Attorneys: client companies becoming more proactive in addressing harassment

After the first full year since the start of the #MeToo movement, attorneys say that companies are becoming more wary of exposure and more proactive in addressing it as executives manage crises at an increasingly granular level to get ahead of public backlash and workplace legislation.

Ever since sexual misconduct allegations against entertainment mogul Harvey Weinstein broke into the news on Oct. 7, 2017, sexual harassment in the workplace has taken an unprecedented spotlight in the public eye. That attention is driving sweeping change in how companies manage their workforces.

"This movement has fundamentally changed the way I practice, and that's because we've been managing to the wrong risks," said Gina Roccanova of Meyers Nave Riback Silver & Wilson PLC. "What we failed to recognize, as with most social movements, is that the law is not the vanguard. It's bringing up the rear."

According to Lauren Leyden of Akin Gump Strauss Hauer & Feld LLP, permissibility of conduct is not different; the approach and motivation is.

"There is a legal shift, but it's not the biggest shift. It's the way these cases have taken hold and the damage they're seeming to do to employers at a much earlier stage. I haven't met an employer who thought this conduct was OK three years ago and now it's suddenly not," Leyden said.

"People were always worried about litigation exposure, but by the time these claims get to litigation in this current climate, it's almost too late," she added.

Legislatures in California and other states have responded to the #MeToo movement, imposing increased requirements for harassment training, outlawing nondisclosure requirements in sexual harassment lawsuits, and other shifts. Some bills, such as one banning mandatory arbitration of sexual harassment claims, were vetoed by Gov. Jerry Brown.

Even though that bill, AB 3080, did not survive Brown's scrutiny, attorneys say the use of mandatory arbitration in sexual harassment claims is less savory than ever. Some technology companies like Facebook Inc. and Lyft Inc. willingly surrendered it, even as the U.S. Supreme Court has girded the legal strength of arbitration this year.

#MeToo lies at the core of that change, for better or for worse, attorneys agree.

"One of the biggest impacts is that it has slowed, and perhaps reversed in limited circumstances, the trend of companies to insist on confidential mandatory arbitration of all employment disputes," said James M. Finberg of Altshuler Berzon LLP. "Google, Facebook and Uber and a number of large companies have carved sex harassment out of mandatory arbitration," said James M. Finberg of Altshuler Berzon LLP.

Finberg and other plaintiffs' attorneys have said that the carve-out for sexual harassment in arbitration is business-driven, and while it's a positive move, it does not go far enough.

"If that trend of carve-out gets expanded to include all harassment and discrimination claims, the pendulum could swing back to the point where the rights provided by civil rights laws can be vindicated in court through class pattern and practice cases," he added.

"As can be seen in the Silicon Valley -- where many major corporations still have forced arbitration agreements with their contract employees, which affects thousands of people," said Mike Arias of Arias Sanguinetti Wang & Torrijos LLP.

Jessica Stender of Equal Rights Advocates said the bills that passed represent a good start, and many of those vetoed will be reintroduced under Gov.-elect Gavin Newsom and the newly-elected Democratic supermajority.

"While the legislative changes obtained thus far are critical, there is still much work to be done and we are by no means finished," she said.

Jason A. Geller of Fisher & Phillips LLP said that his clients' concerns since #MeToo go beyond just sexual harassment, echoing an anticipation for expansion beyond sexual harassment.

"There's much more of a concern to be very prompt into looking into any kind of internal complaint of any harassment or discrimination, not just sexual," he said.

In this era, employers have displayed an elevated interest in early compliance. Employer-side lawyers say that many clients are improving their training and handbooks ahead of the legally mandated deadlines.

"There's certainly a feeling that we don't want that to be us, we can't afford that to be us. They conclude one of the best ways to get ahead is proper training," said Edson McClellan of Rutan & Tucker LLP.

McClellan, echoing that the shift is cultural as well as legal, said his clients' approach to training changed.

"I don't see companies complaining about it, I don't get these, 'Ugh we have to do that again' responses. It's more of a sense of we're doing this. This is the right thing. I don't get the feeling that there's a sense of irritation. This is something they are willing to do."

He and others said that training and awareness benefits companies in more ways than one. In trial, robust training shows a good-faith effort by the employer.

According to Wendy Lane of Greenberg Glusker Fields Claman & Machtinger LLP, employers have a quicker trigger for reaching out to counsel or external investigators when complaints do occur.

"Human resources and management are a little quicker to reach out to counsel at even the risk of harassment claims, because they realize it's an issue," she said.

Despite the proactivity, Geller said complaints came more frequently in the last year. The Equal Employment Opportunity Commission recently reported a 50 percent increase in sexual harassment lawsuits for fiscal year 2018.

Those cases' recoveries totaled just under $70 million, an increase from $47.5 million in 2017.

The report also showed increases in reasonable cause findings, successful conciliations, and hits on the sexual harassment section of the commission's website.

Attorneys said the report clearly indicated that government enforcement, and the outcomes, echoed the zeitgeist.

"This increased awareness has led to innovative legal strategies to address intersectional discrimination and harassment, including the use of trauma-informed practices when representing victims of sexual harassment, among others," Stender said.

"It has also resulted in an unprecedented amount of legislation at the state and federal level to address the intersecting forms of workplace harassment and discrimination and the gaps in existing law which allow the problem to persist," Stender said.

According to Roccanova and McClellan, despite the immediate strain on companies, the ultimate change might be positive. For one, it motivates employers to keep an eye out for conduct that is unacceptable, but not legally actionable.

"Even in these instances where the actual allegation is not substantiated or what is being alleged doesn't violate policy, doesn't mean you can wash your hands and walk away, it means something is wrong," Roccanova said.

"This #MeToo movement ... might lead to more women feeling like they can come forward and assert claims, or will all the focus on training cause a drop because it's better behavior? The goals of all this is less bad behavior and fewer claims," McClellan said.

Arias said he is confident that goal will be achieved, through litigation whenever necessary, and despite positive change, plaintiffs' attorneys must press further.

"Every trial attorney should recognize that even with greater media attention to these issues and with a new social and political reality in California, we cannot be complacent and believe that these positive factors alone will lead to success on these claims. Even though the times have changed, jurors' life experiences will not change overnight. Neither will those of the members of the bar, bench and corporate boardrooms who were brought up in a bygone era. It will take time and effort to re-educate and establish a new standard of equality and justice for all," he said.