This document discusses the history and impact of the #MeToo movement and sexual harassment laws. It provides a timeline of key sexual harassment laws from 1964 to present. It defines hostile work environment and quid pro quo harassment. The document examines employer liability and the importance of effective anti-harassment policies and investigations. It provides examples of sexual harassment, questions to ask during investigations, and steps employers should take to correct harassment and prevent future issues.

1. 1
The #MeToo Movement
and its impact upon
the workplace
By Larry Grudzien
Attorney at Law

2. 2
The History of Sexual Harassment Law
Civil Rights Act of 1964
(known as Title VII) was
passed—prohibits
employment
discrimination based on
race, color, sex, religion,
or national origin
Title IX of the
Education
Amendments was
passed—prohibits sex
discrimination in
schools who receive
federal funding
Equal Employment
Opportunity
Commission (EEOC)
states that sexual
harassment is a form
of sex discrimination
prohibited by Title VII
US Supreme Court rules
that sexual harassment is a
form of sex discrimination
prohibited by Title VII in
Meritor Savings Bank v.
Vinson, 477 U.S. 57, 106
S. Ct. 2399, 91 L. Ed.2d 49
(1986)
1964 1972 1980 1986
The History of Sexual Harassment Law
2
Civil Rights Act of 1964
(known as Title VII) was
passed—prohibits
employment
discrimination based on
race, color, sex, religion,
or national origin
Title IX of the
Education
Amendments was
passed—prohibits sex
discrimination in
schools who receive
federal funding
Equal Employment
Opportunity
Commission (EEOC)
states that sexual
harassment is a form
of sex discrimination
prohibited by Title VII
USSupreme Court rules
that sexual harassment is a
form of sex discrimination
prohibited by Title VII in
Meritor Savings Bank v.
Vinson, 477 U.S. 57, 106
S. Ct. 2399, 91 L. Ed.2d 49
(1986)
1964 1972 1980 1986
2

3. 3
The History of Sexual Harassment Law
The Civil Rights Act of 1991 is
passed—Title VII was modified to
add more protection against
discrimination in the workplace
• Right to a trial by jury in
federal court in Title VII cases
• Right to compensatory and
punitive damages—subject
to caps based on the size of
the employer
1991 1994
Violence Against Women
Act of 1994 is passed — it
amended Rule 412 of the
Federal Rules of Evidence —
limits the admissibility of
evidence of past sexual
history of a plaintiff in
sexual harassment case
Congressional Accountability
Act of 1995 (CAA) passed—
applied VII and other
employment laws to Congress
& the Legislative Branch
1995

4. 4
State Laws
• Catalyzed by the MeToo movement, state legislators have introduced around
200 bills to strengthen protections against workplace harassment in the past
two years, and to date, 15 states have passed new protections
• New York City has also been particularly active in strengthening its
anti-harassment laws.

5. 5
• 13 STATES LIMITED OR PROHIBITED EMPLOYERS from requiring
employees to sign nondisclosure agreements as a condition of
employment or as part of a settlement agreement
• 5 STATES EXPANDED WORKPLACE
HARASSMENT PROTECTIONS to
include independent contractors,
interns, or graduate students
for the first time
State Laws

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• 4 STATES AND NEW YORK CITY EXTENDED THEIR STATUTE OF LIMITATIONS
for filing a harassment or discrimination claim
• 10 STATES AND NEW YORK CITY ENACTED KEY PREVENTION MEASURES,
including mandatory training and policy requirements for employers
State Laws

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It has Morphed into a Cultural Phenomenon
• In the weeks since The New York Times and The New Yorker first broke stories
of the Hollywood producer Harvey Weinstein’s decades-long abuse of women
he worked with, the hashtag #MeToo has exploded on social media as a vehicle
for women to share their stories. For perhaps the first time in history, powerful
men are falling, like dominos, and women are being believed
• But the #MeToo moment has become something
larger: a lens through which we view the world,
a sense of blinders being taken off
—Jessica Bennett, The New York Times

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Impact of the #MeToo Movement
• A survey conducted by a nonprofit
called Stop Street Harassment reports
that 81% of women and 43% of men
had experienced some form of sexual
harassment during their lifetime

9. 9
Receipts of EEOC Charges Alleging
Sex-based Harassment
FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016 FY 2017
Receipts 12,695 12,461 12,569 12,379 12,146 12,573 12,860 12,428

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2018 Statistics
• The EEOC reports that there has not been any drastic increase in the
number of sexual harassment complaints actually filed with the
EEOC since the fall of 2017
• However, this can be explained in part due to the 300 day time limit
for filing EEOC Claims
• EEOC reports that its web traffic has tripled since the
#MeToo Movement exploded

