September 14, 2018

#TimesUp: Employers Brace for #MeToo Related Litigation, Legislation

What began last October with the Harvey Weinstein scandal, has resulted in a tidal wave of sexual harassment and assault accusations on social media under the hashtag #MeToo, and a public reckoning for dozens of high profile men in Hollywood, broadcast journalism, Fortune 500 companies and beyond. The movement has put sexual harassment and gender discrimination in the workplace at center stage, and has sprung another hashtag: #TimesUp.

The Time’s Up movement was sparked by an open letter published in the New York Times in November 2017 from the Alianza Nacional de Campesinas (the National Farmworker Women’s Alliance.) The letter claimed to have been written on behalf of 700,000 domestic female farmworkers, shining a light on the sexual harassment they have collectively experienced.

It should be no surprise that there is pent up anger and frustration among women across all industries and socioeconomic backgrounds. In 2016, the Equal Employment Opportunity Commission (EEOC) released a report detailing the findings of the Task Force on the Study of Harassment in the Workplace. According to the report, 1 in 4 women in the workplace have experienced sexual harassment on the job.

One byproduct of these movements is a deluge of complaints to human resources departments across the country. Human resource consultants are having trouble keeping up with their burgeoning caseloads of harassment investigations. We will likely see an uptick in EEOC and California Department of Fair Employment and Housing (DFEH) charges as well as private lawsuits.


Preventing Harassment

Employers should take this opportunity to examine their anti-harassment policy as well as the effectiveness of their training programs. In California, sexual harassment prevention training has been mandated for supervisors since AB 1825 was first enacted in 2005. Since then, the requirements for trainers has been expanded and California farm labor contractors must provide sexual harassment prevention training to certain employees. FLC training requirements were expanded in January of this year with the passage of SB 295.

Indeed, federal law requires all employers, regardless of size, to take all reasonable steps to prevent harassment and stop it once it’s been discovered. Strong anti-harassment policies and training is a critical first step. Beyond that, a growing number of employers have implemented an anonymous hotline for employees to report sexual harassment and other misdeeds. An advantage of an anonymous hotline is that it may encourage employees to use the company’s internal reporting mechanism where the complaint can be addressed by the company, rather than the complainant seeking redress through a third party such as the EEOC or an attorney. Hotlines also have the benefit of ensuring the complaint is handled properly rather than potentially being dismissed by a supervisor. While sound policies, effective training and trusted reporting avenues are great tools to address and prevent sexual harassment in the workplace, as well as limit potential liability, employers must critically assess their company’s culture and work environment to determine if the company may be fostering an environment where harassment may be allowed to flourish.


Legislative Response

Seizing on the #MeToo movement, members of the California Legislature (and one in particular) are sponsoring a set of bills aimed at addressing sexual harassment in the workplace.

AB 3080 by Assemblywoman Lorena Gonzalez Fletcher (D-San Diego), would prohibit employers from requiring applicants or employees to arbitrate employment-related claims rather than go to court as a condition of employment. While the bill is being pushed as a measure to address sexual harassment, the bill would apply to any claim under the Labor Code or Fair Employment Housing Act.  The measure has already passed the Senate and is now on the governor’s desk.

Another bill sponsored by Hannah Beth Jackson (D-Santa Barbara), SB 1300, would also place certain limits on requiring the employee to sign a release of claims or nondisparagement agreement.

Gonzalez Fletcher’s AB 3081 would require a client employer to share with a labor contractor all civil legal responsibility and civil liability for harassment for all workers supplied by that labor contractor.

SB 820, also by Gonzalez Fletcher, would ban the use of confidentiality agreements to conceal allegations and facts related to sexual harassment, assault and discrimination cases. SB 1038 by Assemblywoman Connie Leyva (D – Chino) provides that an employee is personally liable for an act of retaliation if that same employee committed the underlying act of harassment that prompted the complaint.

Western Growers and other business groups are pushing back, reminding legislators that these bills will result in a significant increase in lawsuits. As we approach the end of the legislative session at the time of this writing, it’s important to note that these bills may be amended, gutted, held in committee, or otherwise subject to change. While Western Growers takes elimination of harassment in the workplace seriously, the Association will keep members apprised as we learn the fate of these and other bills. In the meantime, employers should take all steps necessary to ensure they are not caught up in the #MeToo movement.