Employment Law Alliance Releases Results of #MeToo Survey

#metooThe Employment Law Alliance recently conducted a survey gaging the effect of the #MeToo Movement and Sexual Harassment in the Workplace. As part of the Employment Law Alliance, Young Conaway was one of 382 firms from all 50 states, the District of Columbia, and Puerto Rico who all helped to contribute information regarding these topics. Their survey yielded the following results:

Section I: Forms of and Contributors to Workplace Harassment

Words Hurt: Most Common Type of Sexual Misconduct in the Workplace

Using a scale of 1-10 (high), 43 percent of respondents rated “Language, Jokes and Teasing” an eight or a nine, making it the most prevalent type of workplace sexual misconduct employers are facing today. It was followed by “Comments about Looks, Dress or Physical Appearance” and “Flirting and Sexual Advances.”

Email and Texts Outpace Face-to-Face Harassment

“Emails and texts” were listed by ELA members as the most-common method employees use in perpetrating sexual harassment.

Alcohol and the Workplace is a Problematic Combination

70 percent responded that alcohol use among employees has played a part in fostering harassment.

Section II: Employer Training and Prevention Tools and Effectiveness

In-House HR Competency to Conduct Investigations is a Concern

When asked how competent they feel in-house human resources professionals are in conducting internal investigations involving misconduct complaints, only 14 percent said “Very Competent,” while the vast majority, 81 percent, said only “Somewhat Competent.”

Neutral Third Party Investigators Strongly Recommended

By one of the widest margins in the poll, 91 percent of respondents noted that when high level executives are accused of harassment, outside investigators instead of in-house HR professionals should be utilized.

In-Person Beats Online Training

96 percent of ELA attorneys throughout the country are convinced that live classroom harassment prevention training is more effective and impactful. This finding is consistent with the U.S. Equal Employment Opportunity Commission’s latest Enforcement Guidelines which state that online training is generally ineffective at preventing workplace harassment.

Section III: The #MeToo Movement

A Real Concern that Companies aren’t taking Sexual Harassment Seriously Enough

When asked if employers are taking sexual harassment training, prevention and response “Seriously Enough,” 46 percent of ELA respondents indicated that they are not.

Harassment Claims Rarely Fabricated

Only 6.5 percent of ELA respondents said that either “More Often Than Not” (6%) or “Most of the Time” (0.5%) complaints of harassment were fabricated.

A Rush to Judgment, Pressure to Publicize When Investigating Harassment Complaints

More than 70 percent of ELA respondents indicated that clients have concerns that there is a “rush to judgment” when harassment complaints are made.

More than half (51%) indicated that corporate clients are feeling either “Great Pressure” (6%) or “Some Pressure” (45%) to publicize results and disciplinary actions taken following a misconduct investigation.

Bracing for the #MeToo Backlash

A majority of ELA respondents, 57 percent, expressed that they are, either “Slightly Concerned” (44%) or “Very Concerned” (13%) that the #MeToo movement will create a backlash against women being promoted or hired.

Section IV: Office Romance and Fraternization

Office Romance Headaches

When asked how frequently their employer clients “have experienced complaints resulting from office romances,” more than 60 percent indicated that it was either somewhat or very frequent.

Non-Fraternization Policies: Only Somewhat Common, Not Widely Recommended

Only 8 percent of ELA survey respondents indicated that “more than 75 percent of their clients” have enacted non-fraternization policies. And, 64 percent of respondents answered “No” when asked if they recommend employers adopt such policies.

The “Pence Rule”; Refusing to Travel/Dine/Meet Alone with Opposite Sex

23 percent of ELA respondents indicated that it was “Somewhat Common” for managers to refuse to travel/dine/meet alone behind closed doors with colleagues of the opposite sex. This finding is significant given the concerns raised that women will face a backlash in the workplace.

About The Employment Law Alliance:
The Employment Law Alliance is the world’s leading network of labor, employment and immigration lawyers offering innovative client solutions, thought leadership and advocacy for employers across the globe. With specialists in more than 100 countries, all 50 states and each Canadian province, the ELA provides multi-state and multi-national companies with seamless and cost-effective services worldwide.

