Anti-Harassment Practices in the Age of #MeToo

Scott Brutocao outlines anti-harassment practices for both employers and workers in the age of #MeToo. Click here to read the full article.

Anti-Harassment Practices in the Age of #MeToo

How is our goal to avoid workplace harassment affected by the #MeToo movement?

The New York Times ran a prominent article in their Sunday newspaper last week, and the theme was that in the age of #MeToo, men are starting to question whether they have been sensitive enough to harassment issues in the workplace.

That is good.

But the article goes on to say that many men are confused about the line between appropriate and harassing behavior, and some have decided to adopt the “Mike Pence rule” – avoid private interactions with women where you are vulnerable to false allegations of harassment.  Others simply don’t know where to turn in answering questions whether a particular behavior would constitute harassment or not.

That is bad.

First, let’s talk about the so-called “Mike Pence rule” – it is flawed in several respects.  Most fundamentally, it by definition discriminates against women by treating them differently than men.  Such a practice may or may not be legally actionable, but over time, a rule that grants access to men and excludes women is only going to add to a woman’s discrimination claim that she was denied the same employment opportunities as men.

Additionally, the workplace is not a binary environment in which harassment is confined to men against women.  Men can harass men, and transgender workers defy workplace stereotypes in many ways, harassment being among them.  The “Mike Pence rule” is clearly not the answer.

So what to do for people who are questioning all behaviors in light of #MeToo?

My view:  this is an opportunity for employers, not a crisis.  We are not witnessing a sea-change in harassment law – the national discussion is just giving us an opportunity to educate our workforce about effective anti-harassment measures.

So let’s review the fundamentals:  first and foremost, sexual harassment must be unwelcome.  And the behavior must be subjectively and objectively offensive.  “Subjective” is measured from the perspective of the alleged victim – the victim must actually perceive it as offensive.  “Objective” is measured from the viewpoint of the “reasonable person” – would a reasonable person be offended by the behavior?  Finally, the conduct must be “severe and pervasive” to be legally actionable – it cannot be sporadic, isolated, or trivial, although the more serious the behavior, the less “pervasive” it need be.

What Should a Worker Do?

Some conduct is obviously unwelcome and offensive, but it is true that there is a lot of conduct that hovers near the line.  What is an unwitting worker to do?

• First, there is no substitute for common sense – put yourself in the shoes of the recipient of your conduct – could this be offensive or unwelcome? If so, stop it, or refrain from the action in the first place.  It’s not worth it.
• Second, for conduct near the line, there is nothing wrong with asking the question – “are you okay with me talking about this?” “Does this bother you?”  “Should I stop talking about this?”  After all, if the conduct is unwelcome, the victim is certainly well served by telling the actor that the behavior is unwelcome.
• Third, there is also nothing wrong with attempting to “get a ruling” – talk to HR and tell HR about it. By doing so, you get the conduct out in the open, and you are on record as being sensitive to these issues.
• Fourth, attend anti-harassment and sensitivity training – ask questions, role play, do whatever you need to do to become sensitized to the issues and confident in your ability to act “within the rules.”

What Should the Company Do?

• If you’re not doing anti-harassment training, do it. For many, it’s common sense, but for a large percentage of the workplace, it’s not.  And regardless of whether it actually influences behaviors (and as set forth below, good training will), it is at least a tangible step toward eliminating harassment in the workplace, which benefits you when the EEOC comes knocking or you are defending yourself in a harassment lawsuit.
• If you’re doing general anti-harassment training but not specific training for managers, add a dedicated training for managers. Managers stand in a unique position for a company, often binding the company with their actions – or inaction – and stand in a unique position to influence positive behavior in others.
• If you already do anti-harassment training, review the return you’re getting. The EEOC issued a report last year in which it concluded that workplace harassment is a problem and that not all harassment programs are effective.  Anti-harassment training takes many forms, and not all are created equal.  If you have a 30-minute video that employees need to review to “check the box” on the new hire checklist, you may not be influencing many behaviors there.
• Consider live training with both managers and non-managers, with a qualified instructor who is comfortable answering questions. For manager training, review hypothetical cases, make the training interactive, and recount real-life situations where employees have complained and managers either made the right or wrong decision, and the consequences that resulted.
• Most importantly, keep the door open to inquiries – make sure all workers are welcome to come to management or Human Resources to ask about whether a particular behavior is appropriate for the workplace. Further, managers should be instructed that there is no shame in escalating a good question to HR or upper management – no one is expected to know everything, especially in something as fact-specific as workplace harassment.

Scott Brutocao is a partner in the Austin employment law firm of Cornell, Smith, Mierl & Brutocao, LLP, where he specializes in representing employers.  He provides litigation defense, advice, drafting, and training, and is licensed to practice in both Texas and California.