It’s been five months since the #MeToo movement burst onto the scene. Since then, the headlines have been dominated with accusations of grossly inappropriate behavior by prominent politicians, entertainers, business people, and others. So it’s somewhat surprising that, according to acting EEOC Commissioner Victoria Lipnic (as reported in Law360 (subscription required)), the number of sexual harassment claims being filed with her agency hasn’t changed. Why is that?

One reason may be that employers are being more proactive. Those of us who do harassment prevention training are certainly doing more of it than in prior years. So perhaps (he said, trying to sound optimistic) employers are putting more emphasis on preventing harassment and those efforts are paying off.

Another explanation may be that employers are settling pre-litigation to avoid the devastating publicity that can accompany these claims, particularly with higher-profile defendants.

Also, many of the accusations that figure so prominently in the media involve conduct that occurred many years ago. Employees generally have no more than a year to bring these claims. So conduct occurring before then, no matter how offensive, will not be legally actionable.

Finally, it may be that the claims are working their way through the system. Before filing a lawsuit or a charge with a government agency, plaintiffs’ lawyers may be interviewing witnesses and lining up support for their clients’ claims. That process takes time.

Whatever the reason, employers shouldn’t let their guards down. They should continue to ensure that their harassment policies are legally compliant, that they appropriately investigate complaints of bad behavior, and that their managers are trained about their obligations in providing a harassment-free workplace. While there has not been a big upsurge in harassment claims yet, it only takes one to devastate your company.

The #MeToo movement has understandably made employers more concerned about sexual relations between coworkers. An office romance may seem consensual, but is it really? This is especially problematic when there’s a power differential – such as a supervisor-subordinate relationship.

So what can employers do to prevent coworker relations that they fear may end in a sexual harassment claim? Certainly, employers can establish rules and internal policies discouraging coworker relations. But, as recently affirmed by the Ninth Circuit in Perez v. City of Roseville, there are constitutional limits on what public employers, like State and municipal governments, can do if they discover a consensual office romance.

Coworkers sitting across from each other with heart, symbolizing office romanceIn Perez, the City of Roseville, California investigated police officers Janelle Perez and Shad Begley after Begley’s wife reported that Begley and Perez engaged in sexual conduct while on duty. The investigation revealed that the officers were involved in an extramarital affair, but the City could not prove that they engaged in sexual conduct while on duty. Begley and Perez were written up for violating department policies. A short time later, Perez was fired, purportedly for performance reasons unrelated to the affair. Perez sued, alleging that “her termination violated her constitutional right to privacy and intimate association because it was impermissibly based in part on disapproval of her private, off-duty sexual conduct.” The lower court granted summary judgment for the defendants and Perez appealed.

The Ninth Circuit reversed in part, finding triable issues of fact as to whether Perez was fired for engaging in constitutionally-protected private sexual conduct. The court said: “[T]he constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation.”

In a nutshell, Perez establishes that, at least within the Ninth Circuit (including California), a public employer cannot take adverse action on the basis of an employee’s private, off-duty sexual activity, unless the employer demonstrates that the conduct caused the employee’s job performance to suffer. This holding arguably extends to employees in the private sector too, who are subject to the same constitutional right to privacy and intimate association.

Takeaway: The #MeToo movement has led many employers to believe that all office romances are off-limits and constitute a fireable offense. Not so. At least within the Ninth Circuit, public employers cannot fire employees for private, off-duty sexual conduct that does not adversely impact job performance. Of course, employers can and must address non-consensual conduct and conduct that creates a sexually hostile work environment. But that does not give employers the right to intrude into relationships outside of work that do not directly impact the workplace.

If you have a questions about sexual harassment, office romance, or employee privacy rights, our employment attorneys are here to help.

I read an article yesterday about a writer accused of sexual harassment.  So what, you are probably thinking? While articles like that are commonplace these days, what infuriated me was that the individual had been investigated multiple times for sexual harassment related misconduct.  The alleged harassment occurred at numerous companies, with prominent HR departments, yet each time he was fired or left for a new job, his new employer had no idea about his past behavior.  And I feel partly to blame for that.

As an employment lawyer, we advise our clients that best practices with regard to references is to establish a policy where the company simply confirms dates of employment and job title(s) held.  We used to allow salary confirmation upon request of the departed employee, but that is no longer advised under California’s Fair Pay Act.  So, we have inadvertently created a system where alleged harassers (and other terminated employees) get to move on and become someone else’s (client’s) problem. The primary concerns in opting not to give a substantive reference is fear of a defamation lawsuit or tortious interference with a business opportunity claim under Labor Code section 1050.  There are many resources on the intricacies of these claims, so I won’t get into them here.