# # #

Some Meaningful Comments Expressed by Respondents to the Survey

Words Hurt: Most Common Type of Sexual Misconduct in the Workplace

The gulf in perception and impact that used to exist between face-to-face and in person interactions has virtually evaporated, especially as we walk through life glued to our electronic devices. In the workplace, some still naively assume that by harassing through emails, chats and social media activity, there is a higher bar or greater overall tolerance for harassment, or that one can hide easier. The message employees need to get is that this assumption is 100 percent wrong.

Alcohol and the Workplace is a Problematic Combination

Many companies stopped serving alcohol at holiday parties this year.

Alcohol can be a very big problem, and, of late, has been part of the tech industry’s culture/maturity struggles.

In-House HR Competency to Conduct Investigations is a Concern

More sophisticated clients are very competent, but the smaller employers are not competent.

No HR Manager entered their profession with the intention of becoming an investigator.

Most HR departments can handle routine complaints but are not well equipped for more serious complaints or complaints against senior executives.

Outside Counsel Strongly Recommended

Outside investigators ensure that zero conflicts exist and that HR managers pressed to investigate do not feel pressure to excuse or minimize bad behavior by valuable/powerful employees and that accusers cannot cite bias. In addition, something that companies often overlook is that employment of outside counsel as investigators creates privilege, ensuring that investigations remain private affairs.

Even the best internal HR investigator will not be perceived as truly neutral given the relative power of the accused.

In-Person Beats Online Training

There are simply too many distractions in modern life to ensure that online trainings are being given the attention they deserve. Even one distracted manager who then acts on bad information and engages in harassment is one too many and far costlier than opting for an in-person, interactive training with comprehension tests.

The research suggests that live classroom training is significantly more effective.

Corporate Impact of #MeToo is Limited to Date

We have seen an increase in concern and a desire for additional training from clients, but not a “dramatic” increase in complaints.

Employers of all types are all looking over their shoulders, wondering when the wave moves from Hollywood to Main Street.

A Real Concern that Sexual Harassment isn’t Taken Seriously Enough at Workplaces

It depends on the client. Some take it very seriously, but the willingness to conduct manager training still seems to be spotty with many.

It’s taken seriously; but, more work on culture, follow up and modern training is needed.

A Rush to Judgment, Pressure to Publicize When Investigating Harassment Complaints

There is a herd mentality, and when there’s as much media attention attached to these complaints as there is now, people tend to think there’s more validity to them than when there’s less of a press spotlight.

#MeToo is flipping the switch to guilty until proven innocent.

The constant drumbeat of the media with respect to #MeToo stories, of all variety, has put great pressure on companies to be more transparent with internal misconduct investigations. And, while sunshine can be the best antiseptic, disclosure creates privacy concerns and can fuel runaway and damaging situations – both for the accuser and the accused.

There is always pressure from the accuser to disclose information. We have seen no change since the #MeToo movement, though.

Bracing for the #MeToo Backlash

The #MeToo movement is encouraging women who have or believe they have been subjected to unwanted conduct of a sexual nature to speak up. #MeToo will help control this type of conduct when men realize they will not get away with it.

The #MeToo movement was great for bringing awareness. However, there is concern about the blame-now and fact-find later approach. It may become more difficult for women to get hired, taken on business trips or be given other opportunities because men are afraid that they may be accused of wrongdoing.

Office Romance Headaches

Sometimes a workplace romance results in a harassment claim, sometimes in a favoritism claim, and occasionally, in disruption from an angry spouse.

Non-Fraternization Policies: Only Somewhat Common, Not Widely Recommended

Typically, these policies focus primarily on manager/subordinate relationships, but we expect more enforcement with respect to coworker relationships in the future.

In general, and excepting the more stringent requirements of a supervisor/direct report dynamic, non-fraternization policies tend to force conduct underground, where it can create more problems for an employer.

Refusing to Travel/Dine/Meet Alone with Opposite Sex

The publicity around Vice President Mike Pence’s “rule” that he will not dine with a member of the opposite sex without his wife being present combined with heightened sensitivity and awareness fueled by #MeToo has driven a marked increase in hesitancy, especially by men, to be alone with someone else in any situation that could be misconstrued. Ultimately, this may hamper the advancement of women in the workplace and overall productivity.

This is not common yet, but I expect that it will become common.

While rare now, I am hearing that more managers, especially those in senior leadership positions and male, are making these statements.

The current climate will likely increase concern about harassment allegations and will prompt more employees to avoid being in a situation that could raise an allegation.

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