How #MeToo is Changing the Office Kelsey J. Knowles The Beginning of a Movement What is #MeToo?  The MeToo movement was founded by Tarana Burke in 2006 to help survivors of sexual violence find pathways to healing. MeToo  Actress Alyssa Milano began using #MeToo in response to the highly publicized Weinstein becomes scandal on October 15, 2017, in a viral tweet: #MeToo “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”  #MeToo was retweeted 23 million times from 85 countries by November 2017.  Catharine A. MacKinnon, a legal scholar who first argued that sexual harassment was a legal claim, #MeToo did  Notes #MeToo did what the law could not. what the law  It eroded one of the biggest barriers to prosecuting sexual harassment, which was the could not disbelief and trivializing dehumanization of victims.  “Women have been saying these things forever. It is the response to them that has changed.”  Psychologists describe some of the reasons women do not come forward to report sexual harassment or sexual assault:  Shame. Abuse, by its very nature, is humiliating and dehumanizing.  Denial and Minimization. To get through the experience, Why don’t victims try to downplay how much they have been harmed.  Fear of Consequences. Losing one’s job or not being believed. Women  Low Self-Esteem. Always Come  Feelings of Hopelessness and Helplessness. Most victims feel as if they are on their own when it comes to protecting Forward? themselves from sexual harassment.  A History of Being Sexually Violated.  Lack of Information. Many victims are uneducated about what exactly constitutes sexual harassment.  Disbelief, Dissociated, or Drugged.  The #MeToo movement is seen by many as a way to acknowledge and eradicate a system that largely protected abusers and prevented the victims from coming forward.  On a high level this included:  Payoffs to victims in exchange for silence Causes of  Inept investigations, responses, management, human- #MeToo resource departments  Complicit bystanders – both men and women  In a situation of workplace harassment, people often do not support others out of fear of losing their own job.  For a long time, our culture just did not accept that a woman coming forward to accuse a man could be telling the truth.  Over 400 executives and high-profile employees have been exposed by the #MeToo movement.  Accusations have surfaced against a long list of publicly known names, including:  Harvey Weinstein, Bill O’Reilly, Russell Simmons, James Levine, Gordon Edelstein, Mario Batali, Ken Friedman, Mario Testino, Donald Trump, Louis C.K., Morgan Freeman, Dustin Hoffman, Jeremy Piven, Johnny Iuzzini, R. Kelly, Al Franken, Tom Brokaw, Accusations James Franco, Dave Copperfield, Michael Douglas, Aziz Ansari, George H.W. Bush, Danny Masterson, Bruce Weber, Israel Horovitz, Matt Lauer, Garrison Keillor, Cristina Garcia, Richard Branson, John after #MeToo Conyers, Andrew Kreisberg, Geraldo Rivera, Matthew Weiner, Mark Schwahn, Roy Moore, Jeffrey Tambor, Ed Westwick, Brett Ratner, Andy Dick, Kevin Spacey, Mark Halperin, Knight Landesman, Steven Seagal, Terry Richardson, Asia Argento, James Toback, John Besh, Ben Affleck, Oliver Stone, Nelly, Stan Lee, Ryan Seacrest, Sean Hannity, Eric Schneiderman, Blake Farenthold, Corey Lewandowski, Andrea Ramsey, Tony Mendoza, Eric Schneiderman, Larry Nassar, Andy Savage, Seal, Robert Scoble, Andrew Kreisberg, Nick Carter ...  Research before the #MeToo movement by the Centre for Talent Innovation showed around 64% of senior men avoid solo interactions with junior women because they Concerns Over fear rumors about their motives. #MeToo  A survey done by the Lean In Initiative found the number of male managers who are uncomfortable mentoring women has tripled since the start of the #MeToo movement.  Others pointed out the movement’s act of bringing these issues to the forefront, which can foster a meaningful dialogue to address these concerns and to change the culture Concerns Over surrounding them.  If young women presume male colleagues #MeToo who take an interest in their work actually have an ulterior motive, or if male bosses wanting to give opportunities to female subordinates avoid doing so out of a concern for the appearance, everyone loses. #MeToo at Work Sexual Harassment in the Workplace  Sexual harassment is unwelcome, offensive conduct based on sex that becomes a condition of continued employment or that is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, offensive, or abusive. What is sexual  Such conduct may include: • Offensive jokes or stories • Whistling or other harassment? • Slurs suggestive sounds • Name-calling • Interference with work • Physical assaults or threats performance • Intimidation • Repeatedly asking for • Ridicule or mockery dates • Insults or put-downs • Gifts or other items of a • Offensive objects or sexual or personal nature pictures • Leering at someone  Harassers can be  The employee's supervisor  Another supervisor  A coworker What is sexual  A third party (vendor, agent, contractor) harassment?  A customer  Workplace sexual harassment is prohibited under Title VII of the Civil Rights Act of 1964 and the Iowa Civil Rights Act.  The U.S. Equal Employment Opportunity Commission (EEOC) has estimated that 75% of all workplace Workplace harassment incidents go unreported. Harassment  In a 2003 study, the EEOC reported that 75% of employees who spoke out against workplace mistreatment faced retaliation in some form.  Sexual harassment damages economic opportunity.  Power dynamics play a role in determining a worker’s trajectory and paycheck.  Victims are punished for refusing advances, and dissuaded from reporting them, in numerous ways: Workplace  A promotion that does not materialize Harassment  A reassigned shift  Opportunities for advantageous overtime are denied  A poor performance review  A transfer to a less desirable position  Verbal or physical abuse  Spreading false rumors  Making the person’s work life more difficult  #MeToo also targets pay differences between men and women.  