Hunton Employment & Labor Perspectives

In the wake of the #MeToo movement, the EEOC reconvened its task force on sexual harassment in June 2018.  Most recently, in a continued effort  to focus on leading harassment prevention efforts, the EEOC organized the “Industry Leaders Roundtable Discussion on Harassment Prevention.” On March 20, 2019, the EEOC held a roundtable discussion with various industry leaders to strategize regarding effective harassment prevention efforts and to “inform strategies for the next generation of issues flowing” from the EEOC’s task force reports and the #MeToo movement. Top tier representatives from national associations of homebuilders, manufacturers, human resources, retailers, hospitality providers and others attended and offered their perspectives.

The EEOC and roundtable contributors recognized that training and written anti-harassment policies and complaint procedures remain necessary to battle workplace harassment. However, the participants agreed that employers cannot merely “train away” harassment, and cookie-cutter, check-the-box training and policies are not enough. Rather, tailored training and policies that address the unique realities of a particular industry’s work environment are better assistance in the battle against workplace harassment.

The roundtable discussion concluded that to most effectively prevent workplace harassment employers must strive to have workplace cultures that are respectful, diverse, and inclusive. The participants noted that, in part, this requires recognition from C-suite executives that harassment can be a function of a lack of diversity and inclusion. James Banks, the General Counsel of the Society for Human Resources Manager stated, "the #MeToo movement has been a call to action for organizational leaders to assess their workplaces to ensure they have a healthy culture and live that culture in all they do." For change to occur, leaders need to consider an approach that institutes a top-down modeling of behavior and delivers a company-wide message that promotes diversity and inclusion, and conveys that harassment prevention benefits businesses and its employees.

Further evidence that the #MeToo movement has spurred additional societal advancements in harassment prevention is the growing trend in state laws to prohibit non-disclosure and settlement agreements that prevent employees from discussing, or that require a waiver of rights with respect to, what harassment they may have suffered. Advocates of such reform argue that silencing victims of harassment is against the public policy, and should render such contracts null and void. For instance, on March 18, 2019, New Jersey Governor Phil Murphy signed S121, which provides that any NDA in an employment contract or settlement agreement that has the purpose of concealing the details relating to claims of discrimination, retaliation or harassment shall be deemed against public policy and unenforceable against a current or former employee who is a party to the contract or settlement.

Based on the current climate, employers should be sure to review non-disclosure agreements, employment contracts, employee handbooks, and settlement or severance agreements to ensure they are in compliance with the law and/or its inevitable trends.