Attorneys representing both corporations and victims in sexual harassment cases appear to agree on one thing: Sexual harassment cases will never be totally eradicated.
Executive SummaryThis is Part 3 of a Carrier Management four-part series looking at sexual harassment in the property/casualty insurance industry. For this installment, CM spoke to four attorneys who have handled sexual harassment cases. Here they discuss how companies have responded in the wake of the #MeToo movement.
Where they differ: On whether corporations have done enough with better training and enforcement to combat the problem and enable real improvements in work dynamics.
Crosses All Industries
Christine Howard, a Tampa, Fla.-based regional managing partner for the law firm Fisher & Phillips, has handled the management side for sexual harassment cases involving insurance companies. She has handled these kinds of cases for more than 27 years.
Howard said that she has not seen an upswing of sexual harassment cases in recent years and noted that federal statistics show that they have stayed relatively the same over the last decade. That could change for 2018 in the wake of the #MeToo movement, she said, adding that she sees the movement likely leading to an uptick in more sexual harassment cases.
But Howard said her firm has seen an increase in companies seeking advice on internal complaints of discrimination/sexual harassment, and they’ve moved ahead with investigations and training for both management and nonmanagement employees.
“We have definitely seen an uptick in companies reaching out for that type of assistance to educate their employees or re-educate their employees, or go with slightly different training [to] deal with the culture of the workplace” versus just focusing on the legalities of sexual harassment, she said. “They focus on behaviors from the top down that can help with the culture of the company.”
Howard said that all companies need to boost their awareness of sexual harassment, regardless of industry, and focus on what they can do “to promote an environment of respect, rather than just focusing on sexual harassment training.”
Companies are also smart to handle sexual harassment complaints quickly and internally, she said.
“If [complaints] can be handled internally through prompt action and proper action to ensure that to the extent there was harassment, that it does not occur again, there are very good opportunities for that situation to never find itself in the litigation arena or before the Equal Employment Opportunity Commission,” Howard said.
She said that employers had a period of being more proactive about the issue, but then things got quieter. #MeToo has heightened the awareness in a good way, she said, with a broader focus on making sexual harassment policies more proactive.
The goal, she said, is to make sure employees understand “they don’t need to keep these things secret, and hopefully [they can] report them.”
Howard said that when she represents corporate clients in sexual harassment cases, she often hears complete denials and finds there is no witness. “You have to do the best with the information you have.” All complaints should be taken seriously, she added.
“I know it is difficult for complainants to come forward,” Howard said. “That is why a company really has to show their employees they encourage and have a culture of being receptive to those concerns so they can know about it and address it.”
Howard said her insurer clients are particularly receptive to investigating claims early on.
“They tend to want a very early assessment [and to know] if there were problems that were not handled appropriately, or on the other hand, if the actions of their human resources department or upper management were swift, prompt and proper,” she said. “They understand litigation.”
A Few Caveats
April Boyer, a partner at the law firm K&L Gates in Miami, represents the management side for sexual harassment in both counseling and litigation. She said corporate America has worked hard to create safer work environments where sexual harassment is not tolerated.
“In my opinion, corporate America has been cognizant of their obligations to prevent sexual harassment and have taken steps to do so for years,” Boyer said.
At the same time, she acknowledged that the #MeToo movement has encouraged employers to revisit the policies, practices and training they have in place to combat the problem.
“I think the current movement is revitalizing and encouraging employers to ensure that the measures they are taking are working,” Boyer added.
Still, she admits that harassment can happen, despite employers’ best efforts to prevent it.
“I believe that as much as employers try to create a healthy work environment, there are people in the work environment that can violate the law,” Boyer noted. “What I do see is that employers respond and promptly fix it when they learn about it.”
More Claims, More Awareness
Employment attorney Brett Schneider has defended companies in sexual harassment lawsuits and internal cases for about 19 years. He’s seen claims rise, in part because of #MeToo but also due to what he sees as companies changing their perception of the damage sexual harassment allegations can cause to their bottom line.
