The Pendulum Has Swung in Response To #MeToo

Much has been written about the #MeToo movement over the past several months, and, justifiably, this will continue to be the case until such time as sexual harassment is no longer plaguing our society. The attention this movement has gotten has not gone unnoticed by politicians at both the state and local level, resulting in efforts to address workplace sexual harassment through legislation entering uncharted waters.

States and cities have enacted, or are on the verge of enacting, laws that create a host of new requirements for employers. Some jurisdictions now require interactive anti-harassment training, with additional mandatory training for management-level employees. It is also expected that attorneys in jurisdictions that have not yet enacted similar legislation will likely point to the requirements in place in other jurisdictions as evidence of the minimum level of preventative measures that employers should be implementing to combat sexual harassment.

Approaching the issue from a different perspective, other legislation makes it illegal to settle workplace sexual harassment claims with a nondisclosure or confidentiality agreement. In some jurisdictions this rule is triggered once an employee has filed with a court or an administrative agency. Some state and local politicians are also pushing back on the use of arbitration clauses that prevent harassment cases from being litigated in court.

Finally, California lawmakers adopted an expansive definition of sexual harassment which provides that sexual harassment cases are "rarely appropriate for disposition on summary judgment." This will most certainly have an important impact on litigation involving workplace sexual harassment in the Golden State. We can expect to see continued legislative activity at the state and local levels designed to address workplace sexual harassment.

Next Steps: Employers must make it their business to know applicable sexual harassment laws by tracking legislation in jurisdictions where their employees work. This will help to ensure compliance with regulations that apply to training, drafting arbitration agreements, and drafting settlement agreements. It is especially important to be aware of the prohibition of nondisclosure and confidentiality agreements because that will have a profound impact on how claims are handled. In jurisdictions where nondisclosure and confidentiality agreements related to sexual harassment claim settlements are now prohibited, employers must now weigh the risk of negative publicity that may come with settling a claim that has been filed in court or with an administrative agency, and they may conclude that litigation is the only viable option. This will cause some employers to fully litigate claims that would otherwise have been resolved, because of the fear of publicity, through settlement.

While it is likely that the attention on this issue and the related legislative efforts will curb instances of workplace harassment and discrimination, it is unlikely that they will ever be completely eradicated. The best practice for employers is to ensure that they create an environment where employees are comfortable with stepping forward with concerns or claims and that they have implemented a viable process for early and satisfactory resolution. It is always good practice to head off the smaller issues before they became major and to resolve the larger ones before claims are filed in court or with governmental agencies. In the event it does become necessary to litigate a sexual harassment claim, the better the training and processes an employer has in place, the more likely that the employer will receive a favorable outcome.

If you have any questions, please feel free to contact David Gabor, head of The Wagner Law Group's employment law practice.