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Twenty-Year Sexual Harassment Retrospective: A Celebration of Progress, A Confirmation of What Works, A Commitment to Continuous Change

In 2018, twenty years after the landmark 1998 decisions Farragher1 and Ellerth,2 in the viral #MeToo movement and high-profile harassment complaints splashed across the media, many feel a tidal wave of change; a movement to claim equality and fairness in the workplace. Those of us who have been working to eradicate employment discrimination for years recognize that these are not new complaints or issues. The publicity and outrage over the latest wave of allegations show how far we have come in understanding and opposing harassment, and that is a great thing. We salute the opponents of employment discrimination, from long before we began working in this field, through the twenty-plus years’ worth of complainants we have witnessed firsthand, to those speaking up today, and we thank you for your courage. But while the cultural movement that is afoot is important and significant, the necessary actions to maintain a respectful workplace free of discrimination and harassment are unchanged since Employment Practices Solutions, Inc. (EPS) began assisting employers.

While the problem of sexual harassment is age-old, it was not formally illegal until relatively recently. Certainly, the Civil Rights Act of 1964, and Title VII specifically, barred employment discrimination “on the basis of sex,” but it was not until 1977 when quid pro quo sexual harassment was identified as a violation of Title VII and three years later, in 1980, when the Equal Employment Opportunity Commission (EEOC) identified hostile workplace harassment as proscribed by the same law. Although the U.S. Supreme Court affirmed the 1977 and 1980 principles in 1986, courts continued to hone and define the theories as well as the standard for liability. These decisions culminated in the Farragher and Ellerth decisions, which held a strict liability for employers in cases of hostile work environment under certain circumstances and laid out a two-part defense for employers when a supervisory level employee was the harasser. To avoid liability, an employer must prove that it exercised reasonable care to prevent and correct the harassing behavior, and that the complainant unreasonably failed to utilize any grievance mechanisms provided by the employer.

Before opening the doors of EPS in 1996, we represented employers in addressing harassment and discrimination claims at all levels in our legal practice: the employee’s internal complaint, the EEOC Statement of Position, in front of a jury and a judge. In our practice, it was impossible to ignore certain themes that still hold true today. Many employers are intent on doing the right thing, but do not know what that is. Secondly, there are employers who are aware of methods to reduce harassment in the workplace, yet they are overwhelmed with issues relevant to running their businesses and do not have the bandwidth to create a process for education and for complaint investigation. Finally, some employers, once a serious complaint or a highly public scandal hits, are fully engaged in an effort to eradicate the problem, yet do not have the personnel necessary to effectuate that effort. Of course, there are employers that fall outside these categories, and, for whatever their reasons, do not care about preventing or correcting sexual harassment.

But in our legal practice, the more employers we worked with, the more often we saw these themes play out. Why was there not a better resource to assist these employers in educating their workforces and management and leveraging their internal talent to support their non-discrimination policies? So often our clients could have avoided sitting in front of a high-priced attorney, or worse, in front of a jury in a courtroom, by proactively taking steps to ensure the safety of their employees. Many a manager stated, “if only I had known how to handle her complaint, I wouldn’t be here today.” The germ of an idea was formed during those years: a consulting group that could support employer efforts to provide education on appropriate workplace behavior and to conduct impartial, thorough investigations of employment discrimination.

At the same time, a shift was occurring in workplaces throughout the U.S., one toward more flexibility and work/life balance. We wanted flextime and work-from-home (known as “telecommuting,” back then) for ourselves, and we realized the tremendous advantage it would give us in attracting and retaining talented consultants, all of whom would be licensed attorneys, if we were to offer those benefits to them as well. It seemed like the smart thing to do as well as the right thing. Time has proven these early instincts to be true.

We launched EPS in 1996, and established a core mission: “Preventing, Correcting, Enhancing.” Preventing employment claims; Correcting personnel problems; Enhancing employee relations. Two years after we opened our doors for business, the U.S. Supreme Court rendered its Farragher and Ellerth decisions. While these holdings certainly affected the law, they did little to change EPS’s core mission.

Although EPS offers many services to support our mission, the core business of EPS was and has always been training and investigations. Farragher and Ellerth reinforced our business model and proclaimed to the business community the importance of training and policies as the most obvious demonstrations of “exercising reasonable care to prevent and correct harassment,” along with the creation and adherence to an effective, impartial complaint procedure that the victim can utilize, one that includes prompt, thorough, impartial investigations that result in appropriate remedial action.

