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#MeToo

MeToo

"#MeToo" By Laura Schrick and Holly Rogers

The hashtag “#MeToo” went viral in October 2017 in a movement to denounce sexual assault and harassment, particularly in the wake of sexual misconduct allegations against many people in the public eye. On Facebook, the hashtag was used by more than 4.7 million people in 12 million posts during the first 24 hours. Time Magazine named “The Silence Breakers” as its “Person of the Year” for 2017. Time featured a plethora of men and women who represent “the voices that launched a movement” and those who came forward to denounce their sexual harassers and abusers.

A study by the Equal Employment Opportunity Commission (EEOC) showed that when women were asked if they had experienced “sexual harassment” without that term being defined, one in four (25%) reported experiencing “sexual harassment” in the workplace. When women were asked if they experienced one or more specific behaviors, such as unwanted sexual attention, the rate rose to 40%. Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 as well as state laws. So how do we prevent it in the workplace, and if it happens to you, what can you do?

As an employer, what should you do to prevent sexual harassment in the workplace?
Employees are every company’s greatest asset. Fostering a culture that respects and rewards employees results in a strong, engaged and motivated workforce. Taking steps to prevent and address sexual harassment fosters this culture. It also avoids emotional suffering by those involved, as well as work place tensions, declines in workplace morale, and management confidence and employee turnover. In short, it is good for business.

So what should employers do to prevent sexual harassment, and what is the proper way to respond to a complaint by an employee?
1. Have a Corporate Culture of Leadership and Accountability
The first step in creating a sexual harassment prevention program is to implement a culture of respect in which harassment is not tolerated. The organization should strive from the top down to model respect for all people with whom it interacts, and particularly its employees. The company should professionally and objectively investigate and respond to any complaints or incidents that may arise. No one should be exempt from the company’s policies and disciplinary procedures. Sufficient resources should be allocated for harassment training and prevention, and sufficient time should be spent to implement the program.
2. Institute a Clear Policy
A good sexual harassment policy is easy to understand and regularly communicated to all employees. Make it clear that your company has a zero-tolerance policy for sexual harassment. Include the policy in employee handbooks and post it in common areas. Clearly define “sexual harassment” and consider using the EEOC website or corporate counsel for help (https://www.eeoc.gov/laws/types/sexual_harassment.cfm). Your policy should also make it explicit that complainants and witnesses are protected from retaliation
3. Adequately Train Employees
Employers should offer regular compliance trainings that include the company’s sexual harassment policy and company procedures for reporting sexual harassment. In addition, supervisors and mid-level employees should be trained on how to properly respond to a sexual harassment complaint. Those documenting and investigating the complaint must also be trained and should consult legal counsel for direction as needed. Finally, “bystander training” is becoming more prevalent. Bystander training gives coworkers the tools needed to intervene when they witness harassing behavior and furthers a culture of zero-tolerance.
4. Respond Appropriately
If a sexual harassment complaint is made, a proper investigation should be conducted and, if harassment did occur, discipline should be imposed in a timely, consistent, and proportional way. Employers should hold mid-level managers and front-line supervisors accountable for implementing company policy and responding properly to reports of sexual harassment. Specifically, they should take all complaints seriously and report and document incidents of potential harassment.
5. Have an Open Door Policy
If an employee makes a sexual harassment complaint, listen. Ask the employee to tell you the whole story in his or her own words. Listen and take notes to document the conversation. Write down important facts such as dates, times, situations, and possible witnesses. Assure the person that a fair and just investigation will be conducted on their behalf. In addition, interview the person who is accused of sexual harassment, and apply the same respectful and listening approach. The sexual harassment policy should encourage victims of sexual harassment to report the behavior.

As an employee, what should you do if you experience sexual harassment?
The most common workplace responses to sexual harassment are to avoid the harasser, downplay the gravity of the situation, or attempt to ignore or endure the behavior. This happens for a number of reasons—fear that others will think the accusation is a lie, inaction on their claim, being blamed, and social or professional retaliation.
1. Report the Harassment
In cases that do not involve a tangible change in employment status (ie., suspension, termination, loss of promotion), the Supreme Court of the United States has said that you must report sexual harassment before you can sue your employer. You must give them the opportunity to correct the situation. Under Title VII, an employer may avoid liability for harassment if the employer can demonstrate: (1) it took reasonable steps to prevent and promptly correct sexual harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of the employer's preventive or corrective measures. This principle often is referred to as the "Faragher/Ellerth affirmative defense." Therefore, it is essential that you report the sexual harassment. Provide detailed information—explain the situation, give examples, offer names of witnesses, and explain the impact the harassment has had on you.
2. Follow the Policy
If your employer has a policy on how to report sexual harassment, follow the policy. For example, some company policies will designate someone to whom harassment must be reported, so if your company has designated certain staff as being responsible for receiving complaints, you should start there. If your employer does not have a specific policy for reporting, consider bringing your complaint to your immediate supervisor. If your supervisor is the individual committing the harassment in question, make the complaint to their immediate supervisor or HR.
3. Put it in Writing
Document everything. Keep a record of all incidents of sexual harassment, including demands for sex, sexual comments, and any different treatment you may have received after reporting the harassment. Keep those notes in a safe place, preferably not at work. Make written notes of the reports you make to your employer as well. Even if complaints of sexual harassment are made verbally to your supervisor, follow up with an email with something like: “This will confirm our conversation on January 1, 2018 in which I reported sexual harassment by John Doe.” Make sure you keep copies of all emails and correspondence in a safe place, and not on the company’s computer system or company cell phone where it could be lost or destroyed.
4. Take Care of Yourself
Employees experiencing sexual harassment are more likely to report symptoms of depression, stress, anxiety, PTSD, and overall impaired well-being. These feelings are very natural and not your fault. Do your best to make the time you need for yourself. Practice self-care and do not be afraid on lean on your friends and family. Consider seeking professional help if needed.
5. Call an Attorney and Consider Legal Action
Discussing your situation with an attorney experienced in employment discrimination and retaliation matters may help alleviate some of your stress and anxiety. You should feel free to contact an attorney as soon as something happens at work so that he or she can advise you on your rights and ways to potentially address the situation.
For example, if you have reported the sexual harassment to your employer and the employer has failed to take action or the sexual harassment continues, the attorney may advise you to file a charge with the Equal Employment Opportunity Commission (“EEOC”), which is the federal agency charged with enforcing anti-discrimination laws, your state’s Human Rights Commission, or both. There are strict time limits for filing your charge. These time frames vary by state but are often 180 or 300 days from the date of the act at issue. Filing a charge for sexual harassment qualifies as “sex discrimination” under Title VII for purposes of your charge. A charge is a legal document that defines the parameters of the EEOC or state agency’s investigation and, by extension, your case. Your attorney can help you navigate this process and assist you in stopping it and protecting your rights to a legal remedy.

Laura Schrick is a shareholder at MMR who focuses her practice in civil and commericial litigation, employment law, and personal injury. Holly Rogers is a law clerk at MMR who is in her third year at Saint Louis University School of Law.

Professional Services Disclaimer: Please note that the information presented here is as an educational service, and while it contains information about legal issues, it is not legal advice. No warranty is made regarding the applicability of the information presented to a particular client situation, and the information set forth is not a substitute for original legal research, analysis and drafting for a particular client situation.

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