He Said, She Said, They Said #MeToo: Best Practices for Managing Workplace Sexual Harassment Claims

He Said, She Said, They Said #MeToo:
Best Practices for Managing Workplace
Sexual Harassment Claims
Presented by: Lindsay Fiore and Lindsey Davis
April 24, 2018

Presenters
Lindsey Davis
414.277.3073
lindsey.davis@quarles.com
2
Lindsay Fiore
602.229.5717
lindsay.fiore@quarles.com

Today's Agenda
1. Discussion of #MeToo and #TimesUp
2. Impacts of these movements:
• Proposed and enacted legislation
• Impact on volume of administrative and court claims
• Uptick in suits alleging inadequate investigations
3. Best practices for employers:
• Fine-tuning your anti-harassment policy
• Conducting anti-harassment training
• Investigating and resolving allegations of sexual
harassment
1
© 2018 Quarles & Brady LLP

The #MeToo Movement
• What is the #MeToo movement?
• Viral social media campaign to demonstrate
the widespread prevalence of sexual assault
and harassment
• Followed public revelations of numerous
sexual misconduct allegations against
Harvey Weinstein
• Since October 2017, the phrase has been
posted online millions of times, usually
accompanied by a personal story of sexual
harassment or assault
4© 2018 Quarles & Brady LLP

#MeToo and Workplace Sexual Harassment

The #TimesUp Movement
• What is the #TimesUp movement?
• A movement against sexual harassment
founded by Hollywood celebrities in
January of 2018
• Founding initiatives include:
• A legal defense fund to support lower-
income women seeking justice for sexual
harassment and assault in the workplace
• Advocating legislation to punish companies
that tolerate persistent sexual harassment
• Encouraging gender parity in studios and
talent agencies
• #TimesUp has raised $20 million for its legal
defense fund and gathered over 200
volunteer lawyers

#MeToo and #TimesUp: Raising More than Awareness?
1. Legislative Impact:
• The Tax Act (effective December 22, 2017)
 Ordinarily, employers may deduct ordinary and necessary business expenses, including
settlement payments and legal defense fees
 The government will no longer permit employers to deduct any settlement related to
sexual harassment or sexual abuse, or any related legal fees, if the settlement is subject
to a nondisclosure agreement
• Congress has introduced legislation that would make it illegal for businesses
to enforce arbitration agreements if employee allegations involve sexual
harassment or gender discrimination

1. Legislative Impact, Cont.:
• Many states are proposing legislation
relating to workplace sexual
harassment:
• NY, NJ, PA, CA, and WA have introduced bills
that would limit the use of confidentiality
agreements in sexual harassment cases
• NY and SC have proposed bills which would
prohibit mandatory arbitration of sexual
harassment claims

2. Claims by Victims
• Employers are reporting an upsurge in
internal complaints of sexual
harassment in the wake of #MeToo and
#TimesUp
• So far, the EEOC reports no significant
change in number of sexual harassment
claims filed
• But employee demands have increased,
suggesting that the upsurge may be
forthcoming
• Successful claims can result in significant
liability and reputational damage

The High Cost of Sexual Harassment Claims
• 21st Century Fox and Bill O'Reilly
• In January of 2017, O'Reilly and Fox settled a claim of sexual
harassment brought by a network analyst for $32 million.
• This was the sixth such settlement relating to O'Reilly.
• Despite its knowledge regarding this pattern of sex harassment
allegations, 21st Century Fox extended O'Reilly's contract.
• The settlements subsequently became public and numerous
advertisers boycotted O'Reilly's show.
• Ultimately resulted in O'Reilly's ouster
• Fox News and Roger Ailes
• Former broadcaster Gretchen Carlson alleged that Ailes
sexually harassed her. When Carlson refused to sleep with
Ailes, her employment contract was not renewed.
• Carlson sued and ultimately received a $20 million settlement.
• Ailes subsequently resigned, receiving a $40 million severance.
• Additional lawsuits followed.

