In A Time Of High Sexual Impropriety
-By Howard Reill
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Everyone agrees the societal mores regarding sexual impropriety have changed in the wake of the Harvey Weinstein and subsequent scandals, but no one seems quite sure how – or how to react to it. And as every attorney knows, uncertainty invites danger.
“The rules haven’t necessarily changed, but the stakes have been raised,” says Swen Prior, a partner in the Las Vegas office of Snell & Wilmer LLP. “That said, the #MeToo movement is a wakeup call to all employers, including ‘C suite’ executives, about the importance of following the rules and avoiding even the appearance of impropriety.”
Now more than ever, Prior continues, employers need to deal with harassment claims quickly and thoroughly “in a way that protects the victims and encourages timely and good faith reporting of misconduct. In the #MeToo era, less severe indiscretions are being lumped in with the vile and illegal. This amalgamation creates problems for employers and employees because the court of public opinion is quick to judge, and is decidedly not good at separating out the distinctions.”
Workplace sexual harassment rules and policies are far from new of course, “however, many harassers believed that they were above the rules and used multiple threats to hide their behavior, including threatening job security,” notes Christian J. Gabroy of Gabroy Law Offices in Henderson. “Employees should be aware that it is unlawful for an employer to retaliate against an employee for complaining about harassment internally, within the company, or externally with a state or federal agency.” Gabroy’s associate, Liza Aronson, believes that the rules will now be enforced, with workplace policies more likely to have a “zero tolerance,” and a more stringent reporting system within the business.
“In my business, I am ensuring that all employees are aware of their rights and protections under the law,” says Gabroy. “Too often, we see employees come to our office who have been taken advantage of and/or fear retribution, by their employers. I know the contours of the law, and my objective is to ensure that all employees in Nevada can maintain a safe and hostile free work environment.”
Gabroy recommends employers confirm that existing policies are current, written somewhere easily accessible to employees, and that a proper internal reporting structure is in place so they can act swiftly and appropriately when an issue does arise. “I also advise fair, prompt investigations with appropriate corrective measures.”
“The biggest things that I see changing in this new environment are, one, companies are less likely to brush off borderline incidents, and two, more women feel empowered to file complaints without fear of being retaliated against,” says Henderson-based attorney Avi Cutler, Practice Group Leader for Ballon, Stoll Bader & Nadler, PC.
What Cutler calls the “real question” is whether this will produce lasting change “or if it will slowly return to an era where a woman bringing a sexual harassment claim that doesn’t involve assault becomes a social pariah for standing up.”
While most employers have an anti-harassment policy in place, it should be reviewed and updated. Even if there are no major changes to the law since the policy’s last review, “other important societal changes — for instance, the prevalence of social media use and handling complaints about off-duty sexual conduct — may need to be addressed,” notes Ronald J. Stolkin, of counsel, Stolkin, Ballard Spahr LLP. “Make sure all employees have received the policy and acknowledged its receipt in writing.”
Among a host of other recommendations, Stolkin advises companies take a firm stand on retaliation. “Clearly and unequivocally set forth the company’s ‘zero-tolerance’ policy regarding retaliation and the severe consequences that will result to anyone who retaliates against an employee who has reported, opposed or participated in an investigation into harassment or discrimination.”
As for activities in colleges and universities, the Obama administration used Title IX to push colleges into aggressively going after students accused of sexual misconduct, notes Nick Wooldridge of LV Criminal Defense, including engaging in sexual activities that may have seemed consensual at the time, but which were later classified as rape because the girl involved was too drunk to consent. “There were concerns that the changes went too far and deprived the accused of due process, and the Trump administration is looking to change some of the policies put in place at the time.”
However, Wooldridge adds, because of Title IX changes, a cultural shift has begun to take place where there is a societal belief that victims should be believed rather than doubted. “This is a good thing, especially in light of the long history in this country of essentially putting accusers on trial in sex crimes cases. But it’s important to remember that those who are accused have rights, too.”
Howard Riell is a veteran journalist who over the past 39 years has written and edited for nearly 200 business and consumer publications, national trade associations, advertising/PR agencies, newspapers, research firms, newsletters, non‑profit groups, e‑zines, blogs, manufacturers and other clients across the country and abroad. He lives in Henderson.