On January 9, 2018, Reed Smith attorney Miriam Edelstein co-presented a panel discussion on the impact of the #MeToo movement in the workplace at the January meeting of the Labor and Employment Relations Association (LERA), Philadelphia chapter. LERA is comprised of professionals across the employment law field, both management- and employee-side attorneys, as well as arbitrators, mediators and HR professionals.
Edelstein’s presentation discussed the changes – or more accurately lack thereof – she has noted in the employment law landscape with respect to sexual harassment claims, not only over the last year as the #MeToo movement has swept across the world, but more significantly over the past many years. Despite robust and updated anti-harassment policies and their dissemination by employers, the number of legal claims has remained stagnant, and from the global conversations taking place in the media and across social media platforms, the pervasiveness of harassment far exceeds the fractional number of such accounts that result in litigation.
A few proposals are floating around legislatures and internally at companies to do away with confidentiality and non-disclosure agreements when it comes to dealing with sexual harassment claims, as well as limiting the use of private arbitration and mediation to handle such matters. The goal of these proposals appears to be to try to counter a culture of silence around these issues, with the hope that more exposure will have a positive impact in reducing the occurrence of harassment.
Edelstein posited that these measures will not have their intended impact, precisely because it is a cultural problem, not a legal one. These problems are not created in the workplace but rather are features of workplaces that are populated by individuals who learn their behavior from our larger culture. To change the culture, Edelstein suggested, we need cultural experts and skilled educators to facilitate the change.
And that is when the evening got really interesting. Edelstein was joined on the panel by Dr. Jennifer L. Pollitt, who teaches Sexuality and Gender at Temple University. Dr. Pollitt is an educator, researcher, author and activist whose pedagogical approach to teaching these topics helps students unpack their learned assumptions and behaviors. Her research and the research of other sociologists, and the Equal Employment Opportunity Commission itself, has shown that the anti-harassment training provided as a matter of course in sophisticated workplaces has reached its maximum potential in its current form. To change the culture, Dr. Pollitt asserts that we need to take a cultural approach: Confront the issues that result in the same issues recurring, despite employers’ efforts to refine and reinforce a set of values that prohibit harassment.
Dr. Pollitt’s research and proposed methodology sparked much lively discussion among the audience, with management attorneys questioning whether delving more deeply into these areas could increase liability, and arbitrators pointing out that they are never asked to evaluate whether training is effective, but only whether it took place at all, regardless of quality. Edelstein suggested that the approach Dr. Pollitt recommends is not a substitute for the methods of risk management we already have in place, nor an effective way of dealing with specific disputes that have already been raised as litigation. Rather, this approach is geared toward improving culture in a forward-looking way and reaping the benefits from the overall improvement of co-worker relations.
The audience left with much on their minds and much to consider as to whether and how the #MeToo movement might have a lasting and positive impact on workplace culture.