#MeToo Backlash Has Employers Telling Staff Not to Overcorrect

By Jacquie Lee

Some employers are worried that the #MeToo movement could hurt women down the line, so they are training their human resources teams to avert unwanted repercussions of the sexual harassment “great awakening.”

One of the trickiest tasks may be ensuring that employees don’t take sexual harassment prevention to an extreme by avoiding their co-workers altogether.

“Some men thought or said they’re worried ‘anything we say or do will get me in trouble, so I’ll avoid the problem,’” Jonathan Segal, a partner at Duane Morris LLP, said during a Jan. 17 sexual harassment webinar. “Avoidance is not a solution. It’s called discrimination.”

More than 3,000 people tuned into the webinar, which was aimed at HR professionals. In an online poll during the session, participants were asked, “Do you have any concerns that the ‘great awakening’ with regard to sexual harassment may have a backlash on opportunities for women?” Sixty percent said yes.

The spotlight on sexual harassment has been beneficial for employees for many reasons, Segal and Victoria A. Lipnic, acting chair of the Equal Employment Opportunity Commission, said during the presentation. If the movement creates an environment of avoidance, it could lead to discrimination claims and problems for women and minorities down the road.

Opportunities for advancement are often born of social activities like dinners, drinks, and mentorships, Segal told Bloomberg Law after the presentation. Lipnic was not available for further comment.

When women or minorities are excluded from those things because co-workers or managers fear offending them, it creates legal and ethical headaches for businesses and employees, Segal said.

Segal said he was not talking about being excluded from one dinner or outing. A pattern of avoidance will definitely be a problem, particularly if workers claim in lawsuits that they weren’t given jobs or promotions for discriminatory reasons.

“The charging party would argue ‘I’ve been excluded from opportunities all along, and the promotion is just the tip of the iceberg,’” he said.

Avoidance Not New

Excluding a colleague because he or she doesn’t look like you is nothing new, Rae Van, general counsel for the Center for Workplace Compliance, told Bloomberg Law.

“I think people are probably giving it renewed thought in the context of ‘me too,’ but frankly I think it’s an issue that has been and should continue to be addressed in training and in proactive preventative practices,” Van said.

There may be an uptick in discrimination claims as internal complaint procedures improve and employees become more comfortable coming forward with behavior they’re “unsure about that makes them feel badly or uncomfortable,” Van said.

Employees might not know whether an action is sufficient to constitute sexual harassment, but given the burgeoning environment empowering people to speak up, they might file a complaint anyway. Those claims that don’t fall under sexual harassment may ultimately be dismissed, she said.

Training To Avoid ‘Avoidance’

The easiest way for employees to feel at ease around their co-workers is simple, one HR professional says: focus on the work.

“The social side is important, but the social aspect isn’t really why you’re there,” Phyllis Hartman, founder of PGHR Consulting, told Bloomberg Law. When you do want to make small talk there are things that are usually safe topics, like family, kids, the weather, or your local sports team, Hartman said.

A person’s physical appearance and sex life are off the table, she said.

Hartman finds young male employees to be particularly worried about interacting with co-workers. Younger employees are more likely to be comfortable communicating digitally—like through texting or over email—and may have a harder time interacting face to face with their co-workers, Hartman said. She encourages companies to offer networking events without alcohol to give young employees a chance to practice business-friendly conversation.

“This Harvey Weinstein backlash has forced people to think long and hard about how they’re acting, and I hope that doesn’t end,” Hartman said. Good communication boils down to respect, she said. That way “everyone wins.”

To contact the reporter on this story: Jacquie Lee in Washington at jlee1@bloomberglaw.com

To contact the editor responsible for this story: Peggy Aulino at maulino@bloomberglaw.com

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