#MeToo Movement Spurs Proposed Legislation, New EEOC Guidance, and Dramatic Uptick in Harassment Claims

11.30.2017

With new allegations of sexual harassment, sexual misconduct, and sexual assault surfacing almost daily, harassment is getting more attention in the media, and employers are experiencing an uptick in complaints from employees. Following is a summary of some of the latest developments, followed by some tips for approaches employers may take in response.

EEOC Issues "Promising Practices for Preventing Harassment"
On November 22, 2017, the Equal Employment Opportunity Commission ("EEOC") published new informal guidance on its website regarding harassment, entitled "Promising Practices for Preventing Harassment." While this publication does not have the force of formal regulations or rules, the EEOC makes a number of novel suggestions for harassment prevention that employers may consider adopting as best practices.

The EEOC encourages employers to adopt policies and procedures that:

• Provide multiple avenues for making complaints.
• Periodically evaluate the effectiveness of the organization’s strategies to prevent and address harassment, including reviewing and discussing preventative measures, complaint data, and corrective action with appropriate personnel.
• Ensure that concerns or complaints regarding the policy, complaint system, and/or training are addressed appropriately.
• Direct staff to periodically, and in different ways, test the complaint system to determine if complaints are received and addressed promptly and appropriately.
• Conduct anonymous employee surveys on a regular basis to assess whether harassment is occurring, or is perceived to be tolerated.

Among other features, the EEOC suggests harassment policies that also:

• Describe processes for employees to informally share or obtain information about harassment without filing a complaint.
• Include a statement that employees are encouraged to report conduct that they believe may be prohibited harassment (or that, if left unchecked, may rise to the level of prohibited harassment), even if they are not sure that the conduct violates the policy.
• State that the employer will provide a prompt, impartial, and thorough investigation.
• Respond to complaints by employees and by other individuals on their behalf.
• Include processes to ensure that alleged harassers are not prematurely presumed guilty or prematurely disciplined for harassment.

The EEOC also encourages employers to appropriately document every complaint, from initial intake to investigation to resolution, use guidelines to weigh the credibility of all relevant parties, and prepare a written report documenting the investigation, findings, recommendations, and disciplinary action imposed (if any) and corrective and preventative action taken (if any).

As for training, the EEOC suggests:

• Because supervisors and managers have additional responsibilities, they may benefit from additional training.
• Employers may find it helpful to include non-managerial and non-supervisory employees who exercise authority, such as team leaders.
• Employers may consider and implement new forms of training, such as workplace civility, respectful workplace, or bystander intervention training.

To view the entire publication, click here.

California Legislature to Propose Bill to Address "Secret" Settlements
Meanwhile, many states and local governments are considering new legislation that would ban "secret" settlements in sexual assault and harassment cases. On October 19, 2017, California Senator Connie M. Leyva (D-Chino) promised to introduce new legislation when the California Senate reconvenes in January 2018 to ban secret settlements (confidentiality provisions in settlement agreements) in sexual assault, sexual harassment, and sex discrimination cases. In support of such legislation, Leyva stated:

Secret settlements in sexual assault and related cases can jeopardize the public—including other potential victims—and allow perpetrators to escape justice just because they have the money to pay the cost of the settlements. This bill will ensure that sexual predators can be held accountable for their actions and ideally prevent them from victimizing others.

No bill has been formally introduced yet, so there is no bill number attached to the proposal. However, this will be legislation to watch in 2018, and we will track such legislation as it develops.

Los Angeles County Reports an Uptick in Harassment and Discrimination Filings
The County of Los Angeles reported on November 17 that it has experienced an upswing in harassment and discrimination complaints in recent months. (source: www.scpr.org). Since 2011, the county received about 27,000 workplace complaints from its population of 110,000 employees, covering a range of allegations, including age and sexual orientation discrimination.

Sexual harassment is among the top complaints. Since July, more than 3,000 complaints of alleged sexual harassment, race discrimination, and inappropriate conduct were submitted to the county. County personnel stated that since recent high-profile sexual allegations have surfaced in the news, the county’s Equity Oversight Panel has seen an increase in the filing of sexual harassment complaints. The county anticipates the number of overall complaints for the fiscal year will double by the summer.

What Should Employers Do?

Operating in this environment of heightened awareness requires employers to reassess their policies and procedures for dealing with workplace harassment.

Employers should take all reports and complaints of harassment seriously and follow best practices for conducting investigations and taking appropriate action in response to investigation findings. Supervisors at all levels—including front line and lower level supervisors—should be trained so that they know what to do when a complaint is made.

Employers must ensure they are complying with the various requirements set by California law regarding harassment communication, prevention, and training:

Provide all new hires pamphlet (DFEH-185) or a copy of the employer’s policy.

Maintain, post, and distribute, a prohibition against harassment, discrimination, and retaliation policy meeting the essential elements under California Government Code section 12950(b).

Employers with 50 or more employees must provide two hours of AB 1825 training every two years to all supervisors, and to all new supervisors within six months of hire or promotion.

Investigate all complaints promptly, conducting a fair, thorough, and impartial investigation.

Document all steps taken in investigations, including follow up with the complainant.

Ensure no retaliation takes place for participating in an investigation or making a complaint.

In addition, the threshold for harassment is seemingly lowering in the public sphere. Whether that transfers over to the legal system is yet to be seen. In this environment, a proactive employer may consider taking additional measures to address and prevent harassment beyond the minimum requirements set by law.

Employers with questions, or who need to update their policies and forms, or who would like to explore enhanced preventative measures, may contact the author or their usual counsel at AALRR. AALRR will be conducting an special update webinar on December 8 at 11:00 a.m. concerning these topics.