Federal and state law require equal pay for equal work.  Many state and local laws prohibit employers from asking Pay Gap questions about a job candidate’s prior pay during recruitment.  Pay equity can be a “strict liability” issue. You can be liable even if you did not have discriminatory intent. CASE STUDIES Hollywood, News, Manufacturing Sexual Harassment in Entertainment: Lupita Nyong’o  Take Aways  A first incident, even if extreme, does not always result in a Sexual report.  Harassment is not always a bright-line (although sometimes Harassment in it is!), but the conduct is typically inappropriate.  Harassers can make their subjects feel that their discomfort Entertainment: was unnecessary or unreasonable. Lupita Nyong’o  There is not always a logical place to go and complain about the harassment.  Powerful harassers truly are powerful. Sexual Harassment in News: Gretchen Carlson  Take Aways  Ms. Carlson’s allegations resulted in Mr. Ailes’ resignation Sexual and a $20 million settlement.  Like the Weinstein situation, Mr. Ailes was powerful and Harassment in could make or break someone’s career.  Even where there is an organization, with high-profile News: harassers, women may not come forward for (sometimes Gretchen legitimate) fear of retaliation.  Company culture matters in creating a culture where sexual Carlson harassment is accepted or fostered or one where it is not.  Confidentiality agreements should be used wisely and should not be used to ignore systemic problems. Sexual Harassment in Manufacturing: Ford  Take Aways  Harassment is not an easy problem to fix.  The Ford women work for a multinational corporation that has a professional human resources operation. Sexual  The Ford women are members of one of the most powerful unions in the country. Harassment in  A federal agency and a federal judge sided with the Ford women. Manufacturing:  Ford’s factory floors were monitored by independent monitors Ford for several years.  Retaliation and the fear of retaliation are real, and they keep women from reporting harassment.  There are legitimate reasons victims of harassment may not initially report the conduct. Changes After #MeToo Workplace Response to #MeToo “The young women today have a different attitude. They are much less willing to put up with things. Back then you said, ‘I don’t have anywhere to go with this and that’s just the way guys are,’ but now things are different. Now people will finally listen to these stories After #MeToo instead of dismissing them. Now we talk because now the culture is listening to us.”  - Karen Bruckner, an artist who accused architect Richard Meier of sexually assaulting her. Changes in the law New laws, proposed laws, and enforcement changes following #MeToo  The federal Tax Cuts and Jobs Act added a new section, Section 162(q), to the Internal Revenue Code to discourage utilizing nondisclosure agreement: “No deduction shall be allowed under this chapter for - (1) any settlement or Confidentiality payment related to sexual harassment or Agreements sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such a settlement or payment.”  States have also started passing laws addressing this issue. For example, in New York, you cannot have confidentially agreements that “would prevent the disclosure of the underlying facts and circumstances to the claim or action” in sexual harassment cases unless the complaining party prefers that circumstances and facts underlying Confidentiality the claim remain confidential. Agreements  The complaining party must have 21 days to consider such a provision and 7 days to revoke the agreement, and the agreement is not valid until after the 7 days expire.  If you have such an agreement, you should include language explicitly stating that it is the complaining party’s preference.  June 5 and July 18: The EMPOWER Act was introduced in the Senate and House respectively, which would:  Ban employment contracts from having nondisclosure and nondisparagement clauses covering harassment;  Require public companies to disclose workforce harassment settlements, judgments, and aggregate settlement amounts in Introduced Securities and Exchange Commission filings; Legislation  Require the EEOC to develop anti-harassment training materials;  Establish a confidential tip line for reporting to the EEOC; and  Prohibit companies from claiming tax deductions for legal fees connected with litigation related to workplace harassment. The provision would add to the recent Republican tax law that bans companies from writing off settlements related to sexual harassment complaints. Training after #MeToo  Involve company leaders in the training by having them attend and endorse it. Employees take more away from the experience, it can encourage those who are harassed to report the incidents and can stem the fear of retaliation. Workplace  Anti-harassment trainings need to be part of a holistic, Training company-wide strategy.  Increasing bystander-intervention training.  Encourage civility.  Train seriously and often. If training is important, it needs to be treated as such.  Studies found that people who attend trainings that “empower” the bystander benefit more than standard training:  Soldiers who received the training were significantly more likely than those who did not to report taking action when they saw assault or harassment. Sexual  College students’ attitudes regarding sexual violence and an individual’s ability to stop it changed measurably after bystander Harassment training. Training –  This training focuses on options for the person who witnesses the Focusing on harassment other than confronting the harasser.  It provides tools for the majority of employees (not harassers and Bystanders not subjects of harassment).  As one trainer explained “Bystander intervention is not about putting on your cape and saving the day. It is about having a conversation with a friend about the way they talk to women.”

