As predicted, the #MeToo movement has sparked a surge in sexual harassment complaints against employers.
The U.S. Equal Employment Opportunity Commission reports a 50% increase in the number of sexual-harassment-related lawsuits in fiscal year 2018 from the year prior.
It also reported that charges filed with the EEOC alleging sexual harassment increased by more than 12% from fiscal year 2017. More precise numbers are not yet available, according to a spokeswoman.
Legal journals have reported that while lawyers haven't seen a flood of new lawsuits, they are seeing an increase in demand letters - which are basically precursors to lawsuits. Demand letters are informal claims that employees' lawyers send to employers to try to resolve the issue without resorting to filing an EEOC claim.
If your firm receives a demand letter, you shouldn't dawdle. It's important that you contact your outside counsel and answer the letter as soon as possible. The longer you wait, the greater the chances of a lawsuit being filed or that a complaint is filed with EEOC.
And even one complaint from a single employee can you into trouble with the EEOC.
In 2016, the an EEOC Select Task Force released a report in 2016 that noted that 45% of the alleged harassment charges the commission receives were based on sex.
The report also found that harassment often goes unreported and those who experience sex-based harassment often "avoid the harasser, deny or downplay the gravity of the situation or attempt to ignore, forget or endure the behavior."
Also, harassment victims have no legal obligation to alert their employers to the problem. If management has witnessed harassment or a hostile work environment and failed to take action, the company can be held liable.
"The least common response to harassment is to take some formal action - either to report the harassment internally or file a formal legal complaint," the report said. "Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager or union representative about the harassing conduct."
Setting policies and training
Employment law attorneys are busy with corporate clients helping them put in place preventative measures so they can avoid being sued in the first place.
Much of that includes helping companies assess their policies on how they deal with sexual harassment and the protocols for what happens after an employee files a complaint. Employers are also examining their anti-sexual harassment training programs to make sure that are more thorough than in the past.
While not all firms can afford lawyers to help them with this work there are professionals that specialize in anti-harassment training and helping employers put together responsive programs that can reduce the chance of harassment occurring in the workplace.
Here are some areas they are focusing on in this #MeToo era:
Workplace sexual harassment policy - If you don't have one, start working on one. You can enlist the help of an outside consultant on what you should include, but the theme should be zero-tolerance and a confidential reporting mechanism.
Once you have a policy in place, make sure you review it every three to five years to ensure it's up to date. This is especially true today as the speed of technology can sometimes outpace internal policies. Just think about social media and how it has exploded in the last five years.
Besides focusing on personal actions and responsibilities, one area that new training should encompass is the responsibilities of other staff if they witness sexual harassment.
Conduct regular training - Experts suggest holding company-wide anti-harassment training once a year. You should disseminate your company policy and it should focus on what the company will do if someone files a complaint, as well as the ramifications for perpetrating sexual harassment.
Focus also on what constitutes harassment. A good yardstick is asking someone how they would feel if someone did it to their sibling or child. Try to conduct live training with all management in attendance to show buy-in.
Have options for complaints - All complaints should not go through one person. It could be the company owner, but if you also have a human resources person, you may consider offering people a choice of two people to report it to, preferably a male and a female. Ideally if the you want a male to interview a male perpetrator. Also a person may feel more comfortable reporting the alleged harassment to a member of the same sex.
Investigating complaints - Make sure also, that you investigate every complaint. Many companies do not have the resources to conduct their own internal investigations into complaints.
Give us a call to discuss options in mitigating your risk.