“There were women in industries of all kinds who had been subjected to some form of harassment, for probably some time, who had kept quiet out of fear that it would impact their positions and promotion opportunities,” said Schneider, chair of Weiss Serota Helfman Cole & Bierman’s labor and employment practice group and managing director of its Palm Beach office.
He said that in recent years, culminating with the #MeToo movement, there has been an increasing willingness of victims to come forward.
At the same time, Schneider said some may be manufacturing claims because of work performance issues.
“There is a segment of women [in the workforce] and others where you see people who are not performing well, job-wise, who had perhaps sensed they may be on the cusp of being terminated, coming forward in an attempt to create/manufacture a claim to protect themselves,” he argued.
Schneider said companies now see that they risk causing themselves economic harm if they don’t address sexual harassment claims.
“Their calculus was the economic impact on companies addressing this was outweighed by the economic impact of not addressing this,” Schneider said, such as focusing on a confidential settlement rather than firing a high-profile executive or public figure. Now, he added, companies view sexual harassment cases and charges as “a public perception problem” that has “business ramifications.”
Today, Schneider said that the corporate climate has improved, making sexual harassment less likely than in the past as corporations pursue awareness training and establish better policies, and employees become increasingly willing to file complaints when they happen. Most of the complaints he handles now, he added, are internal complaints rather than outright lawsuits.
Schneider observed that training and strong sexual harassment policies (including those that prohibit retaliation when complaints are filed) can only go so far in the end.
“I tell clients: ‘No matter how good you are and how much you train, there is going to be harassment. There is nothing you can do to ensure it doesn’t happen. When it does happen, make sure you take it seriously and investigate,'” Schneider said.
He added that he advises his corporate clients to take complaints seriously, investigate, interview the accuser and any witnesses, prepare a report, and take “appropriate action”—which means any disciplinary action commensurate to the offense.
Still a Problem
Alexis Ronickher, an employment attorney and partner with Katz, Marshall & Banks in Washington, D.C., represents employees in sexual harassment cases and has done so for about 10 years. She said that sexual harassment remains a big problem in corporate America.
“The issues that people face can be different in corporate America than in other fields,” Ronickher said. “If you work for, say, a large Fortune 500 company that has pretty set HR functions, you are going to face different issues with sexual harassment than if you work for, say, a congressional office or as an administrative assistant or executive assistant to someone in Hollywood.”
According to Ronickher, those solutions often fall short. Typically, she said, large companies will transfer women who have filed a sexual harassment complaint to another office to avoid the alleged harasser. This is often a lesser office, she noted, “with fewer avenues for career progression, or not in a field she was in before,” or one that comes with some other challenge that harms the accuser.
“It is a sidelining of her career,” she said.
Ronickher said that companies often have “a robust HR process.” But her clients have often found this to be “hostile and nontransparent.” As a result, managers often are unaware of the situation, or human resources sometimes gives information understood to be confidential to the harasser, “so they are being retaliated against quickly.”
Over the last decade, Ronickher said her firm has been seeing more sexual harassment cases as awareness of the issue has risen.
“Awareness is up,” she said. “Women feel more able to come forward. Their co-workers are willing to speak out and support that they have seen it too, which helps support women coming forward.”
Still, there remains a lot of fear among sexual harassment victims. There’s progress, as well.
“We’ve been resolving cases where the man [accused] is getting fired, where the woman [victim] if she wants to stay, is staying,” she said.
“It’s heartening, with [corporate] boards getting involved,” Ronickher said. “They are starting to see that they can’t just be hands-off on these issues. Boards are starting to realize they could have liability themselves, regardless if the company performance is going to be affected if brought into a #MeToo situation.”
The #MeToo movement has boosted awareness of sexual harassment even further, Ronickher said, adding she sees it as effecting a new perspective among companies, managers and employees alike.
“I do think there is going to be a lasting change from this,” she said.