By Jill Halper
Interestingly, although I have subtitled this article “Are YOU a #MeToo?”, a much more fitting and powerful subtitle would have been “Is it #Time’s Up For Your Employer?” I did not chose that subtitle, because I, like many, have always used the hashtag terms interchangeably and was not focused on any distinguishable meanings between the two phrases. Admittedly, even as an established employment attorney, I was not as up as I should have been on the subtle yet ever so important difference these two viral hashtags and relied solely on #MeToo in reference to my clients’ sexual harassment claims and experiences.
#Times Up Relates to Employment Only
However, as the number of incoming phone calls involving sexual harassment cases began to soar at my firm, it was time for me to dig deeper and contemplate the nuances in the social media phenomena. While I was well versed on the law, I needed to now be equally schooled in the sexual harassment social media vernacular and how I could use it to my clients’ best advantage. And that is when I learned that #MeToo is relevant to all victims and survivors of sexual harassment of any type, in any environment, while #Times Up is specifically meant to address sexual harassment IN THE WORKPLACE!
To further explain the difference between these two hashtags, #MeToo is a movement that deals generally with sexual violence and provides a platform and voice for ending sexual violence and for survivors of sexual violence. The #MeToo movement had been around for years before it started gaining national attention after allegations of sexual harassment by Hollywood producer Harvey Weinstein captured the headlines. The movement was created in order to encourage “millions to speak out about sexual violence and harassment”, according to the #MeToo website, and to promote healing and empowerment. To say it has been successful in this initiative, is an understatement. In contrast, #Time’s Up was founded on the premise that everyone, every human being, deserves a right to earn a living and to provide for themselves and their families, free of the impediments of harassment and sexual assault and discrimination at work. #Time’s Up is specifically focused on workplace issues involving fairness, safety and equity in the workplace. As such, #Time’s up was meant to indicate to an employer guilty of such behavior that their time is up and action will be taken. BINGO!
As a result of this simple, yet vital distinction between the underlying purposes of these two hashtags, imagine how powerful and compelling it would be to have an employer receive a formal letterhead communication from our firm with the phrase #TIMES UP _______(INSERT NAME OF EMPLOYER HERE) printed in bold large font at the top of a sexual harassment claims letter, on behalf of one of our clients. That is exactly what we do and needless to say, it is most effective.
What Is Sexual Harassment In the Workplace?
But let’s take a step back and first understand if you might have a sexual harassment case in the first place. In order to get a better grasp on that, here is your sexual harassment made simple tutorial. Harassment in the workplace is a form of employment discrimination that violates Title VII of the Civil Rights Act of 1964 and the laws in many states, including, Connecticut and New York. According to The US Equal Employment Opportunity Commission (EEOC), it is unlawful to harass a person because of that person’s sex. The law defines sexual harassment as unwelcome verbal, visual, non-verbal or physical conduct of a sexual nature or based on someone’s sex, that it is severe or pervasive, creating a hostile working environment or affecting working conditions. This definition covers a wide range of unwanted comments and behaviors directed towards the victim, but the acts will usually be of a sexually charged tenor, including unwelcome sexual advances, requests for sexual favors, and other verbal comments or physical harassment of a sexual nature. In a workplace context, the victim may not only be an employee, but also an applicant. In addition, both victim and the harasser may be either a woman or a man, and the victim and harasser may even be the same sex. Lastly, the harasser may be a manager, supervisor or person in power, a colleague or co-worker, or even a vendor. In any of those scenarios, the employer may be found liable if they caused the behavior, knew about the behavior and did not take steps to correct and stop it, or if they should have known through the exercise of reasonable care. Lastly, employers should have strong written policies in place against sexual harassment and clear procedures set forth for reporting and addressing sexual harassment. In fact, in some states, including Connecticut, employers of a certain size, are required to provide sexual harassment training for supervisors.
Despite these general guidelines and laws, sexual harassment can take many forms and courts have interpreted what constitutes sexual harassment on a case by case basis. As such, if you feel or believe that you have been a victim of any behavior in the workplace, by anyone in the workplace, that may be sexual harassment, we encourage you to seek counsel immediately as there are statutory deadlines within which claims must be filed. We will listen to and analyze your fact pattern, in order to determine whether you might have sound legal grounds for a sexual harassment claim. It is too often the case where if something feels wrong, it is wrong, and we urge you to speak up and make this right for yourself and others.
Start Your Own Investigation: Documents and a Written Narrative
Along with seeking immediate counsel, we also instruct you to maintain a narrative of everything that takes place, including dates, times and witnesses, and to also maintain copies of all written and verbal communications between you and the harasser/employer. In addition, it is crucial to report the harassment to your employer’s Human Resources department as well as to your direct boss or supervisor.
