Jan 8 2018
Training to prevent sexual harassment in the workplace often takes a back seat to other priorities, employment lawyers say, but the explosion of harassment claims against celebrities, politicians and others has led many companies to take it off the back burner.
In fact, Connecticut employment lawyers say they have experienced a spike in calls recently from companies concerned about how to refresh sexual harassment policies and training as well as how to handle pending cases.
“Updating [a client’s sexual harassment] policy, doing the training, updating the employee handbook are always on the to-do list,” said Stuart Katz, an employment lawyer and chairman of the litigation group at Bridgeport law firm Cohen & Wolf. “In the past few months, employers have been pushing that to the front burner.”
Sexual harassment takes many forms and there are often shades of grey associated with it. From unwanted physical contact to the sharing of lewd photos or video content and even outright sexual assault, the unwelcome advances can have serious repercussions for both the victim and employer, including public exposure, reputational damage and financial costs.
Victims can also face retaliation while workplace productivity and morale can be undercut.
With the public images of all parties at stake, the onslaught of accountability and public censure of celebrities, politicos and others has taken on a life of its own since October — some 26 years after Anita Hill testified in 1991 to her harassment experience with then Supreme Court Justice nominee Clarence Thomas. (Hill is now heading an entertainment commission to combat sexual harassment.)
From film mogul Harvey Weinstein and journalists Matt Lauer and Charlie Rose to political figures like Roy Moore, the failed GOP Senate nominee in Alabama, publicity and punishment have come swiftly and seem to be sucking more businesses into the undercurrent every day. Time magazine’s recent naming of the #MeToo movement as its “Person of the Year” has also brought more attention to the issue.
One of the most high-profile claims of sexual harassment in a Connecticut workplace has involved Bristol sports broadcast giant ESPN, which was recently described in a Boston Globe story as having a “locker room” company culture.
ESPN was also named in a Connecticut Commission on Human Rights and Opportunities (CHRO) complaint filed by a former anchor who said she was sexually harassed while working at the company, the Globe reported.
Several local political leaders, including former Bristol Mayor Ken Cockayne and Hartford City Council President Thomas “TJ” Clarke II have also been named in sexual harassment complaints.
But for non-celebrity victims and their employers, the implications are just as dangerous and costly, so prevention is becoming a greater focus for many companies, lawyers say.
“It’s been the topic of conversation,” said Dan Schwartz, an employment lawyer at Hartford law firm Shipman & Goodwin, who has his own blog where he’s been tackling the issue. “It is at a level we haven’t seen in at least 10 to 15 years. There’s always been a steady stream [of inquiries] but we’re getting more calls from clients. It doesn’t mean we’re seeing more legal cases being filed. Lawsuits are a trailing indicator here.”
In fact, the number of sexual harassment complaints filed with the CHRO, which handles discrimination and other workplace complaints, is down from a high of 271 in 2001 to about 145 in 2017.
“There’s definitely more people who get discriminated against who never [file a complaint],” said Michelle Dumas Keuler, CHRO’s human rights attorney. “If you are afraid to report because of fear of what would happen at your job, you should know that retaliation is its own protected class. So there are protections built in because there is acknowledgement that retaliation can occur when people report discrimination.”
Types of guidance sought by employers cover a wide spectrum, according to Schwartz, Katz and Tanya A. Bovee, office managing principal in Jackson Lewis’ Hartford office.
Sexual harassment prevention and awareness training at companies typically takes place in a classroom setting, the lawyers said. Advice can range from how to handle unwanted touching to rude jokes and more, to when and how to report complaints.
“Many employers want more of an interactive, exciting training,” said Bovee. “Many are thinking about having training for their boards [of directors or trustees], which might be a direct response to what’s going on right now. There’s a greater emphasis in providing training to employees, not just management.”
Schwartz says his firm might advise a human resources department within a client’s firm on how to conduct an investigation. Or where circumstances warrant, attorneys might find an outside investigator who can investigate claims under the law firm’s direction, he said.
