This installment of "HR Legal Briefing" is written by David W. Garland, a Member of the Firm and Chair of Epstein Becker Green’s National Employment, Labor & Workforce Management Steering Committee. Garland is frequently retained in matters involving clients’ most senior executives and in high-profile, high-stakes and highly sensitive cases. He can be reached at [email protected]. The views expressed here are the author's own.
As 2018 draws to a close, it's no exaggeration to say that the impact of the #MeToo movement in the workplace this year has been significant.
The U.S. Equal Employment Opportunity Commission (EEOC) has continued its focus on preventing harassment in the workplace and has filed numerous lawsuits against employers alleging harassment, about 50% more than in 2017. The number of sex harassment charges filed with the EEOC also increased by 14% in 2018. States and cities have enacted new laws, imposing mandatory anti-harassment training requirements, prohibiting confidentiality in settlements of sex harassment claims and requiring greater female representation on boards of directors.
Employers have reacted to these developments in many ways, including banning mandatory pre-dispute arbitration agreements covering claims of sex harassment and assault. As we head into 2019, what further consequences should employers expect from the #MeToo movement?
There can be little doubt that 2019 will bring the filing of more administrative charges and lawsuits making sex harassment claims. That's obvious from the reported numbers, but conversations with employment lawyers and human resources executives provide anecdotal evidence that more filed cases are forthcoming. At the same time, C-suite members have recognized the threats that these claims pose to employers' reputations and brands, and therefore additional resources likely will be devoted internally to creating healthy, inclusive and respectful workplaces and to training leaders and supervisors on appropriate workplace conduct. But beyond that, what can we anticipate?
Some answers to that question can be found in a McKinsey/LeanIn.Org report, Women in the Workplace 2018. Among the conclusions from its survey of 279 companies and more than 64,000 employees are the following:
- Women remain dramatically outnumbered in senior leadership;
- Women are left behind from early in their careers;
- Women receive less support from managers;
- Women get less access to senior leaders;
- Women are more likely to be victims of microagressions; and
- Sexual harassment remains prevalent.
The #MeToo movement is likely to act as a fuel for those who want to change these realities. Here, too, we've seen states and local jurisdictions enacting statutes forbidding salary history inquiries in the hiring process because those inquiries have been viewed as a way to carry depressed compensation for women from one employer to the next. Additionally, a number of states — among them California, New Jersey and Massachusetts — have either amended or enacted equal pay laws, with the intention of leveling the playing field. We are likely to see more of these laws in 2019.
We are also likely to see an increase in equal pay litigation. Just last month, for example, a class action lawsuit was filed in California against Hewlett Packard, alleging that it violated the California Equal Pay Act, amended in 2016 to expand the comparator standard from equal work to "substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions." According to the complaint, HP discriminated against female workers by paying them less than their male counterparts and funneling women into certain jobs based on stereotypes.
Similar lawsuits have been filed against other large employers, and there is every reason to expect more such litigation in 2019 — especially because the new equal pay laws provide compliance challenges and opportunities for claims to be made where they could not before. And it cannot be overlooked that some of these lawsuits may bring significant exposure to employers.
Thus, the impact of the #MeToo movement will continue to be felt strongly in 2019 and the C-suite must remain vigilant in addressing the issues raised by these developments.