The High Cost of Sexual Harassment Claims
• Beyond Hollywood and Media Outlets:
• $41.3 million award to retail chain employee who
made numerous complaints that a manager was
harassing her, which the employer largely ignored
until the manager sexually assaulted the employee
• Ashley Alford v. Aaron's Rents
• $8.5 million award to client service associate at
financial services firm who alleged that a male
broker made sexually inappropriate comments to
her and was subsequently fired
• Carla Ingraham v. UBS Financial Services

3. Suits Alleging Inadequate Investigations
• Phramus, Inc. v. Metropolitan Opera Ass'n
(2018)
• Top company officials were notified of
complaints against the plaintiff on numerous
occasions.
• Once notified by the police of sexual misconduct
allegations, the employer launched its own
investigation, ultimately firing the plaintiff in the
midst of a social media scandal.
• The plaintiff filed suit alleging that he had not
been given a reasonable opportunity to respond
to the accusations against him.
• Seeking $5.8 million in damages

3. Suits Alleging Inadequate Investigations, Cont.:
• TS Media Inc. v. Public Broadcasting Service
(2018)
• PBS investigated complaints of workplace
misconduct against one of its talk show hosts.
• During its investigation, PBS did not inform the
host of the names of his accusers or the specific
allegations against him. At close of investigation,
PBS fired the host.
• The host then filed suit against PBS alleging that
the employer's investigation was "biased" and "in
violation of norms and procedures for conducting
workplace investigations."

In the Midst of It All, What's an Employer to Do?
1. Create and Demonstrate an Inclusive Atmosphere
• Acknowledge the #MeToo and #TimesUp movements and
your company's commitment toward combatting sexism,
harassment, and other inappropriate behaviors in the
workplace.
• Be aware of the risk factors for harassment and take steps
to minimize them.
• Encourage employees to come forward if they witness or
are subject to harassment.
 And provide the resources for them to do so
• Demand professionalism at every level.
 Ensure that your managers are modeling good behavior and calling
out bad behavior

2. Thoroughly Review and Revise Your
Applicable Policies
• Anti-Harassment Policy Musts:
 Definition of sexual harassment
 Examples of prohibited conduct
 Defined reporting procedure
 Statement against retaliation

Anti-Harassment Policy Musts
Definition of Sexual Harassment:
 Two types:
• Hostile Environment – Employee subjected to sex-related conduct that is severe and
pervasive enough to be abusive and hostile
• Quid Pro Quo – The employer, usually through a supervisor, conditions favorable
employment action upon submitting to a request for sexual favors or takes an adverse
employment action when a request for a sexual favor is denied.

 Unwelcome conduct of a sexual nature that adversely affects or interferes
with an employee's work environment
• Unwelcome – to the recipient or to others
• Conduct of a Sexual Nature – can be:
• Visual (e.g. sexually-oriented photographs or emails),
• Verbal (e.g., sexually explicit jokes, propositions, commentary), and
• Physical (e.g., gesturing or touching)
• Adverse Impact – while trivial or isolated incidents typically do not violate the
law, employers should act on them

 Harassment can be perpetrated by
anyone, regardless of their gender,
gender identity, or sexual
orientation
 Harassment can be perpetrated by
non-employees, including temporary
workers, independent contractors,
vendors, and customers
 Harassment can include off-duty
conduct

Examples of Prohibited Conduct:
• Cover the obvious, and the not-so-obvious
 Unwelcome physical contact
 Viewing pornographic or sexually explicit materials
 Sexual propositions
 Ogling, leering, staring
 Sexual innuendoes or jokes
 Sexually suggestive sounds or gestures
 Rating a person's looks or sexuality
 Repeatedly asking an employee out for dates
 Asking an employee about his/her sex life
• Circumstances matter

Defined Reporting Procedure
• Multiple reporting channels
 No less than two
 Third-party hotline, if possible
• Encourage prompt reporting...
 We want the opportunity to investigate before issues
escalate.
• ...and assure prompt investigation
 This is key from a culture perspective.

