It appears the #MeToo movement isn’t only having an effect at the highest echelons of corporations. According to early data from the Equal Employment Opportunity Commission released Oct. 4, lawsuits for sexual harassment filed by the agency jumped more than 50 percent in fiscal year 2018 over the year before, with 41 filed. But employment law attorneys say it’s unlikely that just an increase in harassment itself is driving the sharp uptick.
“Sometimes people just think that it’s the price of having a job, that you put up with being hassled at work,” said Danielle Urban, a partner at Fisher Phillips in Denver. “And I think some people are realizing the kind of harassment that [they’re ] suffering is actually legally actionable sexual harassment.” She said the #MeToo movement is likely playing a role in the increase, with victims realizing they’ve experienced the type of harassment making headlines and also more inclined to believe they’ll be taken seriously if they come forward.
“I also think that people might be feeling a little more comfortable coming forward, because there are so many people coming forward, and thinking that there might be a little more safety,” Urban said. According to 2017 data from the EEOC, 48.8 percent of charges brought by the agency that year were for retaliation against an employee making harassment allegations.
Patricia McMahon, the EEOC’s outreach and education coordinator for the Denver field office, said it’s difficult to measure whether certain types of behavior have become more or less commonly reported in allegations of sexual harassment. Each investigator handles their own set of complaints, so it would be difficult for each of them to know whether the complaints they’re looking at are distinctive or common.
“The only way we would be able to know whether or not the allegations are changing or broadening would be in the lawsuits,” she said.
Tip of the Iceberg
By a few measures, using lawsuits filed by the EEOC as a barometer for the current climate of sexual harassment is akin to sweeping a net across the surface of the ocean and calling it an accurate cross-section of marine life. Although the agency does not engage in confidential litigation or settlements, complaints are filed confidentially. And Urban said the EEOC does not take on a lawsuit itself in most situations, instead more commonly giving the complainant notice of their right to go forward as a private litigant.
A complainant has to exhaust their remedy options through the EEOC first, but they can move forward with a lawsuit privately whether the agency has found cause for their case or not. But the agency also will try to resolve complaints by alternative dispute resolution means, such as mediation.
McMahon said if parties go to mediation even before the EEOC goes through its investigative process, the mediation often serves as a useful reality check on a company’s environment.
“We try to explain to them, ‘In your world, it doesn’t look that bad, but you’re living in your world,’” she said, and the EEOC as a neutral party will try to help companies examine their culture from an outside perspective instead. “Would you be comfortable explaining to the health department why some employees don’t have to wash their hands? … When you explain this to us, you understand that you are actually explaining why it’s O.K. to have illegal employment practices.”
The relatively small number of lawsuits is in large part a practical monetary consideration. McMahon said the agency has to be deliberate about where it focuses its litigation resources, since it has a finite budget.
In a May 2017 budget justification submitted to Congress for fiscal year 2018, the agency requested $68,986,000 for private-sector litigation. The figure represents just under 20 percent of the total $357,807,000 requested by the agency for private and federal-sector enforcement. That includes other actions such as mediation, hearings and appeals.
According to the same report, the EEOC has a goal each year for at least 22 to 24 percent of its litigation docket to be cases focused on systemic discrimination issues.
“Our choosing not to file a lawsuit is not a comment on the litigation worthiness of a complaint,” McMahon said. “We’ll start with budget and work our way into other factors.”
Voluntary Compliance
Companies aren’t necessarily waiting until they get in trouble with the agency to take steps for improving their culture. Alex Tusia, human resources and sales operations coordinator at Onyx InSight, said the company reached out to the EEOC voluntarily for training on sexual harassment.
“We’ve always had the policies in place, but I feel like it really makes a difference when you have somebody from the EEOC come in and give a presentation and answer your questions so you can really pick her brain,” he said. He added the education is much different than when it’s only on paper.
He said the training helped him and coworkers understand different types of harassment and bullying from new perspectives. Tusia said they may have gone into the training thinking they knew everything about what harassment looks like, but they walked away feeling like they’d learned a new thing or two.
“On my end, it was putting myself in somebody else’s shoes saying, is something like this going to affect somebody else? And if that’s the circumstance, then you shouldn’t be doing it,” Tusia said. He added the training emphasized that employees want to work in an environment where they feel comfortable, and so that’s the ultimate goal to focus on.
“I think it’s good to be more proactive rather than reactive,” he said. “It’s a completely different conversation when we approach the EEOC and have them come in, versus we have an incident and then we have the EEOC come in.”
McMahon said employees have to want a good culture for training and policies to make any difference, and they break down when anyone thinks they are above the rules.
“[Harvey Weinstein’s company] had policies,” she said. “And they had lawyers that drafted those policies, and they were great policies, I’m sure. … This is where I think the #MeToo movement has been very effective. It’s actually given companies a different way of looking at sexual harassment.”
— Julia Cardi