#MeToo After Year 2: What In-House Counsel Need to Know

Sexual harassment has been illegal for decades. But as news reports surfaced in fall 2017 about Harvey Weinstein’s sexual abuse allegations, everything changed when actress Alyssa Milano took to Twitter asking women to share their stories of sexual harassment by using #MeToo. The hashtag, which was created years prior by civil rights activist Tarana Burke, quickly went viral, and #MeToo became a forceful movement that continues to gain momentum more than two years later.

It should come as no surprise that as the popularity of the #MeToo movement grew, reports of workplace harassment to federal and state agencies also jumped. From fiscal year 2017 to 2018, the Equal Employment Opportunity Commission (EEOC) saw a 13.6% increase in charges alleging sexual harassment, and a 2018 Edison Research survey found that 21% of Americans have experienced workplace sexual harassment. But for businesses, what is arguably most concerning is that of the individuals who reported experiencing harassment in the Edison study, only 30% strongly agreed that their employer handled it properly. This means 70% of those employers have changes to make.

The Legal and Business Case for Preventing Workplace Harassment

It goes without saying that a harassment-free workplace is good for business. In most cases, workplace harassment is not a problem just between the victim and harasser; it’s an issue for all employees at all levels. Here’s why: first and foremost, it’s illegal. Employees experiencing workplace harassment can file charges against an employer with federal, state and local agencies. These charges can lead to costly litigation before the public, negative press and intense scrutiny for in-house counsel. There are also other less tangible implications. When harassment occurs, employees know about it, they are talking about it, and they assume their employer knows about it, too, and yet is doing nothing. This undermines employees’ trust, lowers company moral, siphons workplace energy,and reduces productivity. Ultimately, all of this can lead to a tarnished brand and lost customers, clients and profits.

Having informed employees, and responding swiftly and appropriately to rumors and complaints of harassment can help minimize these business interruptions and potentially eliminate legal liability altogether.

Stop Harassment Before It Starts: Prevention Through Training

Having employees that are well informed of workplace harassment policies and reporting mechanisms is a critical component to any company’s harassment prevention strategy. Employees are more likely to report internally, as opposed to externally, when they know how to internally report sexual harassment and what internal steps to take to get the issue resolved. This can be accomplished through effective workplace harassment trainings provided by qualified trainers to all company employees on a regular basis.

Harassment trainings are not only recommended—in some states they are now required. Over the past several years, numerous states have introduced and passed laws that require employers to implement varying degrees of sexual harassment training programs. Additionally, the BE HEARD in the Workplace Act is pending before the U.S. Congress and would, among other things, require mandatory harassment training for businesses across the country. Given the growth in this area—which is leading to additional requirements on businesses—in-house counsel should stay informed.

Best Practices for Internal Investigations

After a harassment complaint is filed, in most cases it will be necessary to conduct an internal investigation. Assigning the right individual to conduct it is a critical first step. First, assess whether the investigation should be protected by attorney-client privilege. If so, qualified inside or outside counsel should be utilized. In all cases, whether it’s human resources, inside or outside counsel, or management that is conducting the investigation, the investigator should be trained and impartial.

Next, the investigator should develop a written investigation plan. To do this, the investigator will need to study the allegations and prepare witness and document lists. This may require the investigator to work with other departments to access documents, to understand which documents may not be available (such as personnel files), and to coordinate witness interviews. The plan should be updated as the investigator proceeds and can be used as a tool throughout the process to ensure that nothing falls through the cracks.

When ultimately meeting with witnesses, one important thing investigators should know is that confidentiality often cannot be guaranteed. Instead of “whatever we talk about stays between us,” an investigator should give confidentiality guarantees that are consistent with good business practices and the law. An investigator can work with management to come to an agreement about how much information stays confidential, but full anonymity may hinder the investigation and in most cases is not practical.

An internal investigation can be a lengthy process, replete with unexpected turns. New or duplicative allegations may come to light, and contradictory stories may be told. During the course of an investigation, investigators should aim to do the following:

• Project integrity, ethics and compliance
• Be neutral and timely
• Build rapport with witnesses
• Be accurate and seek the truth

On the flip side, these are some don’ts when conducting an internal investigation:

• Don’t promise confidentiality when not possible
• Don’t intimidate or play “bad cop”
• Don’t discount allegations without investigation
• Don’t discharge, demote or retaliate against the complainant

Once the investigator is satisfied with the evidence obtained, depending on the nature and extent of the investigation, it may be appropriate to prepare an investigation report. The report should contain all evidence gathered—mitigating and inculpatory—and ultimately describe the truth of the situation. After the report is written, the file should be maintained and preserved; not all reports are shared publicly, so an investigator should ensure that only the correct people have access to the completed report.

Pay Heed to Legal Developments on the Horizon

At some point after the investigation is complete or if litigation is threatened, it may become necessary to resolve a claim of harassment with the complainant. In such circumstances, in-house counsel should be careful not to rely upon old form settlement agreements because they may not comply with current state laws. Confidentiality clauses are standard in settlement agreements, prohibiting the parties from disclosing the settlement terms and any underlying facts. However, public criticism of confidentiality clauses exploded after it came to light that previous accusers of Larry Nassar, Harvey Weinstein, Kevin Spacey and others had signed settlement agreements with confidentiality clauses, arguing the clauses protected and encouraged repeat offenders. Following this criticism, many states passed or introduced laws that prohibit or substantially limit the use of nondisclosure agreements, confidentiality clauses and mandatory arbitration agreements in harassment cases. For example, New York prohibits mandatory arbitration and nondisclosure clauses in harassment claim settlement agreements, unless the victim prefers confidentiality. Although businesses often consider nondisclosure clauses to be a benefit of a nonlitigation-based resolution, the changing landscape means in-house counsel must be aware of what is legal and what laws apply to settlement agreements: raising questions of jurisdiction, venue and choice of law.

The #MeToo movement exposed significant flaws in the way workplace harassment has been handled. Moving forward, in-house counsel have ample opportunity to work toward preventing and handling workplace harassment by remaining vigilant, respecting the complainant’s rights and staying abreast of local and federal law.

Reprinted with permission from the “January 22, 2020” edition of “Corporate Counsel” © 2020 ALM Media Properties, LLC. All rights reserved.
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