Increased Number of Sexual Harassment Claims Filed
It is no surprise that with the #MeToo and #Time’s Up movement, the amount of sexual harassment cases has greatly increased in the past year. The data in Connecticut mirrors national trends. The EEOC’s 2018 sexual harassment data shows more than a 50% increase in suits challenging sexual harassment over 2017. Charges filed with the EEOC alleging sexual harassment increased by more than 12% over the same time period. Anecdotal information regarding the number of sexual harassment complaints filed with the Connecticut Human Right’s Office (CHRO) in the current year suggests an even more dramatic rise in the number of these claims in the first half of 2019. No doubt, the increase in sexual harassment claims and complaints based on sex discrimination coincides with the explosion of media headlines and high profile sexual harassment cases which sparked the #MeToo movement.
The simple fact is that sexual harassment is against the law and should not to be tolerated anywhere, but particularly in the workplace where employees should have the right to do their jobs and earn their livings free from abuse, discrimination, and mistreatment. Just because Connecticut does not generate the type of celebrity fueled headlines seen in other large cities, does not mean we do not have our share of victims, and in fact the data above shows that we do.
If you believe you are the victim of sexual harassment, it might be time to have us put your employer on notice that their TIME IS UP and seek to help you recover monetary damages relative to your legal claims for sexual harassment and discrimination. Feel free to contact us at the number below, if you believe you have been subject to sexual harassment situation at work, or for any of your workplace needs.
If public shaming is the new normal for dealing with sexual harassers, then how do we fix the ineffective sexual harassment laws currently in place? I have the quick fix and it makes perfect sense.
Make Sexual Harassers Personally Liable
Currently, when sexual harassers do their evil deeds, there is no penalty. Under federal law, only employers are liable. In a few states, offenders are held personally liable, for example, Massachusetts and Ohio. If the harasser understands that placing his hand on a woman’s breast or other body part has a $150,000 price tag for the single act, the harasser will think twice. If the harasser also understands that they could lose their job in addition to paying a huge settlement to the victim, then they would avoid groping other employees.
Remove the Caps on Damages Under Federal Law
Under federal law, damages for sexual harassment offenses are capped at $300,000 for both back pay and punitive damages. Trust me, this compromise struck between Congressional Democrats and Republicans in enacting the 1991 Civil Rights Act was far too low to make any real difference to deter sexual harassment. We need to remove the cap on damages that were promoted by the Washington D.C. K Street lobbyists whom promoted the caps in the first place.
Make All Settlements of Sexual Assault and Sexual Harassment Public But Conceal Victim Identities
I recently wrote about making sexual harassment settlements transparent. Transparency of all sexual harassment settlements will deter both the employers and employees from engaging in unwanted sexual harassment. We would hope that companies do more to take care of the very employees who promote the employer’s products and services; the same employees who have close professional relationships with their customers and vendors. While transparency will add further deterrence, we also need to conceal the identities of the victims of sexual harassment in settlement agreements. There is no need to harm these victims any further.
All Perpetrators of Sexual Assault and Sexual Harassment Will be Listed on the National Sex Offenders Registry
If the price tag for an occasional groping did not stop bad behavior, the next solution will. Currently, we have a nationwide sex offender registry. If you are convicted of criminal or civil sexual assault, you are automatically registered on the sex offender registry. We now need to modify current state and federal laws regarding sexual harassment at work and place all perpetrators of sexual assault and harassment on that list.
Provide a Tax Deduction to Victims of Sexual Assault and Sexual Harassment for Pursuing Claims of Discrimination
Prior to the 2018 tax overhaul, victims of sexual harassment could claim a tax deduction for legal fees and expenses in pursuit of sexual harassment claims. The tax act removed that benefit from both employers and employees. I propose reinstating the tax benefit only to employees who are the victims of sexual harassment. Frankly, it is morally the correct thing to do. We should not be cutting victims off at the knees.
If you have questions or would like to speak about an issue you’ve encountered in the workplace, we help clients located in New York, Manhattan, Connecticut, and nationwide. Contact us today!
If a woman makes a sexual harassment complaint to her employer, should the claim and the resulting settlement be confidential? The short answer is “no.”
INTERNAL SEXUAL HARASMENT INVESTIGATIONS SHOULD BE TRANSPARENT
When an employee files an internal complaint of sex discrimination or sexual harassment, the company immediately begins an internal investigation. However, the complaining employee will never know the result of the internal investigation and she lacks any legal rights to demand a written or verbal finding. Employers are mandated to conduct the investigation under federal law, if the employer wants the protection of an affirmative defense that it took action to remediate the underlying cause of the sexual harassment complaint. You would think an “investigation” would have some curative effect, but it does not.
The corporate investigation should be open for all to see how terrible a male co-worker or supervisor actually behaved toward his female counterpart. We cannot bury our heads under the cover of confidentiality of corporate investigations, just because the legal department said so. The only reason why companies keep corporate investigations confidential is because the company is seeking to build a case to protect itself against the complaining employee; there is no value to the employee whatsoever.
