Lessons from the #MeToo Wave

There Are Many, for Employers and Employees Alike

By Erica E. Flores

As 2017 winds to a close, society continues to be rocked by the Harvey Weinstein scandal, the #MeToo movement, and the unending torrent of allegations against prominent and powerful men. We find ourselves wondering what happened.

Or, more importantly, how this has been going on for so long, seemingly undetected. But sexual harassment isn’t a new problem. And it’s not a problem that went away and is just now returning. No, sexual harassment has always existed, in one form or another.

After the Mad Men era, perhaps it became a bit more taboo, and less an accepted norm, but it did not go away. So why now? And more importantly, what can we — the concerned bystanders, responsible business owners, and innocent professionals — take away from all of this?

It is clear that the first allegations against Weinstein struck a chord in the collective consciousness of the American woman, but we may never fully understand how or why the dam broke as and when it did. After Bill Cosby, maybe we had simply had enough, and when those first cracks appeared, the levee was inevitably doomed. Ultimately, the why is not so important.

Because, just as sexual harassment is not a new problem, it is also not a problem that will ever be solved completely. People behave badly, especially when emboldened by an imbalance of power. And the workplace provides both the temptation and the authority for bad people to do bad things.

Which brings me to the second question — the takeaways. As a management-side employment attorney and a woman, I see in this avalanche of public shaming both lessons and warnings. The lessons are caution and vigilance. Whether you are a man, woman, or gender-fluid; straight, gay, or bisexual; supervisor, subordinate, or human-resources professional, you must exercise caution as you go about your affairs at work. No matter what side of the power equation you are on, you should always be aware of the effect your words may have on others, the messages and signals you are communicating, and the risks you run when the lines between friend and colleague start to blur.

While being cautious about your own behaviors, however, you must also be vigilant when it comes to what is going on around you, and you cannot be afraid to speak up, no matter how high or low on the totem pole you are. We all share a responsibility to protect our co-workers, at every level; to make sure that we all can enjoy a safe and comfortable workplace where we can and will perform at our best. We also share a responsibility to protect our company’s brand, the reputation each of us has worked so hard to earn and maintain, for the benefit of every one of us and our families.

Which brings me to the warnings. The law is not forgiving when it comes to sexual harassment. Employers are strictly liable for sexual harassment committed by managers, and anybody — yes, anybody — can be held legally responsible for aiding and abetting sexual harassment. What does that mean? It means whatever a judge or jury decides it means, and in this moment in time, I suspect it means much more than you might think.

Make no mistake — society is desperate for consequences, and this public purging will not stop at the top. Small businesses in small communities are just as vulnerable, and there will be lots of blame to go around for the behavior of those who are eventually outed.

So before you or your business become the story, take steps to protect yourself. Employees cannot be afraid to speak up, and employers should encourage them to come forward. Businesses should also consider reviewing and revising their sexual-harassment policies, reiterating that employees who come forward will not face retaliation, and perhaps even provide additional training to supervisors and human resources personnel.

Most importantly, employers must make sure they are addressing complaints promptly and properly. That means being thorough but objective, and fair but strict. It means talking to the right people, asking the right questions, looking in the right places, and preparing the right forms of documentation. None of this is obvious or easy, so when in doubt, get your employment attorneys involved.

After all, while the tide will eventually ebb, sexual harassment will never go away completely.

Erica E. Flores is an attorney at Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters. She has successfully defended employers before state and federal courts and administrative agencies. In addition to her litigation practice, she regularly advises clients with respect to day-to-day employment issues, including decisions regarding adverse employment actions and litigation avoidance;(413) 737-4753; [email protected]