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Employment Law 2020: Embracing the Challenges

On the threshold of our 25th year working to promote respect, we at EPS are prepared to embrace 2020 and the challenges that organizations and communities across the nation face in navigating evolving compliance requirements, cultural sea changes, and competitive global environments. We offer three resolutions for the New Year:

Embrace prompt, thorough, and impartial investigations. The #MeToo movement laid bare practices and behaviors that create toxic environments and undermined the core underpinnings of respectful cultures. No longer can leadership turn a blind eye to borderline inappropriate behavior – let alone outright complaints. Response to concerns and complaints must be quick, thorough, and most of all, unbiased. A well-trained, impartial and thorough investigator who understands the importance of confidentiality, the investigative process, documentation, and relevant law is critical. A perfunctory internal investigation, a pre-investigation assessment of the complainant’s credibility or the supposed severity of the conduct, or succumbing to the request of a complainant not to investigate are obviously hazardous in terms of potential liability, but also can be devastating to efforts to promote morale and support a safe and respectful organization.

Hone your education initiatives. Many organizations revisited training offerings in the wake of #MeToo. In the two years since the watershed events, many states implemented sexual harassment training requirements and other organizations took it upon themselves to get in front of the issues by providing anti-harassment training. Don’t stop there. On-going education efforts allow us to move beyond the basics and deepen understanding of increasingly critical concepts like unconscious bias, bystander considerations, and inclusion. The EEOC strongly recommends live training sessions with ample discussion and interaction as a critical part of honing organizational culture, communicating policy, and establishing an environment based on respect. One and done training is not enough.

Look to the experts. Now more than ever the prospect of litigation looms. According to the EEOC, sexual harassment complaints rose 13.6 percent in 2019 and they recovered $56.6 million for victims of sexual harassment, an increase over the prior year of more than $10 million. Litigants in sexual harassment and other discrimination cases may gain a strategic advantage by using an employment practices expert or an expert on harassment in the educational context to provide an opinion on policies and practices that are relevant to the claims. The party bringing the case, the plaintiff, may benefit from an expert who can describe generally accepted practices in, for example, the legitimacy of an investigation, training efforts, the response to complaints, and discipline. Employers and universities, by the same token, may aid their defense with an expert who can speak to their actions and whether they are consistent with accepted practices in the relevant area. Juries benefit from the expertise of a seasoned practitioner’s experience-based explanation of generally accepted practices. Should litigation ensue, an expert who can closely review the litigation facts and circumstances and provide an insightful assessment of the case and articulate testimony at trial can be an invaluable resource.

As 2020 unfolds, we remain committed to collaborating with leaders across industries to put into action renewed commitments to building respect within all organizations.