THE SETTLEMENT AGREEMENT SHOULD ALSO BE TRANSPARENT
Employers love confidentiality provisions in settlement agreements. They and their counsel claim the company is buying confidentiality in exchange for the settlement payment. In reality, the company is buying the release of legal claims. Confidentiality provisions have long been a staple of settlement agreements, in particular in employment discrimination cases, because employers demand them. Employees who complained of sexual harassment did not demand confidentiality. Employees want public disclosure in order to signal to other employees to watch out for the alleged perpetrator so he does not repeat the offense on others. In addition, public shaming of individuals who commit sexual harassment offenses is now the norm.
Today, Congress has taken one step closer to making confidentiality provisions illegal. The new Tax Cuts and Jobs Act seeks to restrain corporate tax deductions for legal fees and settlements related to sexual harassment claims. In essence, if a corporation wants a tax deduction it has to make the settlement of sexual harassment cases public and not confidential. If the company seeks the confidentiality clause in the settlement agreement, they are prohibited from taking the deduction.
See a similar discussion on the same topic at #metoo Sexual Harassment Laws Are Broken.
If you have employment law questions or need help with specific workplace issues, contact Carey & Associates, P.C. Our employment lawyers can consult with you regarding your issue and offer guidance on next steps.
The momentum for the #metoo movement came out of nowhere. Someone had the courage to speak out to the detriment of their own reputation. But why only now? All the stories evolving out of the #metoo movement came years after the incidents occurred. Many of these employees had full access to state and federal laws to complain about sexual harassment, yet presumably many did not pursue their claims out of fear (the “silence keepers”). Our sexual harassment laws are broken and as far as I can see, these laws will remain broken for years to come. It now appears that public shaming is the only effective way to stop sexual harassment.
1. Women Fear Making Complaints
Women fear making sexual harassment complaints because they anticipate termination and ruined careers. The fear is real and there are no statutes that address this issue and encourage employees to come forward. Every client I have represented who maintained a sexual harassment claim experienced fear of retribution by their employers if they complained. Each client was verbally intimidated by their perpetrators and employers immediately after their internal/external complaints were filed. These clients immediately found themselves the focus of an unfounded performance improvement plan or similar negative reaction. The employer made the work life so difficult, these employees were fired or quit because the psychological office pressure proved too much to endure. Sure, there are state and federal anti-retaliation statutes designed to deter employer retaliation, but employees have to sue in court to enforce this type of claim. The current system is stacked in favor of employers and nothing is being done to change this inequality. Not even the U.S. Equal Employment Opportunity Commission is capable of correcting this problem.
Sexual harassment statutes are ineffective, outdated and need to be overhauled, as less than 1% of complaints filed in court win at trial compared to with an Employer success rate of 14%! (EEOC and court statistics). The remaining 85% of the other cases were resolved via settlement. However, no database exists to determine the actual results of the 85% of cases that settled, i.e. the of amount of corporate hush money paid to the victims of sexual harassment.
2. Economic Incentives Are Part of the Problem
Prior to January 1, 2018, employers could write off litigation and settlement expenses related to employee sexual harassment claims. Corporations received a corporate tax deduction for expenses related to sexual harassment claims brought against the company. Obviously, this corporate tax deduction has not deterred bad behavior. Ironically, the total number of sexual harassment complaints filed with the EEOC each year since 2010 has decreased (FY 2010 [7,944] – 2016 ). I believe this decrease demonstrates that employees who have experienced sexual harassment have given up any hope they will be treated fairly and they have decided to remain quiet instead of rocking the boat. The above decrease has nothing to do with the effectiveness of sexual harassment training, as NPR reported on November 8, 2017, “[t]he primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.”
In a partial reaction to the #metoo movement pressure, Congress enacted the Tax Cuts and Jobs Act which eliminates any tax deduction corporations may take for “payments related to sexual harassment and sexual abuse- No deduction shall be allowed under this chapter for- any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement; or attorney’s fees related to such a settlement or payment.” The expected result of this provision is two-fold. Employers cannot take a tax deduction for legal fees, expenses and settlement payments if they use a confidentiality provision in a settlement agreement. Congress’ intent was clear, make all sexual harassment settlements public and not shield them behind secret agreements. The tax reform partially removed the economic incentive as employers may choose not to take the tax deduction in favor of confidentiality and concealing sexual misconduct at work. Corporate reputation is the paramount concern for employers and will outweigh the economic value of the deduction.
3. Tax Reform Law Eliminated Employee Tax Deduction for Legal Fees
However, there was a unique intended consequence of the above provision in the Tax Cuts and Jobs Act. Prior to January 1, 2018, employees could take a deduction against gross income for attorney’s fees spent pursuing sexual harassment claims. Today, the Tax Cuts and Jobs Act eliminated this valuable deduction for employees who pursue sexual harassment claims, a financial disincentive. This may have been an unintended consequence of the new tax law, but nonetheless an adverse consequence to employees experiencing sexual harassment on the job. In my opinion, this economic disincentive will decrease the number of claims filed against companies. The Act punishes victims of sexual harassment.
If you have employment law questions or need help with specific workplace issues, contact Carey & Associates, P.C. Our employment lawyers can consult with you regarding your issue and offer guidance on the next steps.