The Post-Harvey World, What Will It Look Like?

Enough about new laws. Let’s talk about some old news. 

This week, a jury put an exclamation point after #MeToo by convicting Harvey Weinstein in his first criminal trial. Don’t worry Harvey, the first one’s always the hardest. Let’s just hope the guards at Rikers stay awake long enough for this one to make it to his sentencing.  And while the movie mogul will go to prison for his crimes, and his civil woes are likely already behind him with a $25 million settlement of sexual harassment claims with his former employees, the question remains whether the movement, which was jump-started by Weinstein’s public outing in October 2017, will now start to fade to black or will there be a sequel. 

Last month, the EEOC reported that 2019 saw a reduction in sexual harassment charges. And while by October 2018, #MeToo had been used 19 million times, roughly 55,000 tweets a day, it’s now ranked only 20th among high performing hashtags (for whatever that’s worth). The Temin Index, which measures harassment allegations against high profile men, had reached a high of 143 a month in October 2018, but is now down to a trickle of about 12 a month. At the same time, SHRM’s 2020 Valentine’s Day survey reported that 54% of American workers have had a crush on a co-worker. #ProbablyNotOnUs. Twenty-seven percent say they dated someone at work and 27% of them report that it was their boss or someone higher up, proving that workplace policies will never stand in the way of true love or just sex. Ask the McDonald’s CEO who, in November, lost his $15 million a year job due to a consensual relationship that violated company policy. Actually, just ask him if it was worth it.

Some unintended consequences of the movement though have also likely disadvantaged women in the workplace. A 2019 Harvard Business Review survey found that 19% of men said they are reluctant to hire attractive women, 21% admit they’re unlikely to hire women for jobs that require close interpersonal contact with men (such as traveling), and 27% claim they won’t have 1:1 meetings with women, which no doubt hinders mentorship and advancement opportunities. 

Through the lens of our artistic eyes, we view the changes that followed Anita Hill’s 1991 testimony about Clarence Thomas as the Prequel to #MeToo and fully anticipate a Sequel. We’ll take suggestions on the name. All we’ve got so far is #MeToo-II or #MeToo2, which is about all the creativity you’re gonna get out of us.

Here are some previews of coming attractions (please silence your cell phones and pass the popcorn). Last week, a former big-city mayor stood on a stage in front of millions and was asked if he would release women from non-disclosure provisions in settlement agreements resolving gender bias claims by employees. While he should have shot back, “I would do you it in a second,” rumor has it he froze and stated that the agreements were consensual and those who signed them are entitled to privacy. And he is right. There can be two sides to the story and not everyone who brings a harassment claim wants the other side to be publicly disclosed. New York and New Jersey already have legislated prohibitions on non-disclosure provisions, but the public rebuke may lead to more demands to release employees from existing agreements. Interestingly, last week, it became public that Placido and the union representing opera performers had worked out a deal in which he would pay a $500,000 “fine” to the union and it would make its investigation into his behavior confidential. Someone sang to the press and scuttled the deal. Our advice: don’t run for President or become an opera star and this won’t happen to you. Oh and coincidentally on February 25th, a certain company that happens to have the same name as the presidential candidate, announced a new mandatory bystander training program for all employees. BTW–We’ve included bystander training in our sexual harassment program for the last two years. Glad to see it’s finally catching on.

Two weeks ago, the New Jersey Division on Civil Rights (“DCR”) announced new recommendations for preventing sexual harassment. On the same day, Governor Murphy coincidently unveiled a proposed overhaul of the New Jersey Law Against Discrimination (“LAD”). See where this is going? The proposed changes include clearer definitions of “severe” and “pervasive,” currently the two forms of hostile work environment sexual harassment. That’s actually good news. Last year, NYS amended its Human Rights Law to eliminate the severe and pervasive standard altogether, which we are confident will lead to pure chaos in sexual harassment cases in NYS. In NJ, the proposed LAD revisions will expand the statute of limitations from 2 to 3 years, require all employers to implement anti-harassment policies and complaint procedures and, like NYS, mandatory sexual harassment training based on a DCR model training program. The draft legislation would also add domestic workers and unpaid interns to those protected under LAD. The most dramatic and troubling change though would require employers with 50+ employees to annually report to the DCR the number of internal discrimination, harassment and retaliation claims it receives. Oh boy!

Efforts at radical transparency may be the lasting legacy of #MeToo. In January, Cisco held an all-hands meeting in which the head of HR revealed the number of employee complaints it had received during the year and described the details of some, including instances of unwanted touching and use of the N-word. The presentation also described the measures taken in response to some of the complaints. Cisco has also revealed that following this corporate catharsis, complaints increased. Maybe that’s better than getting sued, but we’re not yet on board with radical transparency. 

Stay tuned for more on #MeToo2 streaming on KH Alerts.

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