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The #MeToo Movement Has Vast Implications in This Sector

The #MeToo movement has brought about change and challenge — from a liability standpoint — in workplaces of all kinds. And this includes the broad spectrum of education. Indeed, recent cases indicate that courts may soon hold schools, colleges, and universities strictly liable for any sexual misconduct by their staff toward their students.

By Justice John Greaney, Jeffrey Poindexter, and Elizabeth Zuckerman

By now, we’ve all seen the #MeToo movement change how Massachusetts and the nation are talking about sexual harassment and other misconduct in the workplace, in schools, in social settings, on sports teams, in public places, and in our private lives.

Justice John Greaney

Jeffrey Poindexter

Elizabeth Zuckerman

The movement has ended careers, felled prominent figures, and made many newly aware of the great number of people — men and women — who face sexual harassment at some point in their lives. It has also reminded students, teachers, professors, administrators, and parents that schools and institutions of higher education are far from immune to this type of misconduct, and that students are sometimes victims of the very staff, faculty, and coaches expected to educate, guide, coach, and protect them.

Against this backdrop, administrators of Massachusetts schools, colleges, and universities have a special reason to take note of the rising tide of complaints about sexual harassment and other gender-based discrimination. The sea change in how sexual harassment is viewed, along with the development of Massachusetts law surrounding sexual harassment in schools, colleges, and universities, suggest that Massachusetts courts may soon hold these institutions strictly liable for any sexual misconduct by their staff toward their students.

That means, whether or not the school, college, or university knew about the conduct, whether or not the institution was negligent in any way, it could be on the hook for substantial damages if a staff member commits sexual harassment. In other words, even without doing anything wrong, or knowing anything wrong was happening, an educational institution could be liable for the entirety of the harm that befalls a student.

As a result, schools, colleges, and universities need to act now to implement policies which provide the best defense if a claim of sexual harassment is made.

In Massachusetts, Chapter 151C of the General Laws, the Massachusetts Fair Educational Practices Act (MFEPA), provides students who have been subjected to sexual harassment by a teacher, coach, guidance counselor, or other school personnel with a cause of action against the educational institution. MFEPA declares that “it shall be an unfair educational practice for an educational institution … to sexually harass students in any program or course of study in any educational institution.” In conjunction with General Laws c. 214, § 1C, the right for students to be free of harassment can be enforced through the Massachusetts Commission Against Discrimination (MCAD) or through the Superior Court.

“Administrators of Massachusetts schools, colleges, and universities have a special reason to take note of the rising tide of complaints about sexual harassment and other gender-based discrimination.”

The statutes also define sexual harassment broadly, including “any sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (i) submission to or rejection of such advances, requests, or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges, or placement services or as a basis for the evaluation of academic achievement; or (ii) such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual’s education by creating an intimidating, hostile, humiliating, or sexually offensive educational environment.”

Chapter 151C has been interpreted several times in the courts in Massachusetts, including when:

• A male athletic director of a Massachusetts community college was reported to have provided alcohol to female students in exchange for sexual favors. Several years later, more complaints about his behavior led the college to implement a policy to prevent sexual harassment.

Reports of further inappropriate conduct led to an investigation and agreement that he would no longer coach female athletic teams. However, he continued to work at the school and, eventually, resumed coaching a women’s basketball team. Students who had been coached by the athletic director brought claims against both him and the school.

• During the investigation into a rape of a student by a teacher at a Massachusetts high school, it was disclosed that a male guidance counselor had been involved in sexual misconduct with students. The superintendent of the school district acknowledged that he was aware of continuing reports about the guidance counselor’s inappropriate relationships with students after a female student alleged that the counselor had brought her to his home on two occasions and attempted to coerce her into having sex.

• Parents reported the inappropriate conduct of a male middle-school science teacher to the vice principal and a guidance counselor. The teacher had made inappropriate comments and touched female students, and had been told by school officials to stop on three occasions. The teacher was fired after an internal investigation, but not before he allegedly molested an 11-year-old student.

Despite occasions to consider the applications of Chapter 151C, Massachusetts courts have not yet decided whether schools, colleges, and universities will be held strictly vicariously liable for sexual harassment. In the cases referenced above, it appears the schools or colleges knew about the misconduct and, at least passively, allowed it to continue.

