Investigating claims of sexual harassment in the #MeToo era

Leslie W. Dippel

Director, Civil Litigation Division in the Travis County Attorney’s Office

A friend from college recently told me about an experience with her teenage daughter. They were walking together when a car drove by with 20-something-year-old men in it, and they called out to her daughter. Her daughter yelled back at them and told them, in colorful words complete with gestures, that their comments were not appreciated.
    My friend had mixed feelings. On one hand, she was not happy with her daughter’s language. On the other hand, she was proud of her for standing up for herself. My friend reflected on her own childhood. She, and a lot of women her age, felt conditioned to ignore these types of comments for the sake of keeping peace, so many women handled such situations with silence. Fast-forward to the present, and her daughter’s generation reacts to this behavior much differently. This generation is entering the workforce at a very interesting time when it comes to harassment.
    Harassment is a specific form of gender discrimination, and claims of harassment permeate every industry, profession, and workplace. Employers should be listening. There has been much-needed awareness about harassment raised in the workplace following the news stories of famous people, including Harvey Weinstein, Matt Lauer, Kevin Spacey, and others. The issue has garnered so much national attention that it has its own hashtag, #MeToo.
    Harassment had the EEOC’s attention even before recent media focus. In June 2016, Victoria Lipnic, Acting Chair of the EEOC, co-authored a report from the EEOC Select Task Force on the Study of Harassment in the Workplace. In that report, she notes that 25 percent of women surveyed stated they had experienced sexual harassment in the workplace. Interestingly, when asked if they experienced specific behaviors that would constitute sexual harassment, that number rose to 40 percent.1 Depending on how the question was asked, that number rose as high as 75 percent. Yet roughly three out of four individuals who have experienced harassment do not report it, even internally to a supervisor.2
    Equal Employment Opportunity Commission (EEOC) statistics are not yet completed for 2018. While EEOC charges asserting sexual harassment have held relatively steady at approximately 7,000 per year,3 it is easy to anticipate a sharp increase at the conclusion of this year. Employers have certainly paid attention to incidents in the news involving celebrities, and there has been an increase in workplace education and prevention programs. So, while the re-energized movement is still too new to have changed the law in this area, it is certainly responsible for a shift in public and employer perception, and it has caused many employers to review their own policies, practices, and cultures.
    Title VII of the Civil Rights Act of 1964 prohibits an employer from refusing to hire, terminate, or otherwise discriminate against an individual based on race, color, religion, sex, or national origin.4 Thirty years ago, the Supreme Court of the United States broadened the scope to include “sexual harassment so ‘severe or pervasive’ as to ‘alter the conditions of [the victim’s] employment and create an abusive working environment.’”5 Although the law does not prohibit teasing, offhand comments, or isolated incidents, conduct can be actionable when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as being fired or demoted). For example, harassment can include unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, including through electronic communications such as emails, texts, and social media posts. However, harassment does not have to be of a sexual nature to be actionable. It can also include offensive remarks about a person’s gender or offensive jokes.
    Two recent cases are worth noting:
    In Alamo Heights ISD v. Clark,6 the female plaintiff asserted that her female coworker made daily offensive comments to her, such as references to her breast size, “dimples” on her buttocks showing through her pants, and other vulgar comments about having sex. The San Antonio Court of Appeals found the harassment was gender-motivated because the majority of the comments referred to the plaintiff’s body parts. The Texas Supreme Court reversed, though, holding that the conduct, “although rude, crass, and hostile,” and “so offensive that it is easy to understand that a sense of decency initially inclines one to want to grant relief,” was not actionable because it was not motivated by the plaintiff’s gender.
    The Court outlined three methods to prove that harassing conduct is because of gender in a same-sex harassment case:
    1)    the harassing conduct is motivated by sexual conduct,
    2)    the harassing conduct is motivated by a general hostility to women (or men) in the workplace; or
    3)    direct comparative evidence that the alleged harasser treats men and women differently.
    In this same-sex harassment case, the Court reasoned that the plaintiff did not meet her burden because her coworker behaved similarly to men and women.
    In Davenport v. Edward D. Jones & Co.,7 a manager asked the plaintiff to date a client and send the client nude pictures of herself to obtain his business. The Fifth Circuit Court of Appeals held that a manager’s request for the plaintiff to engage in sexual conduct with a customer, with the promise of “big bonuses,” could form the basis of a quid pro quo harassment claim, but the plaintiff failed to prove she suffered an adverse employment action when she refused. She did not establish there were actual bonuses available that she did not receive.
    With this context, it is easy to see how interpretation can mean everything. The legal limits should not be an employer’s floor of appropriate behavior. While the law retains a fairly high burden to prove harassing conduct, employers may experience negative morale, negative publicity, retention issues, and a workforce that is distrustful their best interests are prioritized. This is in addition to time, expense, and other resources invested in defending a claim or lawsuit of this nature.
    The law rightly provides an affirmative defense to employers when 1) they establish they exercised reasonable care to prevent and promptly correct sexually harassing behavior, and 2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities.8 Accordingly, an employer should respond immediately when it receives a complaint or observes offending behavior. This is especially true now, when the use of social media can significantly increase the speed with which an incident can occur and be disclosed.

