Me Too! — You Too?
The “me too” movement already feels like old news, but it is in full swing and its repercussions have not yet been completely felt.
What does this phenomenon mean for employment law, and for employees specifically?
One thing is certain—there is a new openness and sensitivity to the claims of women who have been assaulted, harassed, or treated unfairly in any way based on sex or gender. For publicly traded or otherwise high-profile companies, being accused of being insensitive or unresponsive to complaints of harassment is too great to risk to bear, and the company will often determine that conduct a woman found offensive is grounds for discipline up to and including termination. A person in one of those companies accused of inappropriate behavior will experience no sympathy from management and no protection from the law.
Here is the legal dilemma for employers: failure to take appropriate action to investigate and stop sexual harassment may lead to a lawsuit and an award of damages against the company. But disciplining an alleged harasser—even without solid proof that the harassment actually occurred or was sufficiently severe to constitute sexual harassment under current law—presents no serious legal threat to the company. That is because the accused has no effective legal protection against false accusations as far as employment is concerned. Since most employees are “at will,” meaning they can be fired at any time for any reason (as long as it’s not an illegal discriminatory reason), the employer does not need proof of misconduct in order to terminate. If the employer wants to side with the accuser for whatever reason, whether because of solid evidence or because of fear of appearing insensitive or politically incorrect, the accused employee has no protection and no legal recourse.
In the aftermath of decades and centuries of women not being believed, and being expected to put up with all kinds of harassment and denigration, it is high time that their complaints are starting to be taken seriously. While it may be inevitable that false or exaggerated claims of harassment and misconduct will be made, those are often sorted out in the workplace where there are no other witnesses, it is strictly “he said, she said,” and the accusation simply cannot be corroborated by other evidence. In those situations, an employer will be reluctant to simply accept the accuser’s word, in the face of a strong denial by the accused.
The more usual scenario, however, is where a man admits to making some comment, or taking some action like touching or looking, that he thought was completely innocent and acceptable, but that the woman found offensive or inappropriate. In those instances, the Human Resources manager will tend to take the side of the offended woman and accept the interpretation that the behavior was inappropriate. Depending on the specifics, the man may find himself transferred, demoted, or fired.
It is clear that sexual harassment in the workplace is taken more seriously now than ever before.
A woman who feels harassed or demeaned or discounted at work because of her sex should not hesitate to raise the issue with the appropriate supervisor or HR professional. She is protected under the law from retaliation for raising such concerns. If she complains about harassment and is retaliated against in any way for doing so, she has a good claim and should contact a lawyer. And men must realize that what was acceptable just a few years ago is no longer okay. If this hasn’t yet hit home with you, then you’re not paying attention. It can be a costly lesson to learn. If you find yourself on the wrong side of a harassment complaint, you will have no legal protection. You can only hope your employer will give you a chance to learn from your mistake. But don’t count on it.