United States: When The Floodgates Open, Expect Water At Your Doorstep

Last Updated: November 16 2017
Article by David S. Kim

About a month ago, my colleague Kristin Gray wrote about the breaking Harvey Weinstein scandal and best practices for employers to prevent harassment and discrimination from invading the workplace. And while I have no intention of reiterating any of the excellent points Kristin covered in her piece, it would be ignoring the obvious not to say that a lot has transpired since that breaking news story.

Virtually every day since then, additional allegations of sexual harassment and misconduct have been made against prominent public figures. Not just individuals in Hollywood (which include everyone from executives, producers, writers and actors), but also against politicians, publishers and editors from various media organizations, news contributors, restauranteurs, and a slew of others. On top of these serious allegations, numerous individuals (both public figures and "regular" individuals like you and me) have utilized social media to share their own stories or harassment, not only sexually based but also other forms of harassment and bullying within the workplace.

It is not an exaggeration to say that this topic has quite literally been part of our daily news cycle for the past month. And it is not hyperbolic to state that employers need to be aware that, as a result, this topic is something they need to be able to address and address properly as claims of harassment are likely to increase. There's a reason why statistics demonstrate that Fair Labor Standards Act litigation increases after changes to wage and hour regulations are debated in the public realm, whether they are implemented or not. Sure, non-compliance is certainly a factor, but so is awareness, which results in empowerment, which results in action.

Now I am not comparing the clearly invidious acts of sexual harassment and other forms of harassment, which should be taken seriously at all times, with general wage and hour law. However, the reality is that public awareness of these types of harassment allegations has undoubtedly increased the conversation regarding misconduct in the workplace. When celebrities talk about struggling with drug addiction, recovering from a severe medical prognosis, or have dealt with another tragedy in their lives, they often talk about wanting to share their story to motivate or inspire those with a similar struggle. While many hear these stories and are moved by the message, they might not be technically inspired to act since they didn't experience what the person sharing their message did. But even if it's not you, there is someone out there who has been motivated by that story in one way or another, whether it's to kick their habit, resolve to overcome the disease they've been diagnosed with, or to simply fight harder despite the tragedy in their lives.

The same goes with allegations of harassment. It is no coincidence that the floodgates have opened since the Weinstein allegations came to light. People who have experienced similar forms of mistreatment have felt empowered to come forward with their own stories and the sheer number of allegations that have been levied make clear what we already know, that sexually based and other forms of harassment continue to exist in all forms of the workplace.

In March of this year, Senator Al Franken of Minnesota introduced a bill known as the Arbitration Fairness Act of 2017, which seeks to prohibit predispute arbitration agreements of employment, consumer, antitrust or civil rights disputes. Due to the recent spate of allegations regarding sexual harassment, those in favor of the bill have now specifically highlighted how victims of harassment in the workplace would benefit if they were not forced to go to arbitration, but rather could have the benefit of a trial by jury. While there are certainly contrasting arguments regarding the benefits to both parties in arbitrating claims, recent events of the last month demonstrate how social consciousness can affect the discussion of lawmaking.

But social consciousness also affects our everyday lives and workplaces. There can be no doubt that the social discussion surrounding sexual harassment will inspire and empower those in the workplace to also come forward with their stories, as it should. Employers, for their part, must be aware that they must be fully prepared to address any such allegations. Large companies throughout the country have instituted or fast-tracked mandatory harassment training in a direct response to the high-profile allegations in the news. All employers should consider these steps as well. As stated, the floodgates are open and employers must ensure that they timely treat these allegations completely and appropriately, or else risk drowning.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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