The #MeToo movement continues to make headlines across the globe, toppling more than 200 powerful U.S. company leaders in entertainment, media, sports and a variety of other industries.  According to EEOC reports, sexual harassment charges have increased by 14% and EEOC-filed lawsuits asserting harassment have increased by 50%.  Larger amounts of cash are being paid to settle harassment suits, and those amounts may be minor compared to the reputational damage of being tried in the court of public opinion.

Directors have long grappled with how to oversee company “culture” and employee behaviors.  Now many boards find themselves wedged between a rock and a hard place, as they struggle to balance the need for swift action when a complaint is made versus the need for appropriate due process rights for the accused.

Boards increasingly are expected to investigate stale and non-actionable claims and off-duty conduct.  They are also expected to treat wrongdoers swiftly and severely.  Employees and stockholders push for transparency in investigations, as boards temper the need for transparency with the risks of defamation, tort or other claims that may be brought by the accused, as well as personal privacy rights when dealing with controversial, off-duty conduct.

The potential unintended consequence of polarizing genders also must be monitored by the board.  Recent research found that two-thirds of male executives hesitate to hold one-on-one meetings with women in more junior positions for fear they could be misconstrued.  This behavior effectively deprives one gender of valuable mentorship and opportunities to interact with

On Sunday September 30, 2018, while many of us were busy setting our Fantasy Football lineups, outgoing Governor Jerry Brown signed a number of work-related bills arising in response to the #MeToo movement that will substantially alter employers’ exposure to liability for workplace harassment, prohibit many common practices used to reduce adverse publicity surrounding workplace harassment claims, and impose additional training and inclusion requirements.

SEXUAL HARASSMENT OMNIBUS BILL, SB 1300

The most far-reaching of the new laws is SB 1300, the Sexual Harassment Omnibus Bill, which amends the California Fair Employment and Housing Act (“FEHA”).  Under SB 1300, FEHA will now expressly affirm some harassment-related court decisions and disavow others, embedding into the statute the following legal concepts and ever-expanding scope:

• The plaintiff in a workplace harassment suit is only required to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do his or her job.  It is not necessary to show a tangible decline in productivity.
• A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile or offensive working environment.  (Here, SB 1300 expressly rejects a decision authored by #MeToo casualty Alex Kolinski, a former judge on the Ninth Circuit Court of Appeals, which provided that a one-time physical encounter was
  

Forty-five years after the law “for professional equality,” the wage gap between women and men persists. In order to overcome this, the law “for the freedom to choose one’s professional future” imposes new measures on companies. The French law “for the freedom to choose one’s professional future” was definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018); it was published in the Journal Officiel on 6 September 2018.

The overriding principle is that all employers must have as an objective the removal of the pay gap between women and men (new article L. 1142-7 of the Labor Code). Further, while there is no penalty for non-compliance with this principle in itself, certain provisions of the law are mandatory and subject to sanctions if not respected.

Of particular note are provisions that apply to companies with at least 50 employees:

• The employer must annually publish indicators relating to pay gaps and the actions implemented to remove them (the terms and methodology of this annual publication will be defined by decree) (new Article L. 1142-8 of the Labor Code). In the absence of publication, a financial penalty may be applied under conditions determined by decree (yet to be published).
• If the results obtained by the company are below the indicators defined by the decree, catching-up financial measures must be considered (Article L. 2242-1 of the Labor Code). If no agreement is reached, these
  

The French law “for the freedom to choose one’s professional future” definitively adopted on 1 August 2018 by the French Parliament and approved on 4 September by the Constitutional Council (Decision No. 2018-769 DC of 4 September 2018) was published in the Journal Officiel on 6 September 2018. The law strengthens the fight against sexual harassment and sexist behavior in companies.