Education: Throughout our decades of working as consultants, training has become a mainstream expectation for both employees and courts and with that, the requirement that anti-harassment and discrimination training be relevant, interesting, and useful has only become weightier. “An employer who asserts training as an example of how it exercised reasonable care to prevent harassment must show that the training was adequate -- training employees just for the sake of ‘checking it off’ will not likely be sufficient to avoid or limit liability.”3 While “adequate” is an arguably subjective term, it is unquestionable that meaningful training is the goal. “The training needs to address realistic situations that your employees might encounter to have an impact. This means that your training should incorporate relevant industry examples and be tailored to the actual policies and procedures in place and functions performed by your workforce, down to the terms of art the materials and trainer use to describe ‘employees’ and various levels of management.”4 Often, group training does not meet all of the employer’s needs and individualized coaching is required. This effort on the part of an employer to “exercise reasonable care” by customizing a training program for a specific executive can be all-important in the defense of a complaint. While the expense of such an endeavor is relevant, one could “argue that it's akin to an insurance policy, to avoid costly employment decisions that could result in bad hires, expensive performance management and, worst-case, lawsuits.”5

Proactive Investigations: The headlines are filled with news about investigations into employee complaints about top executives, owners of sports teams, and politicians. While the news of these investigations has escalated, the fact remains that these efforts toward fact-finding have remained prevalent and necessary for over twenty years. Prompt, thorough, impartial investigations handled by a knowledgeable, experienced investigator, with appropriate confidentiality and an eye toward preventing retaliation are crucial to establishing the facts. Employers can only take effective and appropriate action when they have complete, accurate information. Well-handled investigations and the resulting corrective actions even become part of the employer’s defense, should litigation occur, putting not just the investigation but also the choice of investigator on trial.6 Thus, when choosing the investigator, “… it’s important that the person who’s going to be investigating have the authority to dictate what the investigative process looks like without interference …”7 Because “an outside investigator is an independent fact finder,”investigators, like those from EPS, avoid even the appearance of interference or partiality by the employer or institute of higher learning.9 If investigations are conducted in-house, consideration should be given to the proper training of those investigators and establishment of consistent procedures. EPS is often called upon to assist in those efforts.  

Finally, while training and investigations have remained our core business, we could not fulfill our mission to prevent employment claims without an overarching push toward encouraging and assisting employers to create respectful work environments. From our earliest days, we have published articles that remain relevant today, that speak to our view that the same law that prevents harassment on the basis of sex prohibits it on the basis of all protected categories, and that the best employers—and the most successful at preventing and correcting claims—go beyond the law in fostering respectful workplaces.10 

It’s hard to believe it’s been twenty years since the Faragher and Ellerth decisions. Twenty years. That’s twenty times “five hundred and twenty-five thousand, six hundred minutes.”11 How do you measure twenty years in the landscape of sexual harassment and anti-discrimination efforts? At EPS, we measure it in the courageous voices that have spoken out, are speaking now, and have yet to speak up, voices that would remain silent if not for the slow, painstaking progress achieved through providing a safer environment for people to raise concerns and gain redress about workplace misconduct. To us, it is thousands and thousands of hours of training employees, coaching executives, interviewing witnesses, analyzing facts for investigation reports, assisting employers as we all do our part in complying with the law and building more respectful environments, and striving to help make the world a better place, one workplace at a time.

1 Faragher v. City of Boca Raton, 524U.S. 775, 118S. Ct. 2275 (1998).
2 Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257 (1998).
3 Lori Waxman, Esq., EPS Senior Consultant, “Harassment and Discrimination Training: Not a One-Time Deal,” published EPS 9/6/17; Citing, EEOC v. Management Hospitality of Racine, Inc., 666 F.3d 422 (7th Cir. 2012) (although management was required to take harassment training, the training was inadequate and employer did not engage in good faith efforts to educate its employees about harassment); Clark v. United Parcel Service, Inc., 400 F.3d 341 (6th Cir. 2005) (court held that effective harassment policy should provide for training regarding the policy and rejected employer's affirmative defense because there was no evidence of training); Bishop v. Woodbury Clinical Laboratory, 2010 WL 1525922 (M.D. Tenn. 2010) (court rejected the employer's affirmative defense despite the fact that the employer had an existing anti-harassment policy that was published and provided to all of its employees, because there was no evidence offered to demonstrate that the employees understood the policy or received any training on the policy and reporting obligations).
4 Rachelle Weathersby, Esq., EPS Senior Consultant, “Beyond the Hype: Quality Anti-Harassment Training Delivers Results,” published EPS 6/28/2016;
5 Denise Kay, Esq., SPHR, SHRM-SCP, EPS Senior Consultant, “When to Coach Your Executives,” published EPS 10/1/2014;
6 Ginger McRae, Esq., SPHR, SHRM-SCP, EPS Senior Consultant, “An Insider’s Guide to Employment Practices Experts,” published EPS 5/1/2016;
7 Stephanie Davis, Esq., SPHR, SHRM-SCP, EPS President, “Workplace Investigations: 5 Pitfalls to Avoid” Podcast, aired 10/23/2017;
8 Carrie O’Gara, Esq., former EPS Senior Consultant, “You Might Want to Take it Outside,” published EPS 2013;
9 Susan Sorrells, Esq., SPHR, EPS Senior Consultant, “Title IX: Prompt, Thorough and Impartial Investigations for the Win,” published EPS 4/12/2017;  
10 Pamela Fagan Hutchins, Esq., SPHR, SHRM-SCP, EPS Co-Founder, “Mohammed, You Too Are My Brother:
Preventing Backlash Against Muslim and Arab-Americans in the Workplace,” published EPS 9/2001;
Laurie Jones, Esq., SPHR, SHRM-SCP, EPS Co-Founder, “Creating Working Environments that Enhance Retention and Productivity,” published EPS 1/2001;        
11 "Seasons of Love,” Songwriters: Jonathan D. Larson, Composer, Seasons of Love lyrics © Universal Music Publishing Group.