While there is no duty to provide a reference and saying nothing is still the most conservative course of action, I think some employers will want to be more progressive in the #metoo era and I’d like to give some guidelines on how not to sweep this under the proverbial rug.

  • California employers are protected by a qualified “common interests” privilege against defamation claims as a result of giving reference checks. So long as statements are based on credible evidence and are made without malice, employer references are given a special privilege that forms the basis of a defense against defamation.  California courts have regularly supported this employer privilege in the interest of public policy, which is now more prominent than ever.
  • If you have an existing policy on references, be consistent in following it, or change it to something you are comfortable with.
  • Designate one person to handle all references so the conduct and statements of individual managers don’t become a liability for the company.
  • If you opt to provide a substantive reference, the reference should not be misleading. Don’t give a glowing reference for an employee terminated for misconduct or there could be liability for fraud or misrepresentation, plus the potential for a wrongful termination suit from the alleged harasser.  The best bet is to be truthful, without providing too many unnecessary details.
  • Some examples of how to give a negative reference without disclosing details include: ineligible for rehire, investigated for policy violations or was the subject of complaints by coworkers.
  • While the fear (and fear of the expense) of being sued is enough to chill employers into keeping their mouths shut, and consequently perpetuating a cycle of harassment or other bad behavior, the reality is there are very few published cases on this in California, leading me to believe that while the risk is real, this isn’t likely to be a money-maker for the plaintiff’s bar.

Finally, while there is pending California legislation in the form of SB 820 that would prohibit confidentiality clauses in any sexual harassment settlement agreements, so far there are no added protections for employers providing substantive references.

The decision of how much, if any, information to provide, involves an individualized risk assessment, but I can see California’s public policy interest as a strong driving force in changing the current “no comment” practices of many employers.

I don’t know Aziz Ansari and I can’t purport to know what happened in his apartment on the night of the first date that has headlined the news this week.  But, after 17 years as a labor & employment attorney, with a concentration in counseling on more than 100 sexual harassment claims in the workplace, I thought I would add a few nuggets to the conversation.

The claims against Ansari invoke the stickiest of scenarios, though they did not occur in the workplace.  An anonymous complainant, a consensual sexual encounter, the allure of a suitor with “power”, regret, and poor communication…Translating these factors into a workplace investigation can cause some pitfalls for even the best HR departments.

  • A significant percentage of complainants want to remain anonymous, presumably for fear of retaliation. While employers should not guarantee that any aspect of the investigation will be kept confidential, employers should limit details on a need-to-know basis.
  • Confronting an alleged harasser when an employer can’t or chooses not to disclose the identity of the complainant or details of the complaint is really tough.  Accused employees want to be able to appropriately defend themselves and California requires a “fair, prompt and thorough” investigation.
  • Because employers have to balance the investigation with the need to maintain a harassment-free workplace, employers aren’t required to know with absolute certainty that harassment occurred in order to take disciplinary action. The legal standard is an objectively reasonable belief that misconduct occurred (after a fair and objective investigation, which I’ll get to in a moment).
  • While the standard for an adequate investigation includes notice of the claimed misconduct and a chance for the employee to respond, this standard was set before the ubiquity of texts, and sometimes I see some really blatant and incriminating texts which make it easier for an employer to take action.
  • Once action is taken, the type of response an employer needs to give to the complainant is another source of disagreement.  Complainants want details about all aspects of the investigation, including who said what.  Yet employers want to safeguard not only the complainant’s rights, but the privacy rights of the accused and witnesses. A typical response you may have seen is that the matter has been handled and appropriate action has been taken.  Employers aren’t required to give details and if too many details are given, an accused may claim defamation.
  • Finally, harassment policies need to have specific information on prohibited conduct, reporting and investigation procedures, and no-retaliation.  Consensual relationships between supervisors and staff they manage should be prohibited to avoid the potential for coercion claims.  I have seen many cases where a complainant contends they engaged in the sexual conduct consensually, but because they felt pressured to do so or it was “easier” than saying no. It’s best to remove the power/control element of a workplace relationship.

There are no easy answers here and every single complaint of harassment is unique.  But in the effort to support victims, employers should not forget the reasonableness standards set by our courts and the balancing acts that need to occur during the course of an investigation.