Operating in the New Normal of #MeToo

Bender’s Labor & Employment Bulletin February 2020

Jennifer Gefsky, Ian Carleton Schaefer, and RyAnn McKay Hooper, attorneys in the Employment, Labor & Workforce Management practice, in the firm’s New York office, co-authored an article in Bender’s Labor & Employment Bulletin, titled “Operating in the New Normal of #MeToo.”

Following is an excerpt:

Two years have passed since the widespread and scandalous accusations of sexual harassment against high-powered executives and celebrities jumpstarted the #MeToo movement. Virtually every industry was implicated and public accusations of sexual misconduct were asserted against prominent men every day in the first year of #MeToo. The momentum of the #MeToo movement has empowered thousands of employees to take action against alleged wrongdoers, with the Equal Employment Opportunity Commission (EEOC) data showing a 13.6% increase from fiscal year 2017 to 2018 in the number of sexual harassment charges filed. As the then Acting Chair of the EEOC Victoria A. Lipnic stated “[w]e cannot look back on last year without noting the significant impact of the #MeToo movement in the number of sexual harassment and retaliation charges filed with the agency.”

In addition to employees taking action against wrongdoers, several state and local legislatures passed new anti-harassment laws in an effort to prevent and remedy inappropriate behavior in the workplace. Companies, and specifically legal and human resources departments, must be aware of these legislative changes and their impact on a company’s prior workplace procedures to avoid or lessen potential company liability. However, even companies operating in states without new anti-harassment laws must have the requisite foresight to anticipate the continuum of changes in the American workplace. Today, it is commonplace for employees to expect, and sometimes demand, a supportive workplace culture. This momentous change in employee attitudes is due in part to: generational shifts in thinking; advances in technology; and the ‘‘immediate’’ transparency that is created by employees posting on social media platforms or employee experience and company review websites. Finally, when workplace issues do arise, there is less tolerance, both internally and externally, for the “quiet” settlement of these matters.

As a result, company leaders would be shortsighted if they did not prioritize their workplace cultures and create a systematic approach for handling internal complaints of harassment and discrimination. With respect to this latter point, every employee (or independent contractor, volunteer, etc.) complaint of harassment must be taken seriously, with an immediate investigation and imposed remedial action, if necessary.