Preventing and Managing Harassment Claims in the #MeToo Era

From 3rd to 5th April 2019, Woodfines’ Employment Law Consultant, Keith Corkan, attended the International Bar Association’s Annual Employment and Diversity Conference in Paris. The theme of the conference was ‘employment law in difficult times’, and here, he reports on the final session of the day, which considered harassment claims following the #MeToo movement:

There was never any risk of the final Friday afternoon “graveyard” session of the IBA Annual Employment and Diversity Law Conference being anything less than lively, given the experience of the participants and the topical subject matter of harassment claims in the #MeToo era. The #MeToo movement has spawned numerous sexual harassment claims against high powered executives and their employers. HR departments, internal and external counsel have struggled to respond effectively and to successfully address the challenges posed, with legislatures and regulators in many jurisdictions imposing new obligations on employers and their advisors.

There was a general consensus that at the heart of many harassment claims is an imbalance of gender power, often fuelled by pay equity differentials involving highly paid senior male executives. Many jurisdictions have enacted gender pay disclosure rules designed to address such differentials, and although it may be premature to draw firm conclusions about the efficacy of such rules, there are signs that companies are in many instances failing to comply.

The panellists were in broad agreement that advisors need to be aware of these power imbalances and cultural changes in the workplace in addition to relevant discrimination legislation, and specifically their own organisation’s internal culture. This includes encouraging employees to speak up, training managers to proactively investigate allegations of harassment, and taking swift and effective action against the perpetrators whilst conveying a clear message to all employees. Codes of conduct need to be reviewed and updated regularly to reflect the societal and cultural changes taking place in many jurisdictions.

Mentoring programmes are proving to be effective in many organisations and in the UK, the concept of “reverse mentoring” involving a junior female mentoring a senior male executive is taking root. Despite many companies embracing these developments, it was noted that in some cases witnesses remain reluctant to come forward and give evidence, presenting further challenges for advisors.

Concern was expressed about the nature of detailed and expensive investigations being carried out by companies in an attempt to address these issues, and the goal of entirely eradicating harassment from the workplace, with many organisations adopting zero tolerance standards. External investigations in particular are proving to be time consuming and a drain on resources for many organisations. Some of the panellists queried whether this could be avoided with perhaps in some cases, the adoption of an abbreviated or curtailed process.

This raises potentially difficult issues for companies given the ethical and legal obligation to conduct a proper investigation in numerous jurisdictions, not to mention the modern cultural expectation that all claims should be fully investigated. For example in the UK, any failure to follow due process could make claims of discrimination and unfair dismissal difficult to defend. Nor should companies overlook the rights of the accused, given that in some instances, claims remain unsubstantiated. In addition, financial regulators are increasingly expecting action to be taken against perpetrators of harassment.

That is not to say that companies need to adopt zero tolerance under which every aspect of workplace conduct is scrutinised to the extent of impacting on a conducive working environment. After all, as one panellist observed, both Bill Gates and Barak Obama met their future partners in the workplace. This also presents a difficult issue for companies given the expectation of complying with modern standards of “correctness.” It should perhaps not be forgotten that women in general have had to deal with a wide range of discriminatory conduct over an extensive period with reliance on “self-help” remedies in many situations, whether protecting their ideas, asserting themselves in meetings or dealing with forms of assault; in other words, successfully working within the system.

Given the scope of issues, the panellists were unable to comment at length on the thorny issue of settlement agreements, and how in many jurisdictions they are being used to prevent legitimate disclosure of unlawful conduct to regulators and the police. In the UK, there are important new regulations imposing duties on legal advisors to have regard to the public interest and the administration of justice in addition to obligations owed to their own clients.

It was observed that some law firms have had to deal with misconduct issues in relation to their own partners, and have had to comply with separate regulations requiring disclosure to the regulator, while concurrently drafting the terms of a settlement agreement. What has recently emerged in the UK is a lack of awareness of these obligations on the part of legal advisors, with the regulator in some cases taking swift enforcement action against the offending law firm.

All that being said, in many jurisdictions, including the UK, the courts continue to enforce settlement agreements, and in the UK the judges remain receptive to granting temporary orders restraining the publication of harassment allegations (including those against some law firm partners), on the grounds of confidentiality obligations under the GDPR. It remains to be seen how these competing interests will be resolved upon final adjudication.

It will be interesting to see how these principles evolve prior to next year’s conference in Madrid, and to what extent gender inequality and gender pay equity issues can be successfully addressed in this period.

– Keith Corkan