That means that the schools or colleges could be considered negligent, because they knew, or should have known, an employee’s behavior was problematic, but they failed to act, or failed to take adequate measures to remedy the situation. However, if Massachusetts courts rule for strict liability under Chapter 151C, it will mean that it is no defense that the institution did not know what its employee was doing, or even that it took reasonable measures to screen that employee before hiring.

Instead, the mere occurrence of sexual harassment by an employee will be enough to make the institution liable to the victim.

There are indications this may be the direction in which the courts go, because a closely related statute, Chapter 151B, which governs sexual harassment in the workplace, does impose strict liability. It seems entirely possible that the courts will conclude that liability under Chapter 151C should be no different, given that the two statutes relate to the same subject matter and share a common purpose.

Furthermore, because the operative statute is clearly intended to protect vulnerable students from abuses of power by those entrusted with their well-being, it seems likely that the courts may conclude that a strict standard of liability is consistent with the underlying purposes of the statute.

“The rising awareness of the problem of sexual harassment and assault appears to make it more likely that courts will conclude that the only way to stem the tide of abuse is to put the burden on those in the best position to protect vulnerable students — the schools they attend.”

This argument seems strengthened by the popular mood regarding sexual harassment. The rising awareness of the problem of sexual harassment and assault appears to make it more likely that courts will conclude that the only way to stem the tide of abuse is to put the burden on those in the best position to protect vulnerable students — the schools they attend.

Two recent decisions suggest this result may be coming. In a 2016 federal court case, Doe v. Brashaw, Judge Douglas Woodlock gave the first indication that the courts may come down on the side of strict liability under Chapter 151C. He noted there was no clear guidance in the text of the law on whether negligence was required to hold the school, college, or university liable.

Weighing the arguments on each side, he concluded it made sense, at least at the early stage in the case at which he was reviewing the matter, to apply a strict vicarious liability standard.

More recently, in 2017, another federal judge again noted that the standard was unsettled and deferred considering the argument, made by the Massachusetts Institute of Technology as defendant, that it was entitled to a more favorable standard than strict liability.

Given the significant risk that Massachusetts schools, colleges, and universities will be considered liable for their employees’ misconduct, regardless of what they knew, or didn’t know, about it, how can these institutions respond? The answer is that schools, colleges, and universities need to ensure their sexual-harassment, disciplinary, and hiring policies are up to date.

This will allow these institutions to avoid hiring or retaining employees who show any indication that they will engage in sexually harassing behavior, and also allow the institutions to respond rapidly and effectively if any employee does. In addition, schools, colleges, and universities need to appropriately train and supervise all employees.

For many institutions, this will mean implementing new requirements for training and new policies for ensuring sexual harassment cannot go on in a school, college, or university without rapid detection. In addition to in-house training, the institutions should consider learning sessions taught by outside consultants, particularly law firms, with experience in handling sexual misconduct in the educational environment.

Outside investigations by impartial law firms will, when appropriate, removed the inference of bias on the part of the educational institution when considering possible misconduct by a teacher, administrator, or staff member. In sum, educational institutions need to be prepared to act quickly and decisively when faced with a complaint of sexual harassment in order to remediate any misconduct.

Justice John Greaney is a former justice of the Supreme Judicial Court and senior counsel at Bulkley Richardson. Jeffrey Poindexter is a partner and co-chair of the Litigation Department at Bulkley Richardson. Elizabeth Zuckerman is an associate in the Litigation Department at Bulkley Richardson.

Law

A Disturbing Trend

By Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

The #MeToo movement exploded back in 2017. With #MeToo in the news almost a daily, women everywhere became more comfortable coming forward and reporting harassment and telling their stories.

As a result, women felt empowered, but has sharing their stories hurt them in other ways? According to a recent survey conducted by LeanIn.org, the answer to that question might be yes.

Over the past two years, LeanIn.org — an organization dedicated to helping women come together and achieve their goals — conducted surveys to gain an understanding of what individuals are experiencing at work. One of the surveys revealed that, in the post-#MeToo world, women may be receiving less support at work from male managers and may be hindered in their ability to seek career advancement.

The survey, titled “Working Relationships in the #MeToo Era,” suggested that 60% of male managers reported they were not comfortable participating in common work activities — mentoring, working alone, or socializing — with women.

To put that into perspective, according to LeanIn.org, that percentage was only 32% just a year ago. The survey also noted that senior-level men were 12 times “more likely to hesitate to have one-on-one meetings” with junior female employees, nine times “more likely to hesitate to travel [with junior female employees] for work,” and six times “more likely to hesitate to have work dinners” with junior female employees. According to the survey results, 36% of men said they avoided mentoring or socializing with women because they were concerned about how it might look.