“We’ve been encouraging employers to tailor their training to educate employees on what behavior is acceptable in their specific workplace,” Schwartz said. “It can’t be a ‘check the box’ type of training. It has to provide real-life examples and scenarios to assist supervisors and employers.”
Shipman & Goodwin lawyers are incorporating new technologies like voting buttons on keypads that are used during in-person training, he added.
“People can express their views anonymously so you can get to the heart of where there might be confusion or agreement on things and you can see the votes in real-time,” Schwartz said. “The feedback is really useful. People want to be educated but are sometimes fearful of raising their hand and saying, ‘I don’t know.’ ”
The legal process
In Connecticut, by law, the process for filing a sexual harassment complaint starts by notifying CHRO within 300 days of the incident. The person also may file a complaint with the federal Equal Employment Opportunity commission within 300 days of the incident, CHRO’s Dumas Keuler said.
In either case, and even if the alleged victim files in both venues, the employer must be notified and administrative remedies must be exhausted before a case finds its way into the courts, she said.
CHRO is a less expensive option for the accuser because the state agency becomes a party to any credible complaint and acts as a prosecutor at public hearings it holds, said Dumas Keuler and Spencer Hill, another CHRO human rights attorney.
Most cases settle for money, often in the form of back pay, said Hill. If terminated, an accuser would likely settle for front pay or, if left unemployed, might settle for emotional distress damages. They can also settle for affirmative relief policy changes and training that CHRO would follow-up on, Hill said.
“The vast majority [of cases] settle and don’t result in a trial,” Hill said, noting that most cases take months to resolve. “Litigation is incredibly expensive for the employer. The cost is a lot of the reason the litigation is settled, because even if you feel you’re going to win, it’s going to cost a lot of money [to pay legal counsel].”
Kevin Greene, an attorney with Halloran and Sage of Hartford, also points out that it is important for employers to understand that even an accuser who recovers a “modest” damages award is entitled by law to recover attorney’s fees, which often can exceed the amount of the judgment.
Beyond the need to avoid claims, hefty costs and negative publicity, more employers today also want to avoid the toll on productivity or morale, he says.
“Employers genuinely want to know their legal obligations and want guidance on what they can do to maintain a proper and professional work environment,” said Greene. “Employers seem to recognize that a sexually charged and hostile environment is also not a positive environment for business growth.”
While employers grapple with sexual harassment issues in the workplace, victims also face challenges in today’s highly charged employment situations, according to one lawyer who represents them.
Nina T. Pirrotti, a partner with New Haven law firm Garrison, Levin-Epstein, Fitzgerald & Pirrotti, said she has seen her caseload double in the past year.
“My clients run the gamut from blue-collar workers to high-level professionals with significant degrees beyond college,” Pirrotti said. “It doesn’t seem any particular group has been left unscathed by this type of conduct. And the perpetrators run the gamut from chiefs of companies to professors to coworkers and people who know it’s happening and doing nothing to stop it.”
Despite the heightened public consciousness, Pirrotti says she still sees a lack of adequate training on the part of managers at accused companies, including a fair amount of retaliation.
The ways companies may retaliate include yelling at the accuser, questioning why the complaint has been filed, threatening termination, transferring the employee or ostracizing them in the workplace and “just freezing them out,” she said.
“It happens often and it’s hard enough for these women to summon up the courage and come forward — but then to be victimized again, it has potentially paralyzing effects,” Pirrotti said.
Victims risk a great deal by coming forward, she adds — reputation, career, livelihood and “becoming a pariah in your own workplace, being retaliated against and humiliated and not believed. The not believed part is the part that is the most devastating to my clients.”
Since complaints can be so damaging to all parties, Schwartz, Katz, Greene and Bovee say prevention is employers’ and employees’ best bet.
“The good news — what I am seeing,” says Bovee, “is many employers who just want to do the right thing.”