How the #MeToo Ripple Effect has Transformed Sexual Harassment Cases

What Employers Need to Know

By Jill Reilly and Victoria Steinberg

The problem of sexual harassment is large and pervasive, leaving no industry untouched. An online survey released this year by the nonprofit Stop Street Harassment found that 81 percent of women surveyed had experienced some form of sexual harassment, with 38 percent of them experiencing sexual harassment in the workplace.

At the same time, the #MeToo movement is deeply shaping how employers respond to allegations of sexual harassment, and social media has changed the playing field. 

In this new environment, how can employers protect or defend themselves when these accusations are becoming increasingly public?  What is the role of public relations in that effort?

Employer Investigations in the #MeToo Era

Perhaps the biggest sea change to sexual harassment legal proceedings in the wake of the #MeToo movement is that employers are now much more likely to accept the accuser's allegations at face value, at least initially, and take steps to protect the accuser and place limitations on the employee accused of sexual harassment – even before conducting an investigation.  Previously, employers would often investigate and make findings before deciding whether to impose any limitations or disciplinary action on the accused employee.

In this environment, employers are so wary of seeming to disbelieve an accuser that they may be willing to take immediate action against an accused, even if that employee may take legal action based on limitations or discipline.  As a practical matter, at-will employees may have little or no recourse.  However, an employee under contract could assert a breach of contract claim, or potential claims could arise under labor laws or due process theories.  But these risks may be seen to pale in comparison to failing to respond adequately to an allegation that an employee has engaged in sexual harassment. 

Employers should consider whether their policies and procedures adequately address the handling of sexual harassment complaints.  Many employers find that there are not enough avenues for individuals to voice complaints, creating frustration with bureaucracy and perceived unresponsiveness, and impeding efficient problem-solving.  In addition, the fact that an employer may be strictly liable for sexual harassment of employees by their supervisor leads to significant issues regarding who conducts the investigation into a supervisor’s conduct and the scope of that investigation.  Having policies that permit (and in some circumstances encourage) your senior leadership team to hire outside counsel to conduct an independent review may be warranted, particularly if the accused is a high-level executive or if the allegations suggest a pattern rather than an isolated incident. 

In the current #MeToo environment, employers are also increasingly willing to broaden their investigations beyond an accuser's allegations of sexual misconduct and seek information from other sources – for example, seeking information about employee conduct from prior employers, social media, or other entities with which the person is affiliated.  Whether and when this broader scope is necessary – or even appropriate – is an issue sure to be litigated in the coming months and years.

From the individual’s perspective, an accusation of sexual harassment triggers consideration of whether there is potential civil or criminal liability, in addition to employment consequences.  Equally important is the need to promptly assess potential reputational harm, and its impact on other professional relationships, such as involvement on boards of directors or with academic or non-profit groups.

This cultural shift is surely making an impact on jurors and judges.  In the retrial of Bill Cosby, for example, the judge allowed testimony of prior bad acts, permitting five women to take the stand, alleging similar misconduct, something that he did not allow in the first trial.  One could argue that in addition to a shifting legal analysis, a key difference between the first trial and the second was simply the evolution of the #MeToo movement.  Cosby’s first trial ended with a hung jury in June 2017, but by the time the second jury reached its verdict in April 2018, the accusations against Harvey Weinstein and other very prominent men had been leading the news for months.

 If an individual or an employer suspects that an accusation of sexual harassment is coming, it is imperative to consult with an attorney as quickly as possible to minimize any fallout, preferably pre-disclosure and pre-publicity.  Getting an attorney involved at the earliest stages can significantly increase the likelihood of having some input into the scope and public nature of the investigation that ensues, avoiding liability altogether, and/or negotiating a reasonable settlement if necessary. 

Can a Public Relations Strategy Work?

The #MeToo era is also causing employers and individuals facing these claims to think about their legal strategy alongside a communications strategy. 

It is important to note that the use of social media can give accusers the edge over both their accused and the accused's employer, as many are taking the fight public, bypassing the filing of a formal complaint with the human resources department or hiring legal counsel, and sidestepping the legal process altogether in favor of the court of public opinion.  They post their grievance, and then, to quote the author Fredrik Backman, “the comment section does what the comment section always does: smells blood and catches fire.”

On the employer side, it is advisable to have a PR consultant on board before or immediately upon learning of an issue, to put in place an effective media plan in the event the allegations become public.  When a high-level executive is involved, or a pattern of sexual misconduct is alleged, this is particularly important.

When a specific allegation becomes public, employers or accused individuals and their legal counsel often work closely with communications consultants on an initial key question of strategy and tone: Limit public comment or vehemently fight back and counter the claims?  

Senior leaders should be educated on best practices in digital crisis management before something goes wrong.  Four steps to take right now to be prepared for a social media storm include:  

  • Review your policies: Have you talked about social media crisis response with senior leadership? How is each person expected to respond to complaints or conversations that veer off-topic, to the detriment of your company’s reputation? Do your policies need updating by legal counsel?
  • Assess your digital footprint: How do you share information? Do you use vignettes, videos and staff/customer photos to tell your story? Is it easy to find information and stories about quality initiatives and your good works?  Who has access to changing that digital footprint when messaging needs to go out?
  • Develop content guidelines: Do your current social outlets have the right tone to be helpful info hubs in a crisis? How do you review content to assure you aren’t the source of the crisis?
  • Consider “war-gaming:” Create mock social media situations gone awry. Understanding how you will handle them before they happen is the key to effectively minimizing reputational risk when the worst-case scenario occurs.

Once a crisis hits, consider these pillars of effective communications as your guide: timeliness, transparency, authenticity and accountability.   

Finally, if your company finds itself on the wrong end of a social media “firestorm”, be ready: know your most efficient outlets for outreach to ensure you are reaching your key audiences; drive traffic to your website; don’t get into individual social exchanges; and use video to get your message out there.

What's the Upshot?

The legal and social media landscapes surrounding sexual harassment complaints in the workplace have changed so dramatically that the old playbook for responding to complaints needs to be thrown out the window.  In its place, employers and accused individuals must prepare themselves to be ready to act at a moment's notice with legal and communications strategies that complement one another.  Good policies, able counsel, and a good PR strategy are three tools vital to navigating the new terrain. 

Please note that this article is informational only and is not intended to offer legal advice. 

 

Victoria L. Steinberg is a partner at Todd & Weld LLP, concentrating her practice on business litigation and representing employers and employees in a wide range of employment law matters, including workplace investigations and discrimination, harassment and retaliation issues.

Jill Reilly, a vice president at Denterlein, a strategic communications firm, regularly works with attorneys to complement the legal strategy and preserve credibility in the court of public opinion. She has counseled clients on a broad array of crisis events, serving as chief strategist for external and internal communications, and in many cases, as a spokesperson.