Guidance for Employers in the Wake of the #MeToo Movement

    The #MeToo movement—in which women and men have used social media to share their stories of sexual harassment[1]—has had wide-reaching effects. The movement has exposed harassment by esteemed entertainers, businesspeople, and newsmen, resulted in numerous termination decisions, and, some say, has “destigmatize[ed]” the issue for victims of sexual abuse and harassment. [2]

    Notwithstanding the impact of the #MeToo movement, it has not (at least for the time being) changed the legal framework for workplace-related employment harassment claims and lawsuits. Below is a reminder of key principles governing such claims, and guidance for minimizing exposure to liability for such claims.

1.               Employers May Be Held Liable for Severe or Pervasive Harassment.

    Federal law does not prohibit all workplace harassment, but instead prohibits harassment that is so “severe or pervasive” as to “alter the conditions of employment and create an abusive working environment.”[3] Whether misconduct is considered severe or pervasive depends on, among other things, its frequency and severity, whether it was physical in nature, and whether it unreasonably interfered with an employee’s work performance.

    To be actionable, misconduct must be considered hostile from an objective viewpoint (i.e., from the viewpoint of a reasonable person in the plaintiff’s position) and subjectively (i.e., the complaining employee must not have welcomed the conduct, and instead must have actually thought the conduct was hostile).[4]

2.               Not All Harassment Is Related to Sex.

     Harassment is actionable under federal and state laws when it is based on or related to a protected status. Although the #MeToo movement has focused almost exclusively on sexual harassment, federal and state law prohibit workplace harassment based on all protected statuses (such as religion, national origin, race, color, age, disability, or military status; and in the case of many states and localities, sexual orientation and transgender status).

3.               Whether a Company Is Liable for Harassment Depends on Who the Bad Actors Are, What the Company Knows, and How the Company Responds.

    Whether the perpetrator is a supervisor is a critical fact in determining whether an employer can be held liable for his or her misconduct.[5]

    Harassment by non-supervisors: An employer can only be held liable for harassment by a non-supervisor if the employer was negligent in controlling the working conditions.[6] Practically, this means an employer can be liable where (1) management-level employees knew or should have known of the misconduct; and (2) management unreasonably failed to stop the misconduct.[7]

    Harassment by supervisors: An employer will be held strictly liable for harassment by a supervisor that culminates in a “tangible employment action” of the victim, such as a demotion or firing.[8] If no tangible employment action occurs, the employer may be vicariously liable for severe or pervasive harassment, unless the employer can show: (1) the company exercised reasonable care to prevent and correct properly any harassing behavior; and (2) the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer or to otherwise avoid harm.[9]

4.               Employees Must “Administratively Exhaust” Their Claims Before Suing.

    Employees may sue an employer for sex harassment only after they have filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) or similar state-law agency, and only after the agency completes its investigation and advises the claimant she may sue.[10] Employees generally must bring a charge of harassment within 300 days of the misconduct.[11]

    Practically, these requirements minimize the legal implications of new reports of workplace harassment that occurred years or decades ago.

Practical Takeaways

    Companies can minimize the possibility that their valued employees will be victims of a hostile work environment, and the risk of being held liable for misconduct, by taking the following steps.

·       Maintain a clear anti-harassment policy: Companies may benefit by reviewing and, if necessary, updating policies to: (1) specify the types of behaviors that are prohibited; (2) specify that the prohibition covers harassment based on all legal statuses protected under federal and state law; (3) require employees to report harassment to management; (4) give employees multiple reporting options; and (5) give assurances that the company will not retaliate against employees for reporting harassment.

 ·       Train managers and ensure non-managers are well-aware of anti-harassment policies and reporting expectations: To ensure managers fully understand their role in identifying and reporting harassment and that all employees are aware of the company’s expectations and requirements for them, employers should consider re-assessing the content and frequency of training for all employees.    

 ·       Thoroughly investigate complaints of harassment: It is critical that companies thoroughly and consistently investigate complaints in a timely manner, document the investigation, and take prompt remedial action. Employers who choose to investigate complaints internally should ensure that personnel who conduct investigations are well-trained on best practices for investigations. In many cases, companies may benefit by engaging a neutral, third-party professional to conduct their investigations.

    These steps are designed to ensure companies communicate their prohibition of harassment, identify possible harassment when it occurs, and promptly investigate and put an end to harassment. Employers are encouraged to contact the attorneys at Campbell Litigation with questions, or for referrals to neutral third-party investigators.

[1] Monica Akhtar, #MeToo: a Movement or a Moment?, The Washington Post (Nov. 9, 2017), https://www.washingtonpost.com/news/the-intersect/wp/2017/11/09/metoo-a-movement-or-a-moment/?utm_term=.86486a8664e2.

[2] Sharon Jayson, USA Today, #MeToo Isn’t Just a Hashtag, It’s Actually Destigmatizing, and That’s Huge (Nov. 20, 2017, 5:13 p.m. ET), https://www.usatoday.com/story/news/nation/2017/11/20/metoo-isnt-just-hashtag-its-actually-destigmatizing-and-thats-huge/882716001.

[3] See Stinnett v. Safeway, Inc., 337 F.3d 1213, 1219 (10th Cir. 2003) (emphasis added) (internal quotation omitted).

[4] Morris v. City of Colorado Springs, 666 F.3d 654, 665 (10th Cir. 2012); Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993)

[5] Masse v. Holder, No. 11-cv-1144, 2012 WL 2502849, at *4 (D. Colo. Jun. 28, 2012) (“The scope of an employer’s liability for a sexual harassment claim by an employee depends on the relationship between the victim and the perpetrator”).

[6] Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013).

[7] Debord v. Mercy Health Sys. of Kansas, Inc., 737 F.3d 642, 650 (10th Cir. 2013).

[8] Vance, 133 S. Ct. at 2439.

[9] Vance, 133 S.Ct. at 2439; Kramer v. Wasatch Cty. Sheriff's Office, 743 F.3d 726, 745 (10th Cir. 2014).

[10] Denetclaw v. Thoutt Bros. Concrete Constrs., 287 F. App’x 17, 21 (10th Cir. 2008). Employees suing for harassment based on race under 42 U.S.C. § 1981 need not exhaust administrative remedies before filing a lawsuit. Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 460 (1975).

[11] Where a claimant claims that the harassment was part of a “continuing pattern of discrimination,” she or he must file a charge within 300 days of at least one incident of harassment that was part of the pattern of discrimination. See Allen v. Denver Pub. Sch. Bd., 928 F.2d 978, 984 (10th Cir. 1991).