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#MeToo: The Challenges and The Remedies in 2019

Responding to the workplace implications of the #MeToo movement was the focus of many human resources and employment law efforts in 2018. At EPS, we saw investigations activity more than double from the previous year while training initiatives held steady. We see 2019 as an opportunity to build on the work we've all done in immediate response to #MeToo and to lay a long-term foundation for a productive, engaged and respectful workplace.   
We are embarking on our 23rd year on the front-line of these issues through our collaborations in the workplace and educational environments to promote respect. As we begin 2019, we understand that organizations that responded to the challenges highlighted by the #MeToo movement in 2018 must reinforce and continue to build on those efforts. We offer three suggestions:

  • Lay the groundwork and build it. Nearly 60% of women in a recent Time magazine poll indicated that their workplaces have not changed in the past year, and 51% say they are no more likely to report sexual harassment now than before the hashtag went viral. The policies and procedures that act as operating guidelines for organizations require an in-depth review in the face of changing cultural norms. Meaningful change begins with education - even lawmakers and staff in Congress are now required to undergo sexual harassment training every year, and employers and educators must view their training efforts as an on-going investment in not only preventing harassment and discrimination, but reinforcing codes of conduct and bright lines of what is and is not acceptable behavior.
    Additionally, on-going training efforts allow us all to move beyond the basics and deepen understanding of increasingly critical concepts like unconscious bias and inclusion. Live training with ample discussion and interaction is a critical part of honing organizational culture, communicating policy and establishing an environment based on respect. One and done training is not enough.
  • Prepare for complaints. The demand for responsive, objective and unbiased workplace complaint investigations is higher than ever. 2018 charges filed with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment increased 12% over 2017. The EEOC filed 61 lawsuits - 41 of which included allegations of sexual harassment - and recovered $70 million through litigation and administrative enforcement. EEOC enforcement costs to employers underestimate the actual payouts made by employers in response to sexual harassment charges as the EEOC litigates only a fraction of the charges it receives. Clearly, awareness of harassment has been raised and organizations must be prepared to handle the inevitable complaints - a challenge for any internal investigation mechanism. Complaints should be addressed with prompt, impartial and thorough investigations, during which the investigator(s) must be mindful about protecting those involved from being branded by a complaint as well as preserving any attorney-client privilege that might apply with respect to internal or external counsel who is connected to the situation. Internal compliance investigations, when handled properly, minimize risk and help to avoid costly litigation and judgments. A well-trained, impartial and thorough investigator who understands the importance of confidentiality, the investigative process, documentation and the law is critical.
  • Leverage experts. Human resources professionals are often the unsung heroes of organizations under cultural and economic pressure. Whether it's recognizing that an outside investigator will provide the organization with the objectivity it needs, that an Affirmative Action Plan will drain the organization of both time and money, or that the volume of complaints coming into the organization is overwhelming the organization's ability to respond appropriately, outside expertise can be the remedy for organizations that lack the bandwidth or the specific expertise in specialized areas. Leveraging outside experts can be both efficient and economical.     
 As 2019 unfolds, we remain on the front lines as organizations move to solidify their commitments to building respectful workplaces.