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Preparations for Increase in EEOC Investigations
into Workplace Harassment
• Congress has appropriated an additional $16 million to the EEOC to
fight workplace sexual harassment discrimination
• It is expected that the EEOC will take advantage of the awareness
generated by the #Me Too Movement and will aggressively pursue
sexual harassment complaints
• "Our challenge is to use this #MeToo moment well. We have a road map
given the work we have done at the EEOC. We have the attention and
commitment of the range of different actors in society that we need. Together,
we can channel that energy to create significant and sustainable change “
— EEOC Commissioner Chai R. Feldlum, June 11, 2018

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Impact on Lawsuits Initiated by the EEOC
• The EEOC will undoubtedly take a more aggressive approach in filing
lawsuits on behalf of claimants alleging workplace harassment
• In June, 2018, the EEOC filed 7 lawsuits
against employers in various jurisdictions
across the country
• EEOC launched a new online portal in
November, 2017 that will make it easier
for individuals to file workplace
harassment complaints with the agency

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2017 EEOC Enforcement Guidance on
Unlawful Harassment:
Five key measurements to preventing and remedying harassment
• Strong and committed leadership of the organization
• Regular and proven accountability
• Robust and comprehensive harassment policies
• Reliable and accessible complaint procedures including prompt and
thorough investigations of harassment
• Routine, interactive training tailored to the specific workforce and workplace

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• Pursuant to a recent
NPR poll, over ½ of the
individuals interviewed
agreed that “it can be hard
sometimes to tell what is
sexual harassment and
what is not”
Is Your Organization Prepared for
the #MeToo Movement?
? ?

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What the Law Considers to be Workplace Harassment
• Workplace behavior becomes unlawful when it is consists of UNWELCOME
CONDUCT, whether verbal, physical or visual, BASED ON A PERSON’S SEX,
color, race, religion national origin, age, disability, etc
• Sexually explicit jokes, posters, gestures or remarks, ethnic slurs,
mocking a person’s religious practices or beliefs
• Segregating workers based on race or gender

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The Two Types of Workplace Harassment
Hostile Work Environment:
• It applies to all forms of harassment, including whether it is based on
sex, race, disability, etc.
Quid Pro Quo:
• “This for That.” A person in a position of authority, typically a supervisor,
demands sexual favors as a condition to getting or keeping a job benefit

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Hostile Work Environment
• Verbal, physical or visual forms of harassment, that are sexual in nature,
"sufficiently severe, persistent, or pervasive" and unwelcome fall under the
category of Hostile Environment Sexual Harassment
• A single, severe incident, such as a sexual assault, could create a hostile
environment
• More commonly, a "hostile environment" is created by a series of incidents
• Focus is on impact of the behavior, not the intent

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Hostile Work Environment
• Pornography
• Vulgar language
• Sexual touching
• Sexual propositions
• Degrading comments
• Embarrassing questions
• Sexual jokes
Courts are likely to find an illegal hostile work environment where there is:

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“Of a Sexual Nature”
Nonverbal:
• Looking up and down a person’s body; derogatory gestures
or facial expressions of a sexual nature; following a person
Visual:
• Posters, drawings, pictures, screensavers, emails or
test of a sexual nature

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Quid Pro Quo
Examples of threats
Not getting hired
Getting fired or a
bad evaluation
Not getting a raise
or promotion
Being excluded
from a group

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Quid Pro Quo
Examples of rewards
Getting hired
Getting a promotion
Getting a raise or
other special treatment
Getting a preferred
work schedule
Being included as part
of a group
Getting a better grade or
review on an evaluation

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Examples of Sexual Harassment
• Unwanted jokes, gestures, offensive words
on clothing, and unwelcome comments and
witty responses
• Touching and any other bodily contact such
as scratching or patting a coworker's back,
grabbing an employee around the waist,
or interfering with an employee's ability
to move
• Repeated requests for dates that are turned
down or unwanted flirting

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• Transmitting or posting emails,
texts, or pictures of a sexual or
other harassment related nature
• Displaying sexually suggestive
objects, pictures, or posters
• Playing sexually
suggestive music
Examples (continued)

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EMPLOYER LIABILITY

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Liability Depends on Who the Harasser is
• Supervisor—Employers are strictly liable for the acts of supervisors if the
conduct culminates in a tangible employment action such as:
• Employee is terminated
• Employee is demoted
• Employee is refused a promotion or new position
• Employee’s hours are cut
• Any other job conditions that could be
viewed as a tangible employment action

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Well Written Anti-harassment Policy is Critical
to Avoid Liability
If no adverse employment action exists, the employer may be able to
escape or limit liability by establishing an affirmative defense that includes
two necessary elements:
• The employer exercised reasonable care to prevent and promptly correct
any harassing behavior
• The employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer
to avoid harm otherwise

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Anti Harassment Policies are Critical
• The only way to escape liability for supervisor harassment that does not
cause a tangible employment action is for the employer to establish that
it had an effective policy in place that gave the employee the ability to
report and get the harassment to cease
• The employer can demonstrate that the employee failed to take
advantage of these opportunities provided in the employer policy

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EFFECTIVE ANTI-HARASSMENT
POLICIES