Worrisome Results for Employers

The results suggest that #MeToo may actually lead to more gender discrimination in the workplace. If male members of management distance themselves from mentoring, working alone with, and socializing with women, they might be creating legal liability for their employer because they are giving women less opportunity to advance and succeed with the organization.

For example, while work performance is always a factor in decisions regarding promotions, skills learned through mentoring and workplace connections and relationships also play an important role. If a female employee is denied a promotion due her lack of mentorship and/or workplace connections and relationships, and she did not have access to those things like her male colleagues did simply because of her gender, the employer could be subject to a gender-discrimination lawsuit.

The survey did contain some good news for employers: 70% of employees, compared to 46% in 2018, reported that their company was doing more to address sexual harassment. The increase in this statistic is likely because more employers are conducting annual sexual-harassment training in the post-#MeToo world. Unfortunately, the remainder of the survey results suggest that training alone is not enough.

Proactive Steps

Employers should continue to address harassment in the workplace through their anti-harassment policies and by conducting annual anti-harassment training, but they also need to do more to educate employees regarding other forms of discrimination.

First, employers should have an equal-employment-opportunity policy that clearly outlines that discrimination based on gender or any other characteristic protected by law is expressly prohibited. The policy should also outline how an employee may file an internal complaint of discrimination at the workplace.

Second, employers should add annual anti-discrimination training to their training agenda. Implementing effective training will demonstrate that you care about the issue and are taking it seriously, which could help you defend against a lawsuit if an employee decides to bring one.

Finally, employers should remember that gender discrimination doesn’t just arise in this context. Businesses should take a close look at compensation practices to be sure there are no pay-inequity issues. Studies show that women in America earn about 80 cents for every dollar paid to men. Not only is this wage gap a fundamental problem, but it can also lead to serious legal trouble for an employer. Case in point: the World Cup-champion U.S. women’s soccer team’s lawsuit alleging pay inequity and “institutionalized gender discrimination.”

Bottom Line

It is clear that #MeToo has led to important changes in the workplace, but LeanIn.org’s recent study suggests that employers need to continue to be proactive and take steps to create a culture free from harassment, but also address other forms of discrimination.

The full survey results can be found at leanin.org/sexual-harassment-backlash-survey-results.

Amelia J. Holstrom is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation, harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

Opinion

Considering the Downside of #MeToo

As the #MeToo Movement was gaining traction back in late 2017, we wrote about how refreshing that moment was and that it had the potential to change the workplace in a very positive way.

But we also offered a word of caution, a reminder that this same movement might bring about negative change in the form of men becoming less willing to interact with women, mentor them, and take them on conferences and other learning experiences because of potentially bad optics and, far worse in their minds, potential litigation.

And now, it appears that those fears have possibly become reality.

Indeed, in an eye-opening piece, attorney Amelia Holstrom, an employment-law specialist with the firm Skoler Abbott, reveals that evidence is emerging that #MeToo may be prompting more men to err on what they would consider the side of caution.

Holstrom writes that a survey conducted by LeanIn.org — an organization dedicated to helping women come together and achieve their goals — and titled “Working Relationships in the #MeToo Era,” suggested that 60% of male managers reported they were not comfortable participating in common work activities — mentoring, working alone, or socializing — with women.

That’s compared to 32% in a survey conducted a year earlier. Further, the recent survey also noted that senior-level men were 12 times “more likely to hesitate to have one-on-one meetings” with junior female employees, nine times “more likely to hesitate to travel [with junior female employees] for work,” and six times “more likely to hesitate to have work dinners” with junior female employees. According to the survey results, 36% of men said they avoided mentoring or socializing with women because they were concerned about how it might look.

These are very disconcerting numbers, to be sure.

Holstrom went on to write about how this type of behavior can lead to litigation of a different kind — discrimination suits because women are being denied some of the same opportunities to advance and succeed as men — and this is a very important point.

But beyond the litigation factor, this hesitancy among men to travel with women or have dinner with them or avoid mentoring is simply not good for the business in question. And not good for society, and individual regions like this one.

That’s because the world is changing, and so is the world of work. What this region, and every region, needs is strong, effective leaders. And while it’s very possible that a woman can become a good, solid leader without interacting with men or being mentored by them, we would offer that it seems less likely that they could do so.

