This practice note provides an overview of the statutes and standards governing the various legal issues implicated by the MeToo (or #MeToo) movement and addresses best practices for conducting sexual harassment workplace investigations in the MeToo era.
Specifically this note covers the following issues regarding sexual harassment workplace investigations:
- #MeToo Movement
- Legal Landscape
- Best Practices for Conducting a Sexual Harassment Investigation
- Best Practices to Prevent Sexual Harassment in the Workplace
For more guidance on conducting workplace investigations, see the Investigations task page.
For more information on workplace harassment, see the Discrimination, Harassment, and Retaliation task page. Also see Harassment Claim Prevention and Defense. For more information on state laws concerning workplace harassment, see Discrimination, Harassment, and Retaliation State Practice Notes Chart. For non-jurisdictional and state- specific forms on workplace harassment, see Discrimination, Harassment, and Retaliation State Expert Forms and Checklists Chart.
For information on key workplace harassment-related legal developments and other labor and employment legal developments in jurisdictions across the country, see Labor & Employment Key Legal Development Tracker.
In 2006, activist Tarana Burke began using the #MeToo hashtag to destigmatize survivors of sexual assault and raise awareness about the issue. Eleven years later, actress Alyssa Milano posted a viral tweet: "If you've been sexually harassed or assaulted write 'me too' as a reply to this tweet." Milano's tweet was shared over 200,000 times, sparking a global movement in the United States against sexual harassment and abuse. Along with Burke, Milano, and many others who spoke up about sexual abuse and harassment in the #MeToo movement in the United States, powerful parallel #MeToo movements also developed around the globe.
Coupled with the Black Lives Matter movement, which was founded in 2013 in response to the acquittal of Trayvon Martin's killer, the #MeToo movement has had a profound impact on how society regards discrimination, harassment, and assault within and outside of the workplace.
Among the impacts of the #MeToo movement on different facets of life, employers have shifted to focusing on issues of workplace harassment by:
- Increasingly investigating allegations of sexual harassment
- Adding anti-harassment policies to employee codes of conduct
- Establishing new procedures for addressing allegations - and-
- Enhancing employee training on topics including sexual harassment and corporate culture
Prior to the #MeToo movement, allegations of workplace misconduct were often met with inaction or handled privately. Perpetrators were not held accountable for sexual harassment and other sexual misconduct and instead faced nominal consequences, if any. Often, employers retaliated against employees reporting harassment. In recent years, there has been less tolerance for sexual harassment in the workplace with more women reporting sexual misconduct and perpetrators being held accountable through legal and nonlegal avenues.
Additionally, the U.S. Equal Employment and Opportunity Commission (EEOC) has experienced increased traffic to their website since the #MeToo movement became widespread. The EEOC has both brought multistate lawsuits against major corporations for sexual harassment and established a special task force dedicated to investigating the various legal challenges that arise in sexual harassment cases, including the propriety of mandatory arbitration in employment contracts.
Enhanced expectations on the part of the public, coupled with intense media and social media attention, have led to rapidly evolving views on what the appropriate standards of workplace conduct and employer accountability should be.
Employers, in turn, are taking a fresh look at the processes and procedures governing sexual harassment internal investigations in light of these heightened expectations. For example, in response to a scathing blog post detailing a toxic culture of sexual misconduct at Uber, the company conducted a robust internal investigation process led by former Attorney General Eric Holder to investigate company practices around sexual harassment. Uber adopted all of Holder's post-investigations including among others, specific personnel changes at the executive level to restructuring the board of directors to include independent seats.
This section addresses key legal issues regarding sexual harassment investigations and the #MeToo movement.
Definition of Sexual Harassment
The EEOC defines sexual harassment in its guidelines as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:
- Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment
- Submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual -or-
- Such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment 29 C.F.R. § 1604.11.
What Constitutes Actionable Sexual Harassment?
This section addresses actionable sexual harassment under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq. and various state laws.
Federal Law - Title VII
Employees commonly allege sexual harassment in violation of Title VII-a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, or religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. See Title VII Compliance Issues.
In 1980, the EEOC declared that workplace harassment, including harassment based on sex, race, and national origin, violates Title VII. However, conduct we now know as unlawful harassment was not widely recognized until 1986, when the Supreme Court in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), affirmed the EEOC's guidelines, interpreting Title VII's prohibition on sex to encompass both types of sexual harassment-"quid pro quo" harassment and harassment that creates a "hostile work environment."
Over the next several years, the Supreme Court continued to balance the need to discourage sexual harassment in the workplace without making every "pass" actionable. For example, in Harris v. Forklift Systems, 510 U.S. 17 (1993), the Supreme Court held that harassing conduct must be "severe" or "pervasive" enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive. Similarly, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the Supreme Court held that not all harassing conduct violates the law, emphasizing that the harassment must be because of sex (or race or other statutorily protected characteristic) to violate Title VII.
However, the "because of sex" element does not clarify which conduct gives rise to a sexual harassment claim. Rather, it is presumed when sexual advances are made by a heterosexual to a member of the opposite sex and, thus, is problematic when applied in same-sex harassment cases. Moreover, courts have deemed the most egregious conduct (i.e., rape and, in the rare instance, particularly offensive remarks in a particularly sensitive setting) to be sufficiently "severe," giving rise to a sexual harassment claim under Title VII. In contrast, crude comments, even repeated ones, lewd gestures, and unwanted touching have been deemed insufficiently severe, without more, to violate Title VII.
Employers must be particularly vigilant about harassment claims in the wake of the #MeToo and Black Lives Matter movements, which have brought gender and race claims to the forefront of the public's consciousness. Indeed, harassment claim filings in federal district courts, which had been decreasing in the years prior to #MeToo, have steadily creeped up since allegations of sexual misconduct against film mogul Harvey Weinstein first came to light in 2017, although this upward trend nose-dived in 2020, likely as a result of the novel coronavirus (COVID-19) outbreak.
Originally published by LexisNexis.
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