It was the tweet heard around the world in 2017: "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet." Other than interacting with Alyssa Milano's now-famous tweet in response to the breaking news of the Harvey Weinstein allegations, what else has the world been doing in response to what has been dubbed the #MeToo movement? Obviously, the #MeToo movement has called attention to conduct that should have never occurred in the in the first instance and, most certainly, never in the workplace. The #MeToo movement, however, has shone a brighter light on unacceptable and outrageous conduct and the responsibility of everyone to do more to prevent and remedy it.
The #MeToo movement was actually founded by Turana Burke in 2006 to help girls and young women of color who had been victims of sexual violence. In January 2016, Pennsylvania Governor Tom Wolf launched the "It's On Us" campaign, a campaign to combat sexual assault on college and university campuses across Pennsylvania. With roots in the national counterpart of the same name, the campaign operates to ensure everyone takes responsibility to end sexual assault. It also seeks to motivate the community at large, including businesses and organizations, to take affirmative steps to end and prevent sexual assault. Grassroots efforts encourage dialogue about ending sexual assault. While this is important, many have found that change comes through formal channels as well, especially through laws.
Since 1955, Pennsylvania has had some sort of law, aiming to ensure employment practices are fair. The Pennsylvania Human Relations Act (PHRA) — formerly the Pennsylvania Fair Employment Practice Act — prohibits, among other things, discrimination and harassment on the basis of sex, gender and other protected traits. The PHRA provides ways for individuals, who have been the subject of discrimination or harassment, to seek relief under the law against their employer or former employer.
Over the course of the last four years, many bills have circulated in the Pennsylvania Legislature. As it comes to passing legislation that directly impacts private businesses with respect to anti-harassment efforts, however, none of these bills have passed. Examples of bill proposals that have yet to pass include: (1) requiring businesses to maintain a specific policy on anti-harassment, including specific content, and to maintain records related to these policies; (2) requiring businesses to implement interactive training regarding sexual harassment, to be given to employees every two years, (3) extending the statute of limitations under the PHRA from 180 days to two full years and extending the right to a demand a trial by jury under PHRA cases; (4) permitting a plaintiff to recover punitive damages under the PHRA if they can demonstrate the defendant engaged in unlawful discrimination with malice or reckless indifference to their rights; (5) requiring an award of attorneys' fees and costs unless there are special circumstances under the PHRA; (6) prohibiting nondisclosure provisions in settlement agreements, resolving sexual harassment claims; requiring businesses post fair practices notices in the workplace outlining examples harassment; and (7) expanding the PHRA to interns, volunteers and domestic and agricultural workers.
Currently, Delaware and New York require employers to provide interactive anti-harassment training and post detailed notices about sexual harassment. New Jersey is alongside Pennsylvania in not having either of these statutory requirements. That does not mean, however, that employers in Pennsylvania should not be establishing anti-harassment policies and implementing them through interactive training. Indeed, the legal response to the #MeToo movement has, in part, consisted of states relying upon the Faragher-Ellerth defense to guide them in what should be required of employers.
The Faragher-Ellerth defense comes from federal case law, which provides employers an affirmative defense in some sexual harassment cases if the employer can demonstrate they exercised reasonable care to prevent and eradicate sexual harassment and the plaintiff unreasonably failed to take advantage of those implemented safeguards. See Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998). Courts have interpreted this standard to mean that employers should have well-disseminated and effective policies against harassment. These policies should also provide for internal complaint procedures for victims or witnesses of harassment. In order to be well-disseminated, employers should be training their employees and make the training interactive to ensure employees understand.
Understanding what the law requires is one thing, but actually providing guidance to employers on how to prevent and remedy sexual harassment in the #MeToo era — i.e., what to write in a handbook or how to present training — is another.
Here are the guideposts for conversations with Pennsylvania employers:
- Make sure employers are relying upon counsel (versus solely an HR consulting or payroll company);
- Provide them with a comprehensive policy that prohibits harassment and provides for an internal complaint procedure;
- Ensure notices are posted in the workplace;
- Provide interactive training to their employees and separate additional training for supervisors and managers; and
- Ensure any complaints are promptly and thoroughly investigated, either through counsel or with the guidance of counsel throughout the process.
While none of these are required by statute or regulation in Pennsylvania, these are five helpful ways that employers can work to get ahead of harassment in the workplace and ensure that their employees feel and are safe.
New York provides resources, model policies, training modules and internal complaint forms that attorneys can easily rely upon to start drafting effective policies for Pennsylvania employers. Importantly, a well-drafted policy is ineffective left undistributed. Anti-harassment policies should be distributed upon hire or any revisions, and employers should always require a separate acknowledgment form for anti-harassment policies. Investigations should be well-documented and unbiased, as an employer cannot already have the result predetermined in their mind before they conduct the investigation.
It is critical for attorneys to still ensure their clients are preventing and remedying sexual harassment in the workplace despite a lack of statutory or regulatory requirements in Pennsylvania since the publicity of the #MeToo movement. Thanks to neighboring states, the tools to ensure a safer workplace are available.
Originally Published by: At Issue, Pennsylvania Bar Association's Young Lawyers Division Newsletter, March 2020
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