Towns and Cities: "YOU, TOO!" The Impact of the "ME, TOO! Movement" in Municipal Offices
In January 2017, the day after the president's inauguration, millions of women marched in the streets of America, and many hundreds of thousands of them wore pink hats. They marched to demand respect, to end gender discrimination generally, and specifically in the workplace. Despite the smiles, and energy of those marchers, they were angry! From that anger exploded a new determination to take action by speaking out for equal pay, for equal opportunity, and against sex discrimination and sexual harassment in the workplace. For New Hampshire municipal employers, the United States Constitution has an equal protection clause that can be triggered by gender discrimination, despite the lack of an equal rights amendment. Indeed, the New Hampshire state constitution promises equality from all its governmental entities ([Art.] 2 [Natural Rights].... Equality of rights under the law shall not be denied or abridged by this state on account of race, creed, color, sex or national origin.). For municipal employees seeking equality, more useful is the network of federal, state and municipal laws against gender/sex discrimination. The upshot for municipal leaders: pay closer attention, ask questions, and establish a regular routine of reminding your employees that they have legal (and moral) rights to be free of sexual harassment.
Since those marches, the "Me,Too" movement erupted from the publicity generated by revelations of the serial sexual assaults of movie mogul Harvey Weinstein. Women all over America related their own sexual harassment experiences - some for the first time, years and even decades after the events. These experiences live on and continue to bring upset and distress and real suffering. I remember listening to a 70-something employee of a grocery store, in my office on an age discrimination matter, tearing up as she recalled her produce manager some 30 years earlier slapping her on the butt when she bent over to pick up a fallen head of broccoli. I was the first person she ever told: not her husband, not her best friend, not her children. Why? She had not been told that she had a right to not be slapped on the butt.
The "Me, Too" movement has knocked from power the rich and famous: a U.S. Senator, a Senate candidate, several members of Congress, (and probably, soon a governor), along with television celebrities, news anchors, actors, musicians, artists, famous educators and many other previously "important" men. "Me, Too!" became the chant of women world-wide that they had been held back in their careers just because they were women. Their gender had provided all the permission needed by more powerful males, to grope, ogle, and assault. Their gender relegated them to accept a workplace that would place roadblocks between them and jobs and pay worthy of their talents.
It is axiomatic that a diverse workplace, where gender bias is minimized, results in better and more production (and in the corporate setting, a bigger bottom line). LGBT-supportive policies (equal treatment for lesbian, gay, bi-sexual, and transgender) similarly result in increased and measurable benefits. Surveys have proven over and over again that a workplace that respects the realities of its workers will thrive; and those looking backwards to the "good old days" set themselves up for disaster (and lawsuits).
Admit it: sexual harassment is underreported among your employees. You know it, but there's so much on your plate, that you are not about to go looking for violations, right? There is no upside to turning up last year's bad acts, right? If there's no report, there's no liability right? And, if she doesn't come forward, you don't have to do anything, right? Wrong. Dead wrong.
WHAT IS WORKPLACE SEXUAL HARASSMENT?
Sexual harassment is unwanted, unwelcomed sexual advances, requests for sexual favors, or other verbal or physical harassment of a sexual nature, which conduct is severe or pervasive. "What? Even jokes?" Yes. Even jokes. "What? Can't I even compliment her on her outfit?" It depends. "How will I know?" Here's a good rule: If your mother, spouse and daughter were watching you right now on a closed-circuit television, would you do it or say it - including with your gestures and tone of voice? No? Then don't do it or say it. Period. End of story.
Statistics should shock: Even before the news reports that Harvey Weinstein sexually harassed and assaulted a long list of actresses over decades, a summer 2017 Pew Research survey found that 42% of women said they had experienced some kind of gender discrimination (which includes sexual harassment) at work. 42%! Almost half. An October 2017 ABC/Washington Post survey found that 33% of all American women suffered sexual harassment at work, and that 85% of those victims remained angry about it. In the financial industry, 62% of all survey respondents said they witnessed or were the victims of sexual harassment, according to a WealthManagement.com survey. Warning: those who witness the sexual harassment of another also can have the same legal claims against the employer as those who were the direct target. That's a lot of liability, and there is no reason for you to assume that your workplace is any different.
Practice Pointer: You cannot continue to ignore Highway Department Charlie's crude comments when he comes into the office for his paycheck. A "that's just Charlie" response will create stress for your workers and liability for your taxpayers.
The "Me, too!" movement is transforming the workplace and has catapulted human resource directors and support staff into increased importance, for they exist at the fulcrum of past and future workforce conduct.
Practice Pointer: If your top official annually distributes two copies of your sexual harassment policy, one to remain with the employee, the other to be signed and dated and filed in the personnel file, you are sending a clear, provable message that sexual harassment will not be tolerated. The annual notice should include your municipality's specific steps for reporting the harassment, the anticipated steps after you receive a report and should provide your employees the contact information for the N.H. Commission for Human Rights and the Equal Employment Opportunity Commission, the deadlines for filing at each, how to count dates to meet the deadline, along with a clear statement that retaliation for reports will not be tolerated and is itself illegal and yields the same remedies as the underlying discrimination claims.