 Take the focus off what not to do and turn to how people should behave at work.  Examples include praising someone’s work, Sexual refraining from interrupting, avoiding Harassment multitasking during conversations, and spotlighting contributions - “Mary just raised Training – the same idea, would Mary like to expand on Encouraging it?” Civility  This should not be limited to annual (or less frequent) sexual harassment training, but should be part of your regular workplace conversation with managers and teams. Company culture Preventing and remedying sexual harassment  Your best defense against sexual harassment is that it never happens. Preventing  Your second best defense is that it is brought to your attention Future Sexual right away so you can address it and fix it. These defenses require a culture that Harassment discourages harassment and encourages reporting it if it happens.  Management establishes company culture.  If managers are allowed to get away with something, it is presumed the company endorses the behavior and complaints will go unheeded. Preventing  Make clear that it is okay to go “over your boss’s head” and complain. Future Sexual  Practice what you preach. Harassment  Address all bad behavior, even if it is not technically illegal.  Never allow a “that’s just Bob” situation.  Solicit feedback and act on it.  Reward good behavior.  Implement a comprehensive and effective harassment policy.  Evaluate and learn from how the company has handled sexual harassment, misconduct, and assault allegations in the past. Preventing Review and investigate old misconduct in an objective fashion Future Sexual when necessary.  Conduct proactive compliance reviews and audits. Harassment  Watch for wage disparity.  Analyze internal disciplinary procedures to see where positive changes can be implemented.  Examine whether there are gender barriers in your workplace:  Are there pay equity issues?  Do men mentor and sponsor women?  Do women mentor and sponsor men? Workplace  Are men and women comfortable working together? Culture  Look at your travel and entertainment policies.  Do they encourage uncomfortable situations?  Do they promote (or even require) social drinking?  Are employees behaving professionally even when they are on the road, in hotels, entertaining clients, etc.?  Remember that culture comes from the top. Policies and Investigations  The policy needs to be plainly communicated to employees and easily accessible.  The language needs to be understandable.  Employees should sign a written Harassment acknowledgment that they have the policy. Policies  Ensure your employees know that the statement reflects your real beliefs.  Hold regular trainings on the policy and the company’s anti-harassment attitude.  Be careful about “zero-tolerance” policies.  A zero-tolerance policy that results in first-time offenders being fired for arguably minor transgressions could create legal issues for employers.  Companies could face claims of discrimination if the zero-tolerance policy is not applied evenly across the board.  A zero-tolerance policy could also cause workers to avoid anyone Harassment who they think will misinterpret their words or people around whom they may inadvertently make a mistake. A member of the EEOC Policies – Zero anti-harassment force mentioned that avoidance is just another Tolerance word for discrimination.  In a June 2016 study of harassment in the workplace, the EEOC anti-harassment task force cautioned employers about using the phrase “zero-tolerance anti-harassment policy” because it could be both “misleading and potentially counterproductive.”  The EEOC recommended punishments that are “proportionate to the offensiveness of the conduct.”  An effective investigation:  Is done in a timely manner.  Documents the conduct.  Interviews all key witnesses (or enough to reach solid conclusions).  Maintains critical evidence (video, photographs, audio files).  Makes FACTUAL findings but not legal conclusions. Investigations  Keep in mind that investigative reports are generally not confidential documents unless privileged.  Investigators may be called to testify, in which case:  The investigator needs to be credible (unbiased)  The investigator should have the ability to skillfully and honestly answer questions about their investigative methodology and findings.  When to use outside counsel for an investigation:  When you may want to keep the investigation and its outcome privileged;  When it is of a high-level employee (i.e., CEO, CFO, COO, General Counsel, HR Director) and an internal investigator may be uncomfortable investigating their peer or superior;  When your typical investigator may otherwise be Investigations compromised (for example, HR is not accused but members of HR team are potential witnesses);  When the investigation requires specialized knowledge (i.e., financial audit, legal compliance, etc.); and/or  When the complaint comes through a system designed to go around management (i.e., an audit committee). Thank you!