The document summarizes a presentation on best practices for employers to manage workplace sexual harassment claims in the wake of the #MeToo and #TimesUp movements. The presentation discusses the impacts these movements have had, including proposed legislation, increased harassment claims, and lawsuits alleging inadequate investigations. It also outlines best practices for employers, such as fine-tuning anti-harassment policies, conducting anti-harassment training, and thoroughly investigating and resolving harassment allegations. Hypothetical scenarios are presented at the end to illustrate issues employers may face.

1. He Said, She Said, They Said #MeToo:
Best Practices for Managing Workplace
Sexual Harassment Claims
Presented by: Lindsay Fiore and Lindsey Davis
April 11, 2019

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

3. 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

4. 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

5. #MeToo and Workplace Sexual Harassment
5

6. 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
6

7. #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
7

8. #MeToo and #TimesUp: Raising More than Awareness?
1. Legislative Impact, Cont.:
• Many states are proposing legislation
relating to workplace sexual
harassment:
• IL, 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
8

9. #MeToo and #TimesUp: Raising More than Awareness?
2. Claims by Victims
• Employers are reporting an upsurge in internal
complaints of sexual harassment in the wake of
#MeToo and #TimesUp
• A recent report from a leading servicer of
corporate compliance hotlines (Navex Global)
indicates that internal sexual harassment
complaints increased by around 25% from 2017 to
2018
• Suggesting a shift in employees' tolerance for harassment
• As of October 2018, EEOC reports that sexual
harassment charges are up 12%
• This is the first time this number has gone up in 5 years
• Visits to the EEOC's sexual harassment page when up by more than
100%
• Successful claims can result in significant liability
and reputational damage
9

10. 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
10

11. 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
• $7.65 million award to a teenager working at Chipotle;
alleged her 26 year-old manager made comments about
her breasts, touched her breasts, and ultimately sexually
assaulted her
• $6.5 million award in punitive damages against founder of
Bikram Yoga following trial on claims of sexual harassment
and sexual assault
• $1.75 million jury verdict for dental assistant where
manager made sexual comments, grabbed her breast and
buttocks. Manager also denied her a raise unless she
agreed to go to Las Vegas with him
• Economic damages were only $16,000
11

12. The High Cost of Sexual Harassment Claims
12
• Lawsuits against high profile employers describing workplaces that
resemble "fraternity" culture
• Complaints often include allegations that employer:
• Encouraged women to dress or act a certain way
• Retaliated against women who complained of sexual harassment
• Allowed inappropriate behavior, including at employer-sponsored events
where drinking was encouraged
• Examples include recent lawsuits against Jones Day and Google:
• Lee v. Google, Inc. – Plaintiff claims Google enforced a "bro" culture where co-
workers spiked her drinks, regularly shot nerf guns at her, asked for "horizontal
hugs" and hid under her desk
• Tolton et al. v. Jones Day – Class action against one of the largest law firms in
the world claims men were groomed for partnership and women were not;
plaintiffs allege women were encouraged to wear high heels and to smile
more, were referred to as "eye candy," and women's support groups were
mocked by male colleagues

13. The High Cost of Sexual Harassment Claims
13
• In addition to monetary damages, employers also risk
serious reputational harm:
• 20K Google employees staged a walkout due to workplace
"bro" culture and following a NYT investigation which revealed
that the company gave a $90 mm payout to a top executive
despite its determination that the sexual misconduct
allegations against the executive were true
• In September 2018, McDonald’s workers in six cities conducted
a one-day walkout to protest rampant sexual harassment,
already the subject of litigation
• Consumers showing increased willingness to boycott
products or services if they disagree with employers' values
• Lawsuits or internal investigations often lead to executives
having to step down amidst allegations that they did little to
address workplace culture

14. #MeToo and #TimesUp: Raising More than Awareness?
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 defamation and
claiming that he had not been given a
reasonable opportunity to respond to the
accusations against him
• Seeking $5.8 million in damages
14

15. #MeToo and #TimesUp: Raising More than Awareness?
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"
15

16. 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
16

17. In the Midst of It All, What's an Employer to Do?
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
17

18. 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
18

19. Anti-Harassment Policy Musts
Definition of Sexual Harassment:
 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
19

20. Anti-Harassment Policy Musts
Definition of Sexual Harassment:
 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
20

21. Anti-Harassment Policy Musts
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
21

22. Anti-Harassment Policy Musts
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
22

23. Anti-Harassment Policy Musts
Statement Against Retaliation
• Assure employees that filing good faith
reports will not negatively affect their
employment
• Remind employees to promptly report any
suspected retaliation
23

24. In the Midst of It All, What's an Employer to Do?
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
24

25. In the Midst of It All, What's an Employer to Do?
4. Investigate Complaints Swiftly and
Thoroughly
 Investigation Procedure Musts:
 Investigate every complaint
 Investigate promptly and thoroughly
 Practice good documentation
 Practice good communication
25

26. 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
26

27. Investigation Procedure Musts
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
27

28. Investigation Procedure Musts
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
28

29. Investigation Procedure Musts
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
29

30. Questions?

31. Thank You
31
Lindsay Fiore
602.229.5717
lindsay.fiore@quarles.com
Lindsey Davis
414.277.3073
lindsey.davis@quarles.com
© 2019 Quarles & 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
subjects addressed 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.

32. Scenarios To Discuss
(Time Permitting)

33. 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?
33

34. Stump the Speaker – Hypothetical 1
• 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?
34

35. Stump the Speaker – Hypothetical 2
• 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?
35

36. Stump the Speaker – Hypothetical 2
• 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?
36
© 2019 Quarles & 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 subjects addressed 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.