolerance of
harassment.
• Obligation to promptly and thoroughly
investigate charges.
• Keep detailed documentation of
investigation.
• Develop a media strategy.
• Assess the impact – isolated or
systemic?
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 21Responding to
Sexual
Harassment If allegations of sexual harassment are
Claims not new, same rules apply: prompt,
thorough investigation and effective
remedial measures, if necessary.
Document, Document, Document
Statute of limitations (one year to file
with DFEH)
Do you investigate stale claims beyond
all statute of limitations and involving
former employees?
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 22Responding to
Sexual What if the accuser or accused is still in the
Harassment workplace?
Claims • Obligation to protect others from
harassers
• Obligation to protect company from
lawsuits by other potential victims
Now cases are tried in the media, on social
media, and even some fake news
• Complaints may come after headlines
Will #MeToo change the
definition/application of severe or pervasive
standard?
Reputational risk – what is our internal and
external response?
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 23Addressing • How does it affect your brand? Your
Reputational Customers?
Risks Think about the different responses from
companies and alleged harassers that
you have seen.
• Create an internal response and
communication to try to head off the media
blitz.
• Engage a PR firm – think before you speak
to media….discoverable.
Focus message on positive
developments/progress company has
made in gender equality, diversity, EEO
areas.
Be careful to avoid reviving time-barred
harassment claims by giving them new
defamation or retaliation claims (e.g.
calling the accuser a liar, etc.)
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 24Addressing • What if the accused is a key leader?
Reputational Dealing with shareholders or
Risks powerful internal stakeholders
Obligations to disclose to the Board,
etc.
• Don’t ignore the impact on other
employees, morale, etc.
©2018 Seyfarth Shaw LLP. All rights reserved. Private and Confidential 25Additional 2019 Legal Updates –
Harassment and Gender-Related Laws
©2018 Seyfarth Shaw LLP. All rights reserved. Private and ConfidentialNEW LAW - Effective 1/1/19
Sexual Harassment Omnibus Bill
SB 1300 adds Government Code section 12923, codifying certain case holdings
regarding the standard of proof on sexual harassment:
1. First, a plaintiff does not have to prove a tangible decline in their productivity; it is enough
to show that harassment made it more difficult to do the job. (approving concurrence in
Harris v. Forklift Systems (1993)).
2. Second, a single incident of harassing conduct is enough to create a triable issue
regarding the existence of a hostile work environment (rejecting Brooks v. City of San
Mateo (2000)).
3. Third, existence of a hostile work environment depends on totality of circumstances, so a
discriminatory remark (even if not part of employment decision or made by a non-decision
maker) may be relevant. (affirming Reid v. Google, Inc.’s (2010) rejection of “stray
remarks doctrine.”))
4. Fourth, the standard for harassment does not depend on type of workplace (disapproving
Kelley v. Conco Companies (2011)).
5. Fifth, “harassment cases are rarely appropriate for disposition on summary judgment.”
(affirming decision of Nazir v. United Airlines, Inc., (2009)).
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeNEW LAW - Effective 1/1/19
Sexual Harassment Omnibus Bill (cont’d)
SB 1300 also:
1. Expands acts of nonemployees to all harassment (removing the “sexual”
limitation) (Gov’t Code § 12940(j)(1)).
2. Prohibits an employer from, in exchange for a raise, bonus or as a condition of
employment/continued employment, requiring an employee to sign*:
• A release of FEHA claims or rights.
• A nondisparagment agreement or other document prohibiting disclosure of
information about unlawful acts in the workplace. (Gov’t Code § 12964.5).
3. Prohibits recovery of fees and costs unless the court finds the action was
frivolous, unreasonable, or groundless when brought or that the plaintiff
continued to litigate after it clearly became so. (Gov’t Code § 12965).
4. Authorizes (but does not require) an employer to provide bystander
intervention training to its employees. (Gov’t Code § 12950.2)
* Does not apply to a negotiated settlement agreement to resolve an underlying FEHA claim
brought by the employee in court, before an administrative agency, ADR forum, or through
an employer’s internal complaint process.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeNEW LAW - Effective 1/1/19
Sexual Harassment: Ban on Confidentiality Provisions
• SB 820, The “Stand Together Against Non-Disclosure (STAND) Act”:
Prohibits provisions in settlement agreements entered into on or after January 1,
2019, that prevent the disclosure of factual information related to claims filed in civil
or administrative complaints involving sexual assault, sexual harassment, and
workplace harassment or discrimination based on sex.
Expressly authorizes inclusion of provisions:
- Precluding disclosure of settlement payments.
- Upon the request of the claimant, if the opposing party is not a government
agency or public official, that protects the claimant’s identity and facts that could
lead to the discovery of the claimant’s identity.
Adds Code of Civil Procedure § 1001.
• SB 3109 makes void and unenforceable a provision in a contract or settlement agreement
entered into on or after January 1, 2019, that waives a party’s right to testify in an
administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual
harassment on the part of the other contracting party, or the other party’s agent’s or
employees. This applies only when the party has been required or requested to attend the
proceeding pursuant to court order, subpoena, or administrative agency or legislative written
request.