Wait! Won't that foment new charges of sexual harassment made to our human resources department? You should hope so! Why? Because then you can deal with and stop the behavior before it further disrupts your workplace and before liability occurs (and, if liability already has been triggered, then before the damages skyrocket). Harassers will be reminded annually of what will happen if they continue to harass. As importantly, your employees will be empowered to reject the harassment before they are further harmed and damages are incurred. Under New Hampshire law, both the employer and the harasser are jointly and severally liable for retaliation and actions deemed to interfere with an employee's filing charges of harassment. Make this clear: retaliate against anyone who reports harassment at the retaliator's own financial risk. On a cost/benefit analysis, legal and moral: stop the harassment before it starts, protect those who report harassment. Make it clear that sexual harassment is no joke.
Embrace the opportunities for the increased worker production and workplace satisfaction that all studies show results from clarity of policy. Make it clear, and make it clear often, that work is for work, that equality of opportunity is the spine of your workplace, and that whatever prejudices are carried into the workplace by your employees, cannot be manifested in conduct.
You need not be reminded that sexual harassment litigation against a municipality brings public attention and disruption of the workplace dynamics. (I will share that over my four decades of employee representation, the only front page newspaper articles my lawsuits have yielded --and I do not seek the publicity-- have been sexual harassment claims.) Also keep in mind that New Hampshire juries award large damages in employment discrimination cases, and that is why most municipal sexual harassment claims are settled. Depending on the deductible of a city or town's insurance policy (if there is an employment policy), the financial hit on the local government for bad management of sexual harassment can be significant, and the "Me,Too!" movement has not only empowered your employees, but the female jurors you will face at trial.
Before the "Me, Too!" movement, there was much more angst about the public nature of lawsuits. Not so much, today. In fact, a public announcement of an employee rejecting and reporting sexually harassing conduct along with a corresponding demand for compensation is the new normal.
RECENT CHANGES TO NON-DISCLOSURE/CONFIDENTIALITY PROVISIONS IN SEXUAL HARASSMENT SETTLEMENT AGREEMENTS
Publicity can encourage other victims to come forward, which is one reason why confidentiality provisions were routinely inserted into the sexual harassment settlement agreements negotiated by town counsel. But no longer! Why? Because the "Tax Cuts and Job Act of 2017" wiped out all employer deductions for payments paid to settle sexual harassment cases and the attorney fees incurred, when the settlement agreement carries a non-disclosure agreement (NDA's). What, you don't have to worry about deductions because municipalities don't pay income taxes? It's not always about the employer: your employees pay those taxes, and because the law was poorly written, it snags attorney fee deductions of employees whose counsel fees are awardable in discrimination cases, and are thus often included in settlement agreements Thus, the employee- attorney fee deductions that had enjoyed an "above-the-line deduction status" in 2004, have also been zapped by the 2017 tax act, so no mindful employee will agree to non-disclosure provisions in her settlement agreement (whether or not they are enforceable in light of New Hampshire's Right To Know statute, RSA 91A) until or unless the new tax law is amended or the IRS issues a guidance limiting the penalty to the employers).
What about non-disparagement paragraphs in settlement agreements? If they muzzle an employee's truthful statements about the sexual harassment, the tax law will be triggered. What if, for example, during a layoff, you provide a departing employee with a severance payment along with a simple form severance agreement with a universal release that contains a non-disclosure provision? Unless it specifically exempts sexual harassment-related claims from the release: the employee seeking to deduct any attorney fees that she incurred as the result of her layoff would be well-advised to require an amended severance agreement.
SEXUAL HARASSMENT IS LIFE-CHANGING FOR THE VICTIM
I know. I get the employee calls and have gotten these calls for over four decades. They are disturbingly similar, despite the passage of time, except that now I get calls much earlier, and mostly while the victims are still employed. Women are still asked to sleep with their bosses; they continue to slink away from a boss's "lean-in" at the office copier, and from his hands on her shoulders as he towers above her chair, where she sits, frozen, at her computer. Women continue to attend business meetings and hear corridor conversations replete with sexist comments. BUT NOW, they are less hesitant to reject the harassment, less hesitant to report it and less hesitant to demand that it end. And that is good, for which one of you municipal leaders dreamed of protecting sexual harassers as a career choice? The one constant over my decades advocating for workplace equality is the penchant of too many supervisors to underestimate the importance and impact of sexual harassment; and an almost knee-jerk response to minimize the conduct, implying the victim is overreacting:
"He said he didn't touch her; he didn't say anything. He just looked at her. How can that be sexual harassment?"
Well, ask the former town administrator of Grafton, Massachusetts after the First Circuit Court of Appeals ruled that staring (a/k/a "leering") at a woman's chest can constitute actionable sexual harassment. "But, later, the town ultimately won the case at trial!" Yes, after years of litigation and $400,000 in attorney fees.
Nancy Richards-Stower was inducted into the College of Labor and Employment Law Attorneys in 2003, earlier having served as member and then chair of the N.H. Commission for Human Rights 1979-1985. She has operated her solo employee civil rights law firm in Merrimack, New Hampshire since 1988, and is a member of the bars of New Hampshire, Massachusetts and Virginia. She is the inventor and owner of the on-line settlement service, Trytosettle.com®.