Under the new law, by 1 January 2019 at the latest, certain employers will be required to take measures to combat sexual harassment and sexist behavior in the workplace:

• The obligation to appoint the following points of contact:

(i) A point of contact in companies with at least 250 employees, responsible for guiding, informing and supporting employees in the fight against sexual harassment and sexist behavior (new article L. 1153-5-1 of the French Labor Code). The objective is to enable victims of such acts to identify a contact person within the company.

(ii) A point of contact nominated by a company’s Social and Economic Committee (Comité social et économique) from among its members, regardless of the number of employees, for a period ending with the term of office of the elected members of the Committee (Article L. 2314-1 of the amended French Labor Code).

• The reinforcement of the obligation to post the civil and criminal consequences of sexual harassment and the contact details of the authorities and competent services in workplaces and on the premises where the hiring is done. The list of these services will
  

Responding in part to the #MeToo movement, state and local governments have begun expanding protections for those alleging discrimination and harassment in the workplace.  Last month, the Illinois General Assembly passed a series of amendments to the Illinois Human Rights Act (“the IHRA”) that may have a significant impact on employers if they are signed into law by Governor Bruce Rauner.

• House Bill 4572: Currently, the IHRA applies to employers who employ 15 or more employees within Illinois for at least 20 weeks per year.  HB 4572 would essentially cover all Illinois employers—any employer who employs one or more employee for at least 20 weeks per year.
• Senate Bill 20: SB 20 makes several changes to the procedures of the Illinois Department of Human Rights (“IDHR”) and the Human Rights Commission (“the Commission”). Among other things, SB 20 would:
  • Extend the charge-filing period from 180 days after an incident giving rise to a claim to 300 days after the incident;
  • Require the IDHR to notify all parties that the complainant may “opt out” of participating in the IDHR process within 60 days and commence a lawsuit in state court;
  • Change the make-up of the Commission from 13 part-time Commissioners to 7 full-time Commissioners, all of whom must either be licensed to practice law in Illinois or have relevant professional experience;
  • Create a temporary panel of 3 Commissioners to handle the backlog of requests for review; and
  • Require the publication of Commission decisions within 180 days.

On April 12, 2018, Governor Andrew Cuomo signed the New York state budget into law.  Beyond the dollars and cents associated with a typical budget bill, the legislation included new requirements for private and public employers to address sexual harassment in the workplace. While effective dates for the various measures are staggered over the next year, employers should start preparing now to comply with each provision:

• Effective immediately: The budget bill amended the New York State Human Rights Law to prohibit harassment against “non-employees” who provide services under a contract, including contractors, vendors, and consultants. If an employer knew or should have known that a protected “non-employee” was sexually harassed at its office or workplace, the employer may be liable if it does not take appropriate action.
• Effective July 9, 2018: Employers may include nondisclosure/confidentiality clauses in settlement or release agreements dealing with sexual harassment claims only if the complaining party requests such a clause. Additionally, settlement and release agreements must not contain mandatory arbitration clauses for the resolution of harassment claims.
• Effective October 9, 2018: All employers must have a written anti-sexual harassment prevention policy, and also must provide annual anti-harassment training.  The New York State Department of Labor (NYDOL) and the New York Division of Human Rights are drafting model policies, and employers must base their own policies and trainings on the state-drafted models. Employers must also provide a written copy of the policy to all employees annually.

Employers should act quickly to ensure they comply

This final installment of a six-part series on harassment investigations discusses how to close the investigation and steps to take after the investigation has been closed.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Close the Investigation

Once the investigation has concluded, it is essential to close the investigation with the complainant, each witness, and the accused.  It may also be prudent, in some circumstances, to follow-up with the entire workforce. All close-out meetings that are held should be documented. When closing the investigation with the complainant, and generally with each witness, here are the key points to tell each person:

• We are closing our investigation based on the information as we know it now. (This allows you to reopen if you learn more later.)
• The Company has a strong non-discrimination and non-harassment policy. (Consider providing or showing a copy of the policy.)
• The Company takes claims of discrimination and harassment seriously and follows up to stop it, if we can conclude that inappropriate conduct occurred.
• (If appropriate:) We have taken action on the complaint that we received, but we are not free to disclose any disciplinary action taken toward other employees. (It may be appropriate to tell the complainant more here, such as specific actions taken, in order to help reassure the complainant that reasonable steps have been taken to end the conduct and prevent its recurrence, and/or to inform the complainant of any limitations or
  

Before concluding a harassment investigation, the investigator should follow up with other possible sources of evidence, record and summarize the investigation, and reach a conclusion.  This fifth part of a six-part series discusses these final steps in the investigation process.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Follow Up With Other Possible Sources of Evidence

The investigator should consider whether any other sources of evidence exist that could aid in the investigation process and gather any such evidence. If the evidence is in the possession of either the complainant or the accused, the investigator should ask that the evidence be shared with him/her.

Some examples of physical evidence that may aid in the investigation process are:

• Time cards
• Calendars or diaries
• Telephone records
• Travel logs
• Expense reports
• Notes, letters, cards, and/or handwriting samples
• Emails, voice mails, and text messages
• Computer files and computer log-in/log-out information
• Internet usage
• Security/surveillance video
• Building entry/exit swipe information
• Recordings
• Photos
• Offensive material at issue (magazines, calendars, postings, etc.)
• Personal gifts
• Timing of the incident (e.g., just before or after a performance appraisal or just before or after the accused is rejected by the complainant or vice versa)
• Physical evidence, such as maps or relative locations of the parties or the areas in which the complainant and others work
• Prior performance evaluations
• Documents containing other complaints by the complainant, other complaints about the accused, prior investigations involving the same persons, recent adverse
  

In any investigation of a harassment complaint, the investigator must interview people and take notes.  This fourth part of a six-part series addresses techniques for note-taking and tips for assessing the credibility of witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Helpful Witness Interview Note-Taking Techniques

Make sure that your notes are legible and that they are clear on who said and did what and which part of the story is according to whom.

Start a new page for each interview.

At the top of the page, state the names of those present at an interview, the date, time and place of the interview.  Sign (or initial) and date the notes.

Although it is not necessary to write in complete sentences, the notes should be free from misspellings or grammatical errors so that the interviewer is not discredited in the course of litigation.

Take detailed notes, as close to verbatim as possible, during each interview.  If necessary, ask the interviewee to speak more slowly, so that your notes will be as thorough and accurate as possible.  Notes should provide enough information to understand, when reviewed later, what was asked and what information was provided.

Report matters asked of the interviewee as well as words spoken and facts provided by the interviewee.  Document any refusal to share information.

Do not include your interpretations, beliefs, assumptions, conclusions, etc., about the facts stated. Rather than guess at reasons or intentions,

You have received a complaint of harassment and interviewed the complainant.  In this third part of a six-part series, we discuss interviewing the accused and other witnesses.  As always, bear in mind that each harassment investigation is different and must be tailored to fit the particular circumstances.

Interviewing the Accused

At the beginning of the meeting, the investigator should:

• Explain that a complaint of sexual (racial, etc.) harassment has been brought against the accused; that the Company is conducting a prompt and thorough investigation to determine if inappropriate conduct has occurred; and that no conclusion has yet been reached.
• Identify your role as investigator.
• Tell the accused that the Company prohibits retaliation against a complainant, and anyone the accused suspects may have participated in any way in the investigation.
• Explain that the accused must provide a truthful account of what occurred, and identify all evidence and witnesses who may have relevant knowledge.
• Explain that efforts will be made to share information on a need-to-know basis only, but do not promise confidentiality.
• Explain the expected investigation procedure and the expected time frame involved.

During the Interview, the investigator should:

• Explain the details of the allegations against him/her (the investigator need not disclose the source of the information, but usually should disclose the allegations in enough detail so that the accused can respond). Ask about the alleged conduct/comments first, before identifying the complainant.
• Obtain the accused’s account of what occurred, as specifically as possible. (Depending on the circumstances, it