Workplaces are better, more productive spaces when individuals don’t have to think twice about the gender of the person they may be supervising or mentoring or thinking about taking to a professional-development conference in a city halfway across the country.

That’s a perfect world, and this is far from a perfect world. But with #MeToo, there was hope that we might be moving closer to a perfect world. Perhaps, but these survey results are unsettling.

We can only hope that, with time, these trends will reverse themselves and women can be not only free of sexual harassment, but in a position to access all the same opportunities as men.

Employment

One Year Later

By John S. Gannon, Esq. and Amelia J. Holstrom, Esq.

The #MeToo movement began making national headlines just over a year ago.

Since then, more than 200 prominent individuals have been accused of harassment. From Harvey Weinstein to Matt Lauer to newly appointed Supreme Court Justice Brett Cavanaugh, new allegations of sexual harassment have been appearing in the news almost weekly, and sometimes daily, over the last year.

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

It should not come as any surprise that employers are feeling the impact of the #MeToo movement. The number of sexual-harassment lawsuits filed increased drastically from 2017 to 2018. In October 2018, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal discrimination and harassment laws, released preliminary data for fiscal year 2018 showing that, for the first time since at least 2010, the number of sexual-harassment charges filed with the EEOC increased.

Additionally, the EEOC reported that it had filed 41 lawsuits alleging sexual harassment, more than a 50% increase over the previous year, and that it had collected close to $70 million on behalf of sexual-harassment victims in fiscal year 2018. The number of lawsuits is not the only thing on the rise; juries seem more willing to issue large damage awards to plaintiffs alleging sexual harassment. Just a few months ago, a jury in Massachusetts awarded a plaintiff more than $3 million in damages in a sexual harassment lawsuit.

Best Practices for Employers

Businesses that want to avoid being another #MeToo statistic need to take a hard look at their culture and ask: What are we doing to provide a workplace free from harassment? With allegations of harassment and lawsuits on the rise, now is an important time for employers to revisit best practices and take proactive steps aimed at protecting employees and reducing legal risk.

First, employers must have an anti-harassment policy, which should clearly outline the internal complaint and investigation procedure. State law requires employers of six or more employees to have a written sexual-harassment policy that is distributed at time of hire and annually to all employees. Among other things, the policy must include a notice that sexual harassment is unlawful and that it is unlawful to retaliate against someone who reports sexual harassment or participates in an investigation. 

The policy should also outline where and how employees can bring internal complaints of harassment and what the investigation procedure is. If either of these processes are unclear at your workplace, now is the time to revisit them and develop a complaint process and investigation procedure.

Second, employers should be doing annual sexual-harassment training. Although Massachusetts law only encourages training, implementing effective harassment training into your workplace culture demonstrates that you care about the issue. It also can protect you against a costly lawsuit.

Under the law, if a supervisor harasses a subordinate or knows about harassment but fails to take prompt steps to report, investigate, and stop the conduct, the supervisor has created significant legal risk for the employer. As a result, it is important that supervisors receive periodic training on what constitutes sexual harassment and what to do if they receive a sexual-harassment complaint or observe potential harassment in the workplace. A few hours of training per year could save an employer from a costly lawsuit. Further, annual training for all employees can be beneficial because it highlights what is not acceptable and outlines the serious repercussions, including termination, for harassing behavior.

Preventing Costly Litigation

As noted at the outset, juries are issuing multi-million-dollar awards in harassment cases. At the same time, employment-discrimination cases are also seeing record-setting jury verdicts. Earlier this year, a jury in Massachusetts awarded a plaintiff $28 million in a discrimination and retaliation case. Read that sentence again.

Having solid policies and engaging in regular training can get employers only so far. In order to avoid the risk of a runaway jury, employers may want to consider requiring employees to enter into agreements calling for private arbitration of employment disputes. Commonly referred to as arbitration agreements, these employment agreements require that employee and employer submit all disputes to a neutral arbitrator, as opposed to filing a lawsuit in court and having the case decided by a jury.

The arbitration process is typically less costly and time-consuming than court actions. Plus, the arbitration decision is usually final, as there are only limited opportunities for either side to appeal.

Bottom Line

The #MeToo movement is undoubtedly bringing positive changes to the workplace. Still, businesses need to be proactive and take steps to create a culture free from harassment. This starts with an effective workplace policy against harassment and regular training for employees.

If a culture change is necessary, it has to start at the top. Leaders lead by example, and these folks must be more committed than anyone to creating an environment free from harassing behavior.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected] Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

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