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#MeToo, #TimesUp, and the Changing Legal Landscape

02-20-2019
By Sheila McAndrew, Esq.

Autumn of 2017 brought with it a wave of attention to successive allegations of workplace sexual harassment against powerful individuals in the public eye,1 even prompting Time Magazine to award its 2017 Person of the Year to “The Silence Breakers.”2 MeToo3 and TimesUp4 hashtags became pervasive and intense conversations ensued regarding what is and isn’t appropriate workplace behavior. How has the law measured up to the movement? 

Not surprisingly, since the recent focus on #MeToo, the U.S. Equal Employment Opportunity Commission (EEOC) has been busy upholding the prohibition against sexual harassment covered by the 1964 Civil Rights Act. Between 2017 and 2018, traffic to the sexual harassment page of its website more than doubled.5 The EEOC has seen an increase both in the number of sexual harassment charges filed with the agency (13.6 percent increase in 2018 over 2017) as well as in the number of lawsuits filed by the EEOC to challenge workplace sexual harassment (50 percent increase in 2018 over 2017).6 In 2018, the EEOC recovered over $70 million for those alleging workplace sexual harassment.7 This was an increase from 2017, when only $47.5 million was recovered.8 This is consistent with our experience at EPS, wherein 2018, we saw investigations activity more than double from 2017.9

Many states are now seeking to go beyond federal law; in 2018 alone, at least 20 states proposed their own new legislation seeking to prevent sexual harassment in the workplace.10  

Some states require preventative training across all industries, and a number of these are ongoing (e.g., annual) requirements. In the early 1990s, Maine11 and Connecticut12 were the first to require broad sexual harassment training. California followed suit enacting AB 1825 in 2004, and the state further expanded its requirements following #MeToo.In 2018, New York State enacted interactive workplace sexual harassment training requirements covering employers of all sizes, with New York City almost simultaneously enacting its own set of training requirements. Delaware’s training law is the most recent, having taken effect in January 2019.13  

Some states take their own unique approach to preventative sexual harassment training. For example, Oregon has specific sexual harassment training requirements for workers in the janitorial industry,14 and a number of states require training for government employees.15 A large number of states that don’t legally require training programs, recommend them.

Training is essential not only to comply with these regional requirements, but a robust training program can be integral in limiting employer liability when allegations of sexual harassment are made under federal law. The U.S. Supreme Court created a framework enabling employers to limit liability by showing they took steps to prevent harassment by: 1) implementing a policy, 2) training all employees on that policy, and, 3) further, by taking prompt remedial action upon becoming aware of any harassment.16

In addition to preventative training, a number of states are focused on prohibiting sexual harassment in other ways. One increasingly popular approach is to prohibit the use of non-disclosure agreements in matters of sexual harassment.17 This prohibition grew out of a concern that those in power might use confidential settlements to repeatedly engage in harassing behavior without appropriate accountability. This approach, however, is not without controversy, as some employer advocates argue that removal of the option to confidentially resolve disputes via settlement may result in longer resolution times, increased litigation, and may even create a disincentive to work towards a mutually beneficial resolution.

In addition to satisfying legal requirements, preventative training programs are invaluable to employers in helping to create and strengthen respectful workplaces. Having an opportunity to examine thought-provoking scenarios and talk through appropriate responses and actions as part of a training session provides management and employees with powerful tools that can be empowering when such situations arise. 

Given this intense focus on workplace sexual harassment, last year, the EEOC reconvened its Select Task Force on the Study of Harassment in the Workplace to discuss “Transforming #MeToo into Harassment-Free Workplaces.” During that session, Suzanne Hultin, Program Director of the National Conference of State Legislatures concluded, “I do not expect this topic to die down any time soon and anticipate many states introducing [sexual harassment] legislation in the 2019 legislative sessions.”18 Employers should stay tuned for the implementation of additional legal requirements and ideally, move forward with meaningful, interactive sexual harassment training as part of their commitment to building organizations committed to respect. 

1 Editors, USA Today, After Weinstein: More than 100 High-Powered Men Accused of Sexual Misconduct, November 22, 2017, USAToday.com, https://www.usatoday.com/story/news/2017/11/22/weinstein-aftermath-all-men-accused-sexual-misconduct/884778001/.
2 Stephanie Zacharek, Eliana Dockterman, and Haley Sweetland Edwards, Time Person of the Year 2017: The Silence Breakers, December 18, 2017, Time.com, http://time.com/time-person-of-the-year-2017-silence-breakers/.
3 During 2018, there were 19 million uses of the MeToo hashtag on Twitter. Statistics from the Pew Research Center, How Social Media Users have Discussed Harassment since MeToo Went Viral, October 11, 2018, http://www.pewresearch.org/fact-tank/2018/10/11/how-social-media-users-have-discussed-sexual-harassment-since-metoo-went-viral/ft_18-10-11_metooanniversary_hashtag-used-19m_times/.
4 Katie Richards, The TimesUp Movement Dominated Social Media During the Golden Globes, January 18, 2018, adweek.com, https://www.adweek.com/brand-marketing/the-timesup-movement-dominated-social-media-during-the-golden-globes/.
5 EEOC, What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment, https://www.eeoc.gov/eeoc/newsroom/wysk/preventing-workplace-harassment.cfm.
6 Id.
7 Id.
8 Id.
9 #MeToo: The Challenges and The Remedies in 2019, EPS Whitepaper, January 9, 2019.
10 Suzanne Hultin, Addressing Sexual Harassment in the Workplace, National Conference of State Legislatures, LegisBrief, May 2018, Vol. 26, No. 17, http://www.ncsl.org/research/labor-and-employment/addressing-sexual-harassment-in-the-workplace.aspx.
11 26 Me. Rev. Stat. Annot., c. 7, §807(3).
12 Conn. Gen. Stat. § 46a-54;  Conn. Agencies Regs. § 46a-54-204. 
13 19 Del. Code, c. 7,  §711A(g).
14 Or. Rev. Stat. §658.412.
15 See, e.g., NEV. Admin. Code CH. 284, §496 (requiring all state employees to be trained); 4 Pa. Code §7.595 (requiring sexual harassment training for state agency employees).
16 Amy Nickell Jacobs, Esq., Farragher/Ellerth to Fox News: The More Things Change, the More They Stay the Same, EPS Whitepaper, March 23, 2017.
17 In 2018, sixteen states introduced legislation to limit the use of nondisclosure agreements by private employers in sexual misconduct cases I. Kathy Gurchiek, States Take Action Against Non-Disclosure Agreements, August 28, 2018, SHRM.org, https://www.shrm.org/resourcesandtools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/pages/states-take-action-against-nondisclosure-agreements.aspx.
18 EEOC, Select Task Force on the Study of Harassment in the Workplace to discuss “Transforming #MeToo into Harassment-Free Workplaces,” Written Testimony of Suzanne Hultin, June 2018, https://www.eeoc.gov/eeoc/task_force/harassment/hultin.cfm.