Employment Law Update: The Weinstein Edition

By Mike O’Brien  bio

Harvey Weinstein all over our news feeds

Your news feed, like mine, has exploded with references to someone named Harvey Weinstein for the past few weeks. What’s up? Weinstein is a well-known American film producer and former film studio executive. He and his brother co-founded Miramax, which produced several popular independent films. Several women who have worked with/for Weinstein have accused him of various forms of sexual misconduct, ranging from rape to requests for sexual favors to inappropriate comments. Many of the allegations involve workplace-related behaviors and, because of his success, wealth, and power in the entertainment industry, many felt obligated to comply with or at least not complain about his alleged misbehaviors.

The recent news is reminiscent of other past high profile discussions of the same general topic…Donald Trump grabbing you-know-what, Bill Clinton not having sex with “that woman,” the dangers of accepting mixed drinks from Bill Cosby, and the whole Clarence Thomas/Anita Hill Supreme Court confirmation battle of the 1990s.

[freereport]

Now, as in the past, the headline news is providing another teaching moment when employers can talk to employees about inappropriate behavior and harassment on the job. Maybe you should seize this opportunity to have this important discussion with your employees? Why? Keep reading.

The hashtags #metoo and #Ihave

These hashtags also are appearing all over my news feeds. The #metoo hashtags are a collection of very disturbing stories from women who say they have suffered sexual harassment at work or various forms of sexual predation. The #Ihave hashtags are some stories from men admitting to sexual misbehavior and apologizing for it. There even are #metoo stories from male victims. Accordingly, this is an issue that likely is on the minds (and on the social media) of your employees right now. Your employees are talking about these very issues right now. There may never be a better time for you to talk with them too. You have their attention.

What the law says

We should all know this by now, right? Federal and Utah state law prohibit discrimination and harassment based on race, color, religion, age (40 and over), sex, gender, sexual orientation, gender identity, pregnancy, disability, national origin, ethnic background, genetic information (including of a family member), military service, and/or citizenship. Harassment is unwelcome or unsolicited verbal, physical or sexual conduct which interferes with an employee’s job performance or which creates an intimidating, hostile work environment. Examples of possible harassment include:

• questions or comments that unnecessarily infringe on personal privacy, or offensive, sexist, off-color or sexual remarks, jokes, slurs, or propositions or comments that disparage a person or group on the basis of characteristics protected by law;
• derogatory or suggestive posters, cartoons, photographs, calendars, graffiti, drawings, other material, or gestures;
• inappropriate touching, hitting, pushing, or other aggressive physical contact or threats to take such action, and
• unsolicited sexual advances, requests, or demands, explicit or implicit, for sexual favors.

When an employer is aware of possibly-unlawful conduct, it has a legal duty to investigate and promptly remedy and problems. An employer can be held financially responsible for violations of these laws.

There are many faces to the problem

By the way, this is not just woman vs. man stuff, although many claims are framed that way. Today, claims of workplace harassment are filed with federal (Equal Employment Opportunity Employment Commission- EEOC) and state agencies (Utah Labor Commission Antidiscrimination and Labor Division- UALD) by men against women, by women against men, by women against women, and by men against men. See various EEOC reports found here and here.

EEOC report questions employer anti-harassment efforts

The EEOC also recently issued a report suggesting that employers should consider taking a different approach to preventing harassment in the workplace. The report, resulting from an EEOC task force study over 2015-16, notes that despite ongoing employer efforts, harassment claims remain a major problem in today’s workplaces. Thus, the report says employers should “reboot” their prevention efforts. The report calls for a renewed commitment from management to provide a respectful workplace without harassment, development of better policies regarding reporting and investigation, and an investment in effective training. The report says the best training focuses on preventing harassment rather than limiting liability, and suggests that live, plain-language and interactive training is best. You can read an executive summary of the report here and read the full report here.

What should an employer do?

To prevent harassment and discrimination and minimize legal risk, I tell my employer clients to focus on five basic goals:

1. Have clear policies regarding professional workplace behavior with effective mechanisms that encourage employees to raise issues and complaints;
2. Conduct employee/supervisor training, focus on establishing a workplace of civility, respect, and effective communication, and remember that supervisors must set a good example;
3. Try to head off possible problems proactively by investigating complaints and enforcing policies; deal with the “aftermath” to minimize the risk of retaliation claims;
4. Be consistent in decision-making and carefully document the same;
5. Focus on job relatedness—that is qualifications, demonstrated job performance, skills, etc., in decision-making, not on factors such as sex, race, etc.

Conclusion

Harvey Weinstein made movies, but the misbehaviors he is accused of also are real life problems in most workplaces today. As employers, we all get the chance to write the positive ending to this particular story, so get to it.

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.