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Effective Policies
An anti-harassment policy and complaint procedure should contain, at a minimum,
the following elements:
• A clear explanation of prohibited conduct
• Assurance that employees who make complaints of harassment or provide
information related to such complaints will be protected against retaliation
• A clearly described complaint process that provides accessible avenues of complaint
• Assurance that the employer will protect the confidentiality of harassment
complaints to the extent possible
• A complaint process that provides a prompt, thorough, and impartial investigation
• Assurance that the employer will take immediate and appropriate corrective action
when it determines that harassment has occurred

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LIABILITY FOR CO-WORKER
HARASSMENT

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Co-worker Harassment Liability
Employer’s are liable for Co-worker (Non-supervisor) harassment
if the employee proves:
• The Employer knew or should have known of the harassment; and
• The Employer failed to implement prompt and appropriate corrective action
It remains critical that the Employer maintain effective anti-harassment policies to
avoid liability for co-worker harassment
• How does employer avoid liability because it “should have known”
of the harassment?
– Surveys
– Training; Seminars for Employees
– Meetings with employees; supervisors

32. 32
EFFECTIVE INVESTIGATIONS
ARE KEY

33. 33
Effective Investigations
The investigator should interview:
• The complainant
• The alleged harasser
• The supervisors of the
parties involved
• Third parties who may
have knowledge of the
relevant circumstances

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• Information relating to the personal lives
of the parties outside the workplace is relevant
only in unusual circumstances
• The investigator should refrain from
offering opinions during the interview
• A record of each interview
should be maintained
Effective Investigations

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• Who, what, when, where, and how: Who committed the alleged harassment?
What exactly occurred or was said? When did it occur and is it still ongoing?
Where did it occur? How often did it occur? How did it affect you?
• How did you react? What response did you make when the incident(s) occurred or afterwards?
• How did the harassment affect you? Has your job been affected in any way?
• Are there any persons who have relevant information? Was anyone present when the
alleged harassment occurred? Did you tell anyone about it? Did anyone see you
immediately after episodes of alleged harassment?
• Did the person who harassed you harass anyone else? Do you know whether anyone
complained about harassment by that person?
• Are there any notes, physical evidence, or other documentation regarding the incident(s)?
• How would you like to see the situation resolved?
• Do you know of any other relevant information?
Questions to Ask the Complainant
Effective Investigations

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Effective Investigations
• What is your response to the allegations?
• If the harasser claims that the allegations are false,
ask why the complainant might lie
• Are there any persons who have
relevant information?
• Are there any notes, physical evidence, or other
documentation regarding the incident(s)?
• Do you know of any other relevant information?
Questions to Ask the Alleged Harasser

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• What did you see or hear? When did this occur? Describe the alleged harasser’s
behavior toward the complainant and toward others in the workplace
• What did the complainant tell you? When did s/he tell you this?
• Do you know of any other relevant information?
• Are there other persons who have relevant information?
Effective Investigations
Questions to Ask Third Parties

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Credibility Determinations
• Inherent plausibility: Is the testimony believable on its face? Does it make sense?
• Demeanor: Did the person seem to be telling the truth or lying?
• Motive to falsify: Did the person have a reason to lie?
• Corroboration: Is there witness testimony (such as testimony by eye-witnesses,
people who saw the person soon after the alleged incidents, or people who
discussed the incidents with him or her at around the time that they occurred)
or physical evidence (such as written documentation) that corroborates
the party’s testimony?
• Past record: Did the alleged harasser have a history of similar
behavior in the past?
Effective Investigations

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• Once all the evidence is in, interviews finalized, and credibility
determinations made, management should make a determination
as to whether the harassment occurred
• The determination can be made by the investigator or by a management
official who reviews the investigator’s report
• The parties should be informed of the determination
• If no determination can be made because the evidence is inconclusive,
the employer should still undertake further preventive measures such as
training and monitoring
Effective Investigations
Reaching a Determination

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IMMEDIATE AND
APPROPRIATE CORRECTIVE ACTION
SHOULD BE TAKEN

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Examples of Measures to Stop the Harassment
and to Prevent Future Events
• oral or written warning or reprimand
• transfer or reassignment
• demotion
• reduction of wages
• suspension
• discharge
• training or counseling of harasser to ensure that s/he understands why his or
her conduct violated the employer’s anti-harassment policy
• monitoring of harasser to ensure that harassment stops

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Examples of Measures to Correct the Effects of the
Harassment
• restoration of leave taken because of the harassment
• expungement of negative evaluation(s) in employee’s personnel file
that arose from the harassment
• reinstatement
• apology by the harasser
• monitoring treatment of employee to ensure that s/he is not
subjected to retaliation by the harasser or others in the workplace
because of the complaint
• correction of any other harm caused by the harassment
(e.g., compensation for losses)

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QUESTIONS?

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Contact Information
• Larry Grudzien, Attorney at Law
• Phone: 708-717-9638
• Email: larry@larrygrudzien.com
• Website: www.larrygrudzien.com