Best practices
Below are some best practices inspired, in part, by the EEOC Task Force Report that employers can use to set the tone of a harassment-free workplace:
    Adopt and practice a strong anti-harassment policy. Many employers have not yet taken this step, and it is imperative. It is the first step in preventing harassment. The policy should be written, formalized, and published to all employees. Employers should review it periodically for revision. At a minimum, it should prohibit discrimination and harassment, contain a complaint procedure with multiple options for reporting, a commitment to investigate and correct violations, and a prohibition against retaliation. If you would like a sample to get started, there’s one below as an attachment.
    Foster a harassment-free culture. Ensure your work environment is a culture where harassment is not tolerated. Have training meetings more often than upon initial hiring, hang signs, and send occasional emails that remind employees you expect a positive working environment free from harassment. In short, keep the communication active that you expect civility in the workplace.
    Educate and empower leadership. Employers are responsible for the action and non-action of the supervisors they employ. Invest in their training, and empower them with words and suggested actions for when they receive a report of harassment or observe potential harassing conduct. Employers cannot correct what they are not aware of, and it is front-line supervisors who will most likely be the information sources. They should have the responsibility and freedom to react and report up the chain of command for appropriate handling.
    Promptly investigate the conduct. Even if you do not have an official complaint but someone has observed offending conduct, promptly investigate and take appropriate corrective action. There are many thoughts on selecting the appropriate investigator, and all have merit. Whomever an employer chooses to conduct an investigation must be trained in how to do so promptly and thoroughly. In the event of an EEOC charge, the investigation will be Exhibit A.
    Prohibit retaliation. According to polls, a significant percentage of harassment complaints go unreported.9 The No. 1 concern cited is the fear of retaliation. Title VII prohibits retaliation against employees who complain or participate in an investigation of harassment. To prove retaliation, the employee must show:
    1)    he or she engaged in protected activity;
    2)    he or she suffered an adverse employment action; and
    3)    a causal connection exists between the protected activity and the adverse employment action.10
    Establishing an adverse employment action depends on whether the action would dissuade a reasonable employee from engaging in protected activity.11 This area is an extremely dangerous one for employers because the law clearly provides that termination or demotion is enough to establish an adverse employment action, while merely giving someone the “cold shoulder” is not—and there is a large landscape in between. Employers should investigate and correct claims of retaliation in the same manner as an underlying claim of harassment, document that they have checked in with the complainant on several occasions, and document his or her response.

Conclusion
It is all employees’ responsibility to ensure the workplace is free from harassment. That responsibility starts with how we treat one another, how supervisors react when they observe offending behavior, and how leadership responds when it is brought to their attention. My friend’s daughter and her entire generation, male and female, are not going to accept anything less, and employers need to be prepared to respond accordingly. If an employer thinks it will not arise in your workplace, ask around: #YouToo.

Endnotes

1  www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf; see pg. 8-9.

2  www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf; see pg. V.

3  www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm.

4  Faragher v. City of Boca Raton, 524 U.S. 775, 786 (1998).

5  Faragher, 524 U.S. at 786, quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

6   544 S.W.3d 755 (Tex. 2018).

7   891 F.3d 162, 165 (5th Cir. 2018).

8   Faragher, 524 U.S. 775 at 807 (1998).

9  https://abcnews.go.com/Politics/unwanted-sexual-advances-hollywood-weinstein-story-poll/story.

10  EEOC v. Emcare, Inc., 854 F.2d 678 (5th Cir. 2017).

11  McCullough v. Kirkman, 212 F. App’x 281 (5th Cir. 2006).