Demark, Kolbe & Brodek, S.C.

7418 Washington Ave, Racine, WI 53406

#MeToo: Sexual Harassment and Retaliation

Introduction


The #MeToo movement has helped victims find their voices and caused employers to reflect on their policies. As an employer, you may wonder how this national movement might affect your business. According to the Equal Employment Opportunity Commission (EEOC), there was a 13.6% increase in sexual harassment claims filed by employees against their employers in 2018. From those increased claims, the EEOC filed 66 workplace harassment lawsuits, 41 that were sexual harassment specific, which amounted to a 50% increase compared to 2017.[1]


This increase in claims and lawsuits may be a result of the #MeToo movement shedding light on employee rights, which include the right to work in an environment free of harassment and the right to report harassment without fear of retaliation. Historically, retaliation has been the most common claim as it encompasses many other claims at its core[2]. Retaliation occurs when an employee suffers an adverse job action as a result of engaging in a legally protected activity – taking FMLA leave, reporting discrimination, harassment, etc. These rights include any right provided to the employee under federal, state, or local law. Retaliation can take the form of limiting an employee’s hours, reducing the employee’s pay, or firing the employee.


In the #MeToo context, sexual harassment and retaliation go hand-in-hand. The narrative reads “employee is harassed and either doesn’t say anything for fear of retaliation or does say something and is retaliated against.” These claims are both large and small in scale. For instance, McDonald’s Corporation is facing liability for the alleged activity of its franchisees. The Time’s Up Legal Defense Fund and the American Civil Liberties Union (ACLU) filed multiple charges against McDonald’s for both sexual harassment and related retaliation.[3] While the McDonald’s Corporation argues it is not liable for the actions of its franchisees, there is a case pending that could determine that McDonalds Corporation is a joint-employer and thereby jointly liable for the alleged violations of its franchisees. A decision like that could have lasting implications on franchisor liability and serve to strengthen the breadth of the #MeToo movement by disarming the franchisee model, which has worked as a shield for liability in cases like these.


Concerns and Solutions


Critics of #MeToo express concern that the movement negatively impacted company cultures by creating divisive environments where men are overcautious about their behavior being misperceived, which leads to men choosing to exclude women from certain activities such as lunches, one-on-one mentoring, or meetings. This culture of exclusivity is not the appropriate response as it fosters a toxic environment of exclusion based on sex, which will likely lead to further claims of harassment. Additionally, it harms the company by stifling input from diverse perspectives, which is imperative in a growing and changing market.


Instead, employers should approach this movement with care and thought. Employers cannot control the actions of their employees. What employers can and should do is implement a thoughtfully drafted harassment policy and train employees on what that policy means and how it works. The policy and training should include clearly defined definitions and explain the process by which claims of harassment are investigated and resolved within the company. Proper management and resolution of harassment claims promotes healthy company culture. It demonstrates the company’s dedication to creating harassment-free workplaces and is an employer’s best defense to harassment claims.


Conclusion


As with most things, an ounce of prevention is worth a pound of cure. In order to help prevent harassment from occurring in your workplace, you must establish clear policies and foster a company culture that discourages inappropriate behavior and encourages dignity, respect, and inclusion. Through clearly defining expectations, policies, and procedures, employers have the ability to get ahead of the curve by not only reducing the chances of harassment occurring but also by properly handling issues if and when they arise. Please contact us at DeMark, Kolbe & Brodek for assistance in devising a strategy and plan for your business.

[1] https://www.eeoc.gov/eeoc/newsroom/wysk/preventing-workplace-harassment.cfm


[2] https://www.eeoc.gov/laws/types/facts-retal.cfm


[3] https://www.nytimes.com/2019/05/21/business/mcdonalds-female-employees-sexual-harassment.html



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