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Employment Law Alliance Survey Takes American Pulse on #MeToo and Workplace Harassment

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Date Published: 3/7/2018

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The Employment Law Alliance, the world’s largest and most geographically expansive network of labor, employment and immigration attorneys, has just released the results of its “#MeToo/Sexual Harassment in the Workplace Survey.” The poll was sent to the group’s U.S. employment lawyers during February, resulting in 382 responses from all 50 states, the District of Columbia and Puerto Rico. The data includes reflections on the workplace based on the lawyers’ interactions with major employers across the country and in nearly every industry.

The #MeToo movement is an important wake up call to corporate America. Company directors and executives need to understand that this isn’t a fad. These complaints suggest that a significant number of workplaces are simply not safe or respectful towards women. This poll provides a snapshot into today’s workplace, illuminating areas of concern and problems that our management-side lawyers are working hard to prevent and address. We employment lawyers are looking to take a leadership position on helping to foster a workplace environment that treats all employees with dignity and respect.

  • Stephen J. Hirschfeld, CEO and Founder of the Employment Law Alliance.

ELA’s “#MeToo/Sexual Harassment in the Workplace Survey” is the first in a three-part Employer Pulse survey series examining workplaces issues. Workplace bullying and gender pay equity are set to be explored in future reports.

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.

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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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Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel

Sanmina-SCI

Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.

Starwood

We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel