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The floodgate of sexual misconduct allegations opened last October by the #MeToo movement hasn’t brought a tsunami of workplace sexual harassment claims—at least not yet—but it has led to a surge of work for employment lawyers.
“The attorneys in our firm who handle this type of work are certainly busier,” said Edward M. Cherof, a principal at Jackson Lewis and co-leader of the firm’s workplace training practice group. Jackson Lewis hasn’t seen an immediate increase in claims, whether EEOC charges or litigation, “but we are spending more time with our clients” in preventive activities, Cherof told Bloomberg Law. “I think it’s the beginning of the new normal,” he said.
“I was struck by the fact that this really was something different,” Ann Marie Painter, a partner in the labor and employment practice at Perkins Coie, told Bloomberg Law. She said she realized “this had a dramatically different feel” when she started receiving an unusually high amount of calls from clients late last year.
“It’s kind of like the dam broke. A lot of people who felt uncomfortable coming forward now feel comfortable,” Cherof said. “I think it’s a trend that will continue.”
The #MeToo movement exploded when women worldwide took to social media to report their personal experiences with sexual harassment after allegations surfaced against film producer Harvey Weinstein. Since then, allegations of sexual harassment have been levied against several high-profile businessmen, politicians, and media figures.
Law firms that handle employment matters for employer clients report that their workload has grown. They’re not hiring extra lawyers—at least not yet—but they are reassigning some lawyers to tasks that address #MeToo issues.
Some law firms are establishing special work groups to deal with the fallout. Painter spearheaded Perkins Coie’s workforce harassment task force after noticing she was consulting her colleagues from other practice groups when handling her clients’ #MeToo concerns. “I realized we needed to come together in a more official capacity,” she said.
Perkins Coie’s task force consists of about 25 partners and associates from practice groups including white-collar investigations, business, and insurance. The white-collar lawyers help with investigations, the business lawyers help with corporate governance issues, and the insurance lawyers help with questions about insurance coverage for corporate liability in sexual harassment claims.
Labor and employment law firm Seyfarth Shaw established a special #MeToo working group, according to Jerry Maatman Jr., the chair of the firm’s class action defense group. “It’s like a SWAT team,” Maatman told Bloomberg Law March 15. “We’ve been very busy and had to redeploy a great amount of attorney talent to take care of the needs of our clients.”
“We have been assisting companies on their policies on handling sexual harassment and the protocol for what happens when a claim is reported and who should do what when,” Cherof said. “We are being asked much more frequently in this environment to take a look at the policies and revise them to be able to better handle the realities of today’s workplace,” he said. “It’s a healthy byproduct” of the #MeToo allegations.
“In addition to standard sexual harassment training,” Jackson Lewis has been doing training that looks at “the nuances,” Cherof said. One example is training bystanders on their responsibilities if they witness sexual harassment. Jackson Lewis trainers take managers through simulations based on a realistic workplace fact pattern, he said.
Seyfarth lawyers also have been busy providing training. The demand for the firm’s anti-harassment training has been “off the Richter scale this year,” Maatman said.
“There’s no question that there’s been an uptick” in requests for Jackson Lewis to conduct internal investigations for companies, Cherof said. ”Very often companies aren’t equipped to handle their own investigations,” especially if the subject is a top company official. Jackson Lewis does investigations for its clients as well as third-party investigations for non-clients. “Sometimes they want a completely independent review,” he said.
Perkins Coie has been training junior lawyers on its task force to do investigations. Some of the young associates have come from the firm’s commercial litigation group because that type of work often involves performing interviews, Painter said. She’s noticed that workers alleging harassment, many of whom are young, often seem more comfortable discussing their claims with younger lawyers. The interviews done by younger lawyers have tended to yield “more robust” results, Painter said.
The lawyers who spoke with Bloomberg Law said that so far, they haven’t seen a spike in claims filed with the Equal Employment Opportunity Commission or lawsuits filed in court. That doesn’t mean their clients are home free, however.
“We’re already seeing an uptick in informal claims,” Cherof said. He was referring to demand letters, which employees’ lawyers send to employers “to initiate a process to resolve the situation without an EEOC claim being filed.”
Maatman’s clients have faced the same thing. “I’ve seen a much greater increase in attorneys’ demand letters,” he said.
The switch from filing EEOC charges to sending a demand letter as “the first trigger” has quickened the pace of lawyers’ work, Maatman said. A lawyer would have several weeks to respond to the filing of an EEOC charge, but a demand letter requires an immediate response because of “the possibility of bad publicity hanging in the air,” he said. “It’s accelerated. It’s caused law firms to have to have people deal with these things in a rapid-response mode.”
The effects of the #MeToo movement have spilled over from the employment law arena to other practice areas. “What’s interesting to me is the expansion of labor and employment expertise needed in corporate acquisitions and due diligence reviews,” Maatman said. With the heightened awareness of sexual harassment liability, a potential buyer of a company now may consider whether it has a #MeToo problem, Maatman said. “It was rare that labor and employment lawyers would get involved with that before,” he said.
Painter predicts sexual harassment topics will remain high-profile for a while. “We’re seeing this in waves related to industries,” she said. “Not all industries have had their moment” yet.
The next step is “further developing the kind of corporate culture where a person feels confident bringing a complaint to HR without a fear of retaliation,” Christina Joy Grese, a special counsel at Duane Morris, told Bloomberg Law March 15.
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