By Lacy Heiskell
Sexual harassment and sexual misconduct are not new problems. Thousands of men and women across the globe have faced and been impacted by it. However, a light has recently shined on the magnitude of the problem: the #MeToo movement. Often described as a movement against sexual assault and sexual harassment, #MeToo has trended nationwide following reports in 2017 of Harvey Weinstein’s alleged history of sexual harassment and misconduct. The movement has maintained momentum through the stories of sexual harassment and abuse from thousands of victims/survivors who have come forward since the story about Weinstein broke. Inherent within the #MeToo movement are discussions on how employers have treated reports of sexual harassment in the past and what changes ought to be made to prevent and remedy such harassment in future.
In the past, employers subjected employees to arbitration agreements when claims of sexual harassment in the workplace occurred. These arbitrations were generally subject to confidentiality agreements. However, this practice has come under fire in the wake of #MeToo. Many argue that compulsion of such agreements has the practical effect of shielding the company, as well as the alleged sexual harasser, from public scrutiny. In response to such criticism, many private companies, such as Google, Microsoft, and Uber, decided to opt out of forcing their employees to resolve sexual harassments claims in private arbitration altogether. Additionally, some states, including New York and California, enacted laws that prohibit employers from including confidentiality clauses in sexual harassment claims. S.B. S7507C, 2017-2018 Leg., Legis. Sess. (N.Y. 2018); S.B. 820, 2017-2018 S. Assemb., Reg. Sess. (Cal. 2018).
Since the rise of #MeToo, many companies have implemented other policy changes to prevent sexual harassment claims from occurring, such as mandating increased and improved training programs. Businesses are now approaching human resource consultants three times more often than they used to. Sexual harassment training varies from on-site sessions, webinars, and other formats that provide for continued education and communication, including the use of social media apps.
The federal government is also responding to sexual harassment claims in the workplace. A new section of the Internal Revenue Code would prohibit employers from deducting “any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or attorney’s fees related to such.” 26 U.S.C. § 162(q) (2017). In effect, this forces employers to choose between foregoing the confidentiality agreement—and thereby risk exposing information about their business and the alleged preparator to the public eye—or to maintain the confidentiality clause and pay a tax.
In sum, the #MeToo movement has brought serious attention to important issues in the employment sector. Progress has been made, but the ways in which employers treat sexual harassment and sexual misconduct claims will necessarily need to continue evolving. The above policy changes reflect just some of the initiatives taken in response to such sexual harassment claims. These ongoing policy changes reflect that employers ought to stay informed on changes to law and various other suggestions to company policies in order to protect their employees as well as their businesses.