#MeToo Enters Year Two: New Legal Obligations and How We Can Help

As the United States Senate voted today to end further debate and to advance, for a final vote, the nomination of Judge Brett M. Kavanaugh to the Supreme Court of the United States amid accusations of sexual misconduct, we are struck by the irony of the date on which these events have unfolded.  Today marks the one-year anniversary of the October 5, 2017 publication of the New York Times expose, an article in which RPJ Partner Nicole Page is referenced, that broke the story of Harvey Weinstein’s egregious sexual misconduct.

For many, the publication of the Times article marks the advent of the now ubiquitous #MeToo movement.  In the months that followed, men and women came forward to say they too had experienced sexual harassment and abuse.  Swiftly, we saw additional powerful figures toppled by allegations of sexual harassment and other misconduct, with numerous voices declaring, “Times Up,” and refusing to maintain the norms that permitted this type of behavior to continue for so long.

On the other side of this important debate, a growing population of those accused and their allies have voiced concerns over the shifting burdens of proof in the court of public opinion, where lives, jobs, families and futures are forever altered before there has been a legal determination on the accusers’ claims.  With social media, the echo of allegations can be far-reaching, hurtful and indelible.

Just yesterday, the United States Equal Employment Opportunity Commission (the “EEOC”) released its preliminary report on the EEOC’s 2017-2018 fiscal year.  Among other findings, the EEOC reports that the number of sexual harassment suits brought by the EEOC has increased by more than 50 percent in the 12-month period since October 1, 2017.  The EEOC also reports that, “[h]its on the sexual harassment page of the EEOC’s website more than doubled this past year, as many individuals and employers sought information to deal with workplace harassment.”

Our state and local governments have also taken note and recently passed new laws to address the people’s demand to do better.  Here are but a few examples:

• Just two business days from now, on October 9, 2018, employers in New York State must start to comply with the state’s new law requiring sexual harassment prevention training of employees – among the most sweeping laws of this sort in the nation.
• New York City also enacted in May 2018 its own mandatory sexual harassment prevention training law for employers, taking effect on April 1, 2019.
• Meanwhile, across the country in California, just last Sunday, Governor Jerry Brown signed into law a number of bills aiming to combat sexual harassment as well. Such laws expand the state’s sexual harassment prevention training requirements to cover additional categories of employers and non-supervisory employees, ban the use of nondisclosure agreements involving sexual harassment claims unless the purpose is to protect the identity of the complainant, and prolong the statute of limitations for victims seeking civil damages from an alleged sexual assault.
• New York State has also now banned the use of mandatory arbitration clauses to resolve claims of sexual harassment, as well as the use of nondisclosure agreements involving sexual harassment claims unless it is the preference of the complainant. By removing the cloak of secrecy, such measures are designed to take away mechanisms that for far too long have enabled serial sexual harassers to continue their misconduct.
• Perhaps most boldly, California has also become the first state in the country to require corporate boards of directors to include at least one woman and, eventually, up to a minimum of three depending on the size of the board. One rationale for the law is that having more women in power could help reduce sexual assault and harassment in the workplace.

As indicated by these new laws enacted in New York and California, men and women are raising their voices and being heard from coast to coast, and new legislation in response to the #MeToo movement is sweeping across the country.

At our law firm, we have been privileged to serve as advocates and legal representatives of the people and companies on the frontlines.  We speak on behalf of clients who were subjected to sexual harassment or other forms of unlawful discrimination in the workplace, as well as those who have been faced with damaging accusations of misconduct, as well as companies and organizations tasked with managing internal issues which today are far more complex and expose companies to risks that ten, five or even one year ago were unimagined.  We speak in courtrooms and before the EEOC and its state and local counterparts.  Throughout, we strive to achieve a just result and raise the bar of treatment in the workplace.

Our firm has provided sexual harassment prevention and anti-discrimination trainings to our clients for over two decades, and we take this opportunity to acknowledge our many clients that have valued workplace safety and comfort and conducted such trainings before mandated by the state.  To mark this historic year, and in light of many new state requirements regarding sexual harassment prevention training, changes in the anti-discrimination laws and, most importantly, our desire to continue to effect positive change where it is needed in the workplace, we are excited to announce that Reavis Page Jump LLP has collaborated with AltaClaro to produce a suite of new training materials to be used both during the live trainings that we offer and in a new interactive online training format.

As we close a week and a year that will go down in history as key moments in our country’s reckoning with sexual misconduct, we are proud to continue to lend our voices to advance this important and challenging process.

If you are interested in learning more about anti-discrimination, sexual harassment prevention and sensitivity training for your company, please contact Deena R. Merlen by email at dmerlen@rpjlaw.com or by calling our offices at 212-763-4100 (NY) or 203-653-4422 (CT).

This article and announcement was written by RPJ Partner Deena R. Merlen and Associate Jill Kahn Marshall.  It is intended only as a general discussion of these issues.  It is not considered to be legal advice or relied upon in regard to particular legal matters. If you seek assistance with a particular employment law or labor law matter, please contact Deena R. Merlen to discuss.

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