With EEOC's involvement, more sex harassment suits are likely
The #MeToo movement may be several months old, writes David W. Garland of Epstein Becker Green, but now is not the time to take your eye off the ball.
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]
For months, there has been a flurry of news stories growing out of the #MeToo movement, some of which we’ve written about in this column. But there had not been a noticeable spike in the filing of sex harassment lawsuits. Now, however, the U.S. Equal Employment Opportunity Commission (EEOC) has unleashed of a series of sex harassment lawsuits across the country — and additional litigation may therefore follow.
Last month, the agency filed seven lawsuits against different employers from Birmingham, Alabama, to San Diego, alleging that each of them had allowed harassment in their workplaces. In a press release announcing the filings, EEOC stated that its action "should reinforce to employers that harassment — on all bases — is a violation of federal law."
"There are many consequences that flow from harassment not being addressed in our nation’s workplaces," EEOC acting chair Victoria A. Lipnic added, and the lawsuits filed by the EEOC "are a reminder that a federal enforcement action by the EEOC is potentially one of those consequences."
Virtually all of the lawsuits contained similar allegations. Male supervisors engaged in verbal harassment of female subordinates, using sexually charged language. In some, the EEOC alleged, the male managers called their female employees "sluts," "whores," and "cows." There was inappropriate touching and aggression. When female employees complained, the companies allegedly failed to take appropriate action, either to investigate or to otherwise address the alleged hostile environment.
In each and every case, the EEOC issued a press release announcing the lawsuit’s filing. Each one carried the same message, essentially verbatim, that the EEOC had recently reconvened its Select Task Force on the Study of Harassment in the Workplace, which was formed "to explore ways to combat this national menace." Each press release added that "[p]reventing workplace harassment through systemic litigation and investigation is … one of the … national priorities identified by the [EEOC's] Strategic Enforcement Plan."
While it remains to be seen whether the allegations made by the EEOC in the various lawsuits turn out to be true (the filing of the complaints does not mean that each and every allegation has merit), several truths can be drawn from these recent actions. We are now entering a period where there is likely to be a spike in sex harassment lawsuits — not only from EEOC but also from private litigants as well. The media attention on sex harassment issues had heretofore led to internal complaints and demand letters. Now, with the passage of time and the light shined on these issues by EEOC, more lawsuits are likely.
That leads to another truth: Employers will be confronted with the decision whether to fight or settle. In some of those situations, employers will have to decide whether to settle meritless claims to avoid unwanted publicity and potential reputational damage. In today's environment, even a meritless allegation has the potential to do damage that warrants settlement over litigation. Compounding the challenge facing employers, state legislatures are now enacting bans on the use of confidentiality or non-disclosure agreements where sex harassment claims have been made; New York State's legislation, for example, goes into effect this month. How all this plays out remains to be seen.
But another truth should not be surprising: Employers, perhaps more than ever, need to be paying attention to these issues at all levels of the company, from the C-suite to the employee working remotely. That means more effective training (and state legislatures are enacting mandates here as well) and placing a high priority on creating a work environment that is less susceptible to complaints of harassment, including now from the EEOC.