Adds Civil Code § 1670.11.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeContracts RECAP
Not Allowed:
• Requiring employees sign releases of liability as a condition of continued
employment or in exchange for a raise or bonus. (SB 1300)
• Settlement agreement provisions that prohibit the disclosure of factual information
related to sexual assault, sexual harassment, and sex-based workplace
harassment/discrimination claims filed in civil or administrative complaints. (SB 820)
• Allowed:
• Provisions precluding disclosure of settlement payments.
• Upon the request of the claimant, if the opposing party is not a government
agency or public official, provision that protects the claimant’s identity and facts
that could lead to the discovery of the claimant’s identity.
• Contract/settlement agreement provisions that waive a party’s right to testify in an
administrative, legislative, or judicial proceeding about alleged criminal conduct or
sexual harassment by the other contracting party, his/her agents or employees. (SB
3109)
• if the party has been required/requested to attend the proceeding by court
order, subpoena, or administrative agency/legislative written request.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeNEW LAW - Effective 1/1/19
Sexual Harassment: Defamation Protection
• AB 2770 amends Section 47 of the Civil Code to extend defamation
privilege to:
1. A complaint of sexual harassment made by an employee, without
malice, to his/her employer based on credible evidence.
2. Communications between the employer and “interested persons,”
without malice, regarding a complaint of sexual harassment.
3. Answers, without malice, by a current or former employer or its agents
to a prospective employer’s inquiry as to whether the employer would
rehire the employee and whether the decision to rehire, or not, would
be based on a determination that the former employee engaged in
sexual harassment.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeVETOED
Sexual Harassment: Ban on Contractual Limitations on Disclosure &
Forum Waivers
AB 3080 would have added two sections (432.4 and 432.6) to the Labor Code
that do the following, and a section (12953) to the Government Code that would
have made it an unlawful employment practice for an employer to violate those
Labor Code sections:
– Prohibited an employer from, as a condition of employment, continued
employment, receipt of any employment-related benefit, or as a condition of
entering into a contractual agreement, prohibiting an applicant for employment,
employee, or independent contractor from disclosing to any person instances of
sexual harassment suffered, witnessed, or discovered in the work place or in
performance of the contract.
– Prohibited mandatory arbitration of FEHA and Labor Code claims.
– Prohibited retaliation against an employee who refuses to sign an agreement
waiving his/her right/forum/procedure for a violation of FEHA / Labor Code.
Would have applied to agreements entered into, modified, or extended on or after
1/1/19.
The Governor stated he was compelled to veto this bill because it “plainly
violates federal law.”
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeNEW LAW - Effective 1/1/19
Gender Equity: Women on Boards
SB 826: California-based publicly held corporations with principal executive offices in
CA must, by the following deadlines:
1. Required Deadlines To Have Certain Number Of Females On Board Of Directors.
2. California Secretary of State Must Report Results.
3. Fines. The Secretary of State may impose fines:
– $100k for failure to timely file board member information with Secretary of State.
– For each director’s seat not held by a female during at least a portion of the
calendar year:
$100k for first violation and
$300k for subsequent violations.
Adds sections 301.3 and 2115.5 to the Corporations Code.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeNEW LAW - Effective 1/1/19
Pay Equity Clarifications
AB 2282. Amends Labor Code §§ 432.3 and 1197.5.
1. Employer, upon reasonable request, must provide the pay scale for a
position to an applicant applying for employment.
“pay scale” means a salary or hourly wage range.
“reasonable request” means a request made after an applicant has completed an
initial interview with the employer.
“applicant” or “applicant for employment” means an individual who is seeking
employment with the employer and is not currently employed with that employer
in any capacity or position.
2. Employers are not prohibited from asking about salary expectations.
3. Employers may make a compensation decision based on an employee’s
current salary as long as any wage differential resulting from that
compensation decision is justified by one or more of the permitted
factors (seniority, merit system; quantity/quality of production; bona fide
factor other than sex, training, education, experience).
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeNEW LAW - Effective 1/1/19
Time Off / Paid Family Leave
AB 2587 removes the application of vacation leave to the waiting period
under the paid family leave program, consistent with the removal of the
7-day waiting period for these benefits.
Amends § 3303.1 of the Unemployment Insurance Code.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeLactation Accommodations
• NEW LAW - Effective 1/1/19
– AB 1976 requires employers to make reasonable efforts to provide a room or
location (that is not a bathroom, deleting “toilet stall” and inserting “bathroom”)
for lactation. Authorizes a temporary lactation location if certain conditions are
met. Provides a narrow undue hardship exemption.
• VETOED - SB 937 would have required employers to:
– Provide a lactation room with prescribed features and access to a sink and
refrigerator (or another cooling device suitable for storing milk) in close proximity
to the employee’s workspace.
– Develop and distribute to employees a lactation accommodation policy.
– Maintain accommodation request records for three years and allow employee
and Labor Commissioner access to the records.
– Deem the denial of break time/space for lactation a failure to provide a rest
period under Labor Code section 226.7.
©2018 Seyfarth Shaw LLP. Privileged and Confidential / Attorney Work Product/Do Not Share or DistributeThank you!
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