Statement Against Retaliation
• Assure employees that filing good faith
reports will not negatively affect their
employment
• Remind employees to promptly report any
suspected retaliation

3. Train, Train, and Train Some More
• Where feasible, training should occur annually
• Train your managers and your non-managers
 All employees should be equipped to spot and
appropriately respond to sexual harassment.
 Managers are on the front lines and often are the most
likely recipients of complaints.
• Reconsider the traditional approach
 In-person, rather than electronic/video-based
 Not just compliance, but culture
• Make your (up-to-date) training materials
accessible
• Consider bringing in the experts

4. Investigate Complaints Swiftly and
Thoroughly
 Investigation Procedure Musts:
 Investigate every complaint
 Investigate promptly and thoroughly
 Practice good documentation
 Practice good communication

Investigation Procedure Musts
Investigate every complaint
• Beware of the serial complainers
 Because eventually, they'll get it right!
• The failure to investigate a sexual
harassment complaint can have serious
repercussions:
 Escalating behavior by alleged
perpetrator
 Elimination of key legal defense
 Damage to perception of culture

Investigate promptly and thoroughly
• Courts have found that delays of as little as one month were not sufficiently prompt and warranted
an award of punitive damages.
• Immediately acknowledge the complaint and let the employee know that you take the issue
seriously.
• Determine the appropriate investigator
 Someone not involved in the situation
 Skills necessary to conduct a thorough and effective investigation
• Interview the complainant
 Exhaust all incidents
 Determine potential witnesses and other evidence
• Interview the respondent and witnesses
• Review and preserve evidence
• Prepare a final report

Practice good documentation
• For the love of your lawyers, remember
that your documents may become exhibits
• When documenting interviews:
 Keep it contemporaneous
 Stick to the facts
 Limit use of jargon
 Date, time, people in the room
• When preparing the final report:
 Summarize evidence
 Make conclusions
 Identify any disciplinary or remedial measures

Practice good communication
• Don't overpromise confidentiality
• You may endeavor to keep an investigation
confidential, but some people will have to know
– including the alleged harasser.
• Don't keep the complainant or the
respondent guessing
• Communicate your anticipated timeline and any
deviations.
• Communicate when you've completed your
investigation.
• Remind both parties of your policy prohibiting
retaliation.
• Encourage the complainant to come forward
with additional concerns.

Thank You
29
Lindsay Fiore
602.229.5717
lindsay.fiore@quarles.com
Lindsey Davis
414.277.3073
lindsey.davis@quarles.com
© 2018Quarles & Brady
LLP ‐ This document
provides information of a
general nature. None of
the information contained
herein is intended as legal
advice or opinion relative
to specific matters, facts,
situations or issues.
Additional facts and
information or future
developments may affect
the subjectsaddressed in
this document. You should
consult with a lawyer
about your particular
circumstances before
acting on any of this
information because it may
not be applicable to you or
your situation.

Scenarios To Discuss
(Time Permitting)

Stump the Speaker – Hypothetical 1
• In the midst of the #MeToo movement, Janet, a long-time production
associate at Whimsical Widgets, sent her own #MeToo tweet out to
the Internet universe. In it, Janet alleged that over the course of the
last three years, a manager has sent her lewd photos and repeatedly
asked her on dates via Facebook messenger. Janet's friend and co-
worker, Carl, sees the tweet and alerts you, the human resources
manager.
Should the company investigate?

• You make the decision to investigate, and schedule a meeting with
Janet. When you speak with her, she confirms that Martin, a shift
manager at Whimsical Widgets, has been and continues to send her
inappropriate photos and messages. The messaging does not happen
during working hours or using a Company device. Janet requests that
you take no further action, referencing a fear of retribution.
Should you honor Janet's request?

• Months later, Charlie, a customer service representative with an aptitude
for complaining, approaches you with a concern. Charlie reports that one
of his co-workers, Sandra, made him feel uncomfortable during an
afternoon coffee break. Charlie demands that you take action. You quickly
review Sandra's file and note that there are no similar complaints against
her. On the flip side, you know that Charlie's file is chock-full of
unsubstantiated complaints against his co-workers and you have several
other matters that need your attention.
Do you further investigate?

• You decide to investigate, interviewing Charlie and Sandra. Neither are
able to identify any witnesses to the interaction. Charlie reports that
Sandra massaged his shoulders in the breakroom, called him "honey," and
asked him out. Sandra is mortified and certain that Charlie misinterpreted
the situation. She reports that following a particularly stressful shift during
which Charlie made a number of errors, she squeezed his shoulder as she
approached him the breakroom, stated "you doing ok, honey?," and
offered to buy Charlie (an old friend) a beer.
What, if any, further action should you take?

He Said, She Said, They Said #MeToo: Best Practices for Managing Workplace Sexual Harassment Claims

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He Said, She Said, They Said #MeToo: Best Practices for Managing Workplace Sexual Harassment Claims