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March 26, 2019 Feature

In the Wake of #MeToo: How to Handle and Prevent Claims of Sexual Harassment in the Workplace

By Anthony Kuchulis

Looking back on the last year of the #MeToo movement, many things have changed for the better, but some things have not. Recent studies by the Society for Human Resource Management (SHRM) and articles in Bloomberg News and elsewhere highlight that one-third of executives and one-fourth of supervisors report changing behavior that could be perceived as sexual harassment. See Gillian Tan & Katia Porzecanski, Wall Street Rule for the #MeToo Era: Avoid Women at All Cost, Bloomberg News, Dec. 3, 2018,; Kathy Gurchiek, One Year After #MeToo and ‘Weinstein Effect’: What’s Changed?, SHRM, Oct. 4, 2018,

But when pressed, some leaders report concerning trends of employees changing behavior to avoid contact with the opposite sex altogether, from male executives declining to mentor female rising stars, to men not booking airline flight seats with women, to men not having one-on-one meetings with women. As employment attorney Stephen Zweig put it, “[i]f men avoid working or traveling with women alone, or stop mentoring women for fear of being accused of sexual harassment, those men are going to back out of a sexual harassment complaint and right into a sex discrimination complaint.” Tan & Porzecanski, supra. I agree.

These revelations acknowledge the type of pushback and complications every great movement faces. We cannot assume that because we are now discussing sexual harassment issues more openly than ever, everyone will draw the right conclusions and take the necessary steps to eliminate bias altogether. Over the last year, I have performed dozens of sexual harassment trainings and an equal number of “train the trainer” events. Based on my experiences with many workplaces, I know that change must be slow, methodical, and intentional to be truly transformative. We can achieve this positive change together, both by monitoring our own behavior and by looking out for others.

In truth, even the best-run businesses retain the echoes of outdated and ineffective sexual harassment prevention strategies, putting well-intentioned businesses and executives at risk of significant exposure. Companies that believe they are protected from liability because they have legal policies forbidding sexual harassment and they conduct occasional “check the box” trainings must be reminded that many of the companies affected by the #MeToo movement also had policies and traditional trainings aimed at preventing harassment. Below, however, are a few practical steps companies can take to proactively change, grow, and improve workplace culture.

Train Your Leaders

Recent studies and academic reports support what many of us already knew: lecturing people not to harass and developing policies without action will not change hearts and minds. The most effective path to creating a welcoming and healthy work environment is to have a well-informed executive and management team that leads by example. Leader trainings should be longer than the usual 30-minute, “check the box” agenda item at the yearly retreat. Trainings and discussions should be led by an attorney who specializes in this area of law and should include a workshop that provides real-life examples as well as opportunities for the team to work together and talk through potential responses.

Executives and supervisors should be instructed that they must do more than simply “not harass” employees, they must be effective leaders. They must be aware of even potentially minor issues and know how to properly investigate and deal with them. They must encourage positive “bystander” intervention, where awkward or odd comments that may not have been overtly sexual are followed up on to confirm that lines were not crossed.

Encourage Reporting

Don’t assume that because people don’t report harassment, you don’t have an issue. On the contrary, if people do not feel comfortable reporting concerns, that is the problem. Throw out “zero tolerance” policies that may prevent employees from reporting anything for fear that every transgression will result in immediate termination, instead of more appropriate corrective counseling. Simply put: we cannot just “fire” our way out of this problem. Employees who feel that their workplace will listen to their report and take some action are less likely to file claims and are more likely to report high workplace satisfaction, even when the report does not result in a finding in their favor.

Simplify Policies

The typical sexual harassment policy today is ineffective and filled with confusing legal jargon. Many policies parrot the language of the law without any thoughtful consideration. For example, common policies forbid “unwanted” sexual advances, which is in the law, but let’s be real: we do not want to condone any sexual advances at work, “welcome” or not. Further, we have defended many claims brought by employees terminated for inappropriate sexual conduct who argue that their firing was improper because, they argued, their conduct did not rise to the level of sexual harassment. We cannot set our company standards at sexual harassment. We must motivate our employees to be good and considerate of one another and know that inappropriate conduct or bullying will not be appropriate or condoned at any level. Instead, we advocate for a simple, clear policy that encourages employees to avoid conversations about sex at work and tells them to be on the lookout for any conversation that may “make things weird,” because every communication that creates a level of discomfort is a distraction to the job and should be avoided.

In sum, companies that focus on proactive change will have an opportunity to evolve and thrive as they benefit from the full spectrum of employee talent. Companies that don’t will risk experiencing their own #MeToo moment and may become the next news headline.

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By Anthony Kuchulis

Anthony Kuchulis is a partner with Barran Liebman LLP in Portland, Oregon, where he focuses his practice on representing employers and management in employment litigation. He also advises on employment law issues, including compliance with state and local rules and ordinances, representation before board and regulatory agencies, and defense or litigation of claims. He may be reached at [email protected].