Leading up to DLA Piper's Global Technology Summit on October 9 – 10, 2018, Angela Agrusa, Partner, DLA Piper, spoke about the movement that is permeating the working world and beyond : #MeToo.
In an era where the court of public opinion has plainly stated "time's up" for the ways abuse allegations are managed, Agrusa discusses how organizations need to respond to harassment claims to protect the rights of the accuser and the accused, as well as the reputation of their own brands.
What does the litigation landscape look like around sexual harassment claims in the era of #MeToo?
#MeToo has had an important impact on people's actual and perceived safety and security in the workplace, as well as how organizations protect themselves and navigate potential lawsuits. The movement has been positive for both individuals and corporations in navigating the complexities of interpersonal workplace dynamics.
The guidelines for what is right and what is wrong has always been the same – I believe that people mostly know what is acceptable and unacceptable behavior.
However, determining the appropriate level of familiarity with coworkers can create confusion for some people. I think #MeToo is guiding people in eliminating that confusion by demanding that the lines be much clearer and maintained at every level in a corporation.
For that reason alone, the movement has been extremely important. It's causing all people within a business, at all levels, to be accountable for their own behavior – and to be accountable not only personally, but as a reflection of and representative of the company's brand.
As lines are becoming clearer as to what is and is not appropriate behavior, where do lawyers start when it comes to counselling clients?
From a legal perspective, I have never hesitated to tell clients when the situation demanded, "What your employee did was wrong. You need to change your behavior." #MeToo has armed lawyers tasked with having to give that message the force to say to clients, "When you disregard your legal advice, you face significant ramifications."
#MeToo has in some ways made our jobs are a little bit easier because our counsel can carry the full force of the movement behind us. On the other hand, our jobs have become more complicated. Since the Movement, not only are we having to navigate harassment claims differently, but people at varying levels within organizations are expressing fear of casual interactions within the workplace.
What are the ways lawyers have had to shift their approaches?
Here, the importance of the Constitution cannot be understated. Some of the most sacred principles of the Constitution are that people, if accused, are entitled to be presumed innocent until proven guilty, are entitled to challenge their accuser, cross-examine the claims, and be judged fairly. The accused has rights, that are embedded in our Constitution, and an accuser is obligated to prove an accusation.
Today, things are turning upside down. Now, when an employee comes forward with an accusation, #MeToo is telling us that we have to assume that the accusation is true. The Movement is telling us that we no longer have the luxury of waiting, to inform our investigation, in order to make that determination. Instead, we are asked to work backward. It is almost like an appellate standard where one is expected to challenge whether an already decided decision was accurate and supported by the evidence. While this requires a shift in thinking, an employer must still balance the interests of both an accuser and the accused. At a minimum, it requires a consciousness of our times in the way we interact with the accusers and the accused.
What has caused this reversal in approach? Was it simply public pressure, or something else?
I believe that the #MeToo movement has caused the shift: the fact that women all over are standing up and collectivizing to support one another's claims of having experienced abuse in the workplace.
Investigation has always been part of the process, but the Movement questions whether the way it has been historically done had protected the rights of the accused more than protecting the rights of the accuser. Because of the way in which those who have been accused of serial abuse are being called-out in the court of public opinion, the legal profession is being held accountable and being asked to guide those in management into a safer way of conducting business. In the past, many accusations were handled at what I would call the functional level. Today, when accusations arise, their resolution is no longer so isolated. Senior directors, owners and boards of directors are informed earlier as the impact of accusations of an unsafe business culture can affect the growth and perpetuation of a brand.
What are the implications for a brand if systemic abuse is exposed?
You can see it in the news any given week. Even when an accusation is made against a single individual, it reflects on the organization. Because of how it has played out in the media, the public now assumes the abuse has proceeded over a period of time and that it has never been publicized. And people become outraged if they believe there has been a complicity on the part of the company to hide the wrongdoing.
You see the blowback everywhere. Boycott this company. Boycott that brand. Boycott that television show. There is a desire to penalize a company for its perceived wrongdoing – to make the company feel the pain economically. A brand could lose advertisers, sponsors and consumer revenue. Today, the public understands the bottom line.
How have businesses been taking proactive steps to address this new era?
They have done so in several ways. First, I think every proven business has always known the risks associated with not supporting a cultural environment that is conducive to respect and fairness and is free from prejudice and bias. While the law has mandated mandatory education for certain categories of employees, today companies are reevaluating and expanding internal training. Second, brands are undergoing crisis training and putting systems in place for accusations to be handled correctly and with consistency − for instance, creating response teams and protocols so that when an accusation comes up, they can address it immediately. This process allows the company to reinforce its commitment to a safe and respectful workplace.
I also think it is important to have commitment from management to change the culture. Employees need to be able to come forward without fear of retaliation. That is something that is culturally driven from the top down.
What's next for the #MeToo movement? Are we ever going back to an era where accusations are resolved solely within an organization?
As I referenced a moment ago, one trend that I'm conflicted about is that several states are attempting to make it illegal to have private settlement agreements in the area of harassment.
As a lawyer, I understand that there are many reasons that clients would need and want to settle claims. Many times, it's not whether the accusations are true or false. But this eliminates the opportunity for companies to resolve claims on their own – which can be for the mutual benefit of both parties, often for the benefit of the accuser.