August 10, 2019

#MeToo: Its impact and what’s happening now

The #MeToo movement has become an avenue for harassment survivors to speak out, demonstrate resistance, heal – and demand change, said Lisa Banks, a partner with Katz Marshall & Banks LLP in Washington, D.C., who was among panelists of “The #MeToo Reckoning: How Far We’ve Come & Where We Go from Here,” at the American Bar Association Annual Meeting in San Francisco.

Banks, a 20-year veteran in the arena of employment discrimination and whistleblower protection cases at the trial court and appellate level, is on the frontline of #MeToo. As are her three fellow presenters, each of whom indicated good progress since the two-year movement began, but also agreed that more reform is needed.

“It’s a movement not a moment, and it’s going to continue,” Banks said of #MeToo.

On the corporate front

Banks said her firm is seeing improved efforts by corporations in their response to sexual harassment, including better training, investigations and follow-up.

But among hurdles to progress: non-disclosure agreements. Banks said these agreements have allowed sexual harassment complaints to continue to “fester” and victims should have a choice whether or not to come forward after a non-disclosure agreement has been signed in a settlement.

Non-disclosure agreements put other victims at risk, Banks said, emphasizing that employers need measures in place to ensure that harassers do not continue to harass.

Sandra R. McCandless, a partner at Dentons in San Francisco, represents employers in employment matters, agreed that corporations are taking the issue of sexual harassment more seriously than ever, particularly because of active corporate boards. “They want to know what’s going on and want to do the right thing,” she said.

But while Banks said earlier that training has improved, McCandless believes that corporations can do better. “Online training is not effective,” she said of the increasingly popular learning tool.

Instead, McCandless favors a range of training from stress release to having a wellness coach, calling it a more holistic approach.

“The more we see this in the workplace, the less claims we’ll see,” she said, emphasizing the value of preventive measures.

And, beyond just improving its training, corporate leaders must believe in it to create a “culture of change.”

McCandless shared three critical steps for leaders:

  • Believe that a safe, respectful, diverse and inclusive workplace is important; articulate it; and act on it
  • Hold accountable those who engage in misconduct, those who are responsible for responding and those who retaliate
  • Hold accountable those responsible for diverse recruitment, hiring and retention.

“This is not training to change minds, but training to change behavior,” she noted. “You will not after two hours of training convince someone that, ‘What’s wrong with me telling Susan she is sexy in that dress?,’ No, go home and tell it to your wife, but when you walk into the doors of this workplace, that’s not OK.”

Panelist Chai R. Feldblum, a commissioner at the U.S. Equal Employment Opportunity Commission, indicated there is still progress yet to be made when employees report harassment.

Employers need to take people’s complaints seriously. “‘Thank you for coming forward. If what you say is happening, it’s wrong and we’ll stop it and here’s what happens next,’ – that’s what an employment procedure should be like,” he said. 

On Capitol Hill

Emily Martin, vice president of For Education and Workplace Justice at the National Women’s Law Center, said that 15 states have passed reforms to protect workers from sexual harassment since Oct. 2017: Arizona, California, Connecticut, Delaware, Illinois, Louisiana, Maryland, New Jersey, New York, Nevada, Oregon, Tennessee, Vermont, Virginia and Washington.

A lot still needs to be done, Martin said. Fixes that are just about sexual harassment are not the best answer in state and federal legislation – all forms of harassment need to be addressed.

So far, New York is the only state that has banned all forms of discrimination and harassment for all employees, she said.

Although Congress has not passed comprehensive sexual harassment legislation in the wake of #MeToo, there is an “exciting” new bill being introduced called, “BE HEARD in the Workplace Act.”

Martin called it a “new marker” for comprehensive reforms and a “model” for state efforts that pulls from various trends to “strengthen protections against harassment and discrimination in a more comprehensive way.”

The law is one piece of the overall strategy to rid the workplace of sexual harassment, but Martin said organizations need to continue to “campaign for culture change.”

“The #MeToo Reckoning: How Far We’ve Come & Where We Go From Here” was sponsored by the ABA Civil Rights and Social Justice Section