Podcast Interview: Reviewing the Legal Side of Sexual Harassment in the Workplace
Approximately half of all women will experience sexual harassment in the workplace. It is up to companies to create an environment where such behavior is not tolerated. What should business leaders know about such policies and their binding legalities to ensure that their workers are protected while maintaining an affable company culture?
In this portion of the Workplace Strategies Podcast series, “Women in the Workplace”, Fred Coon, CEO of Stewart Cooper & Coon sits down with Susan Savitt, an experienced and recognized practitioner in the fields of labor and employment law, and Lisa Barrington, an ICF certified coach, workplace & engagement strategist to discuss the legal side of sexual harassment in the workplace.
The following is a transcript of their recent interview:
Announcer: Hello. Welcome to Workplace Strategies where CEO of Stewart Cooper & Coon and bestselling author, Fred Coon, interviews leaders in their fields to discuss strategies that meet the challenges of today's workplace.
F. Coon: My guest today is Susan Savitt and Lisa Barrington; and what a team. This is a legal question. It's tough, and I'm sure you, Susan, have many examples. [If] my company or any mid-cap large company has a mandatory binding arbitration agreement policy wherein employees come in and they're required to sign as part of the application or acceptance process, what happens there? Are they really bound to it? Are there exceptions to it? Tell me about the importance of this area.
S. Savitt: Generally, if you have a meeting of the minds, both sides know you have a binding contract; but different courts interpret differently. The federal courts are more inclined to send things to a binding arbitration, but the state court for some reason, is less willing to do that. So it may, again, depend on your jurisdiction. What the binding arbitration thing does is really take the person out of court. You go to arbitration. There's less discovery; there's less time, and there usually no appeal. So, you've given up a lot of rights if you sign a binding arbitration agreement for employment issues. The EEOC, however, has said that we are not going to be bound by that agreement, and that cases that have been litigated. What the situation is currently is that even if the employee gave it right after, the EEOC can take up that same issue, the same charge, and bring the case to court with the EEOC being the plaintiff for the case; an EEOC versus XYZ company. They can ask for specific relief for the employee who came to them to begin with. So, the person can file that charge. They can't pursue that charge. The EEOC can take up the charge and run with it again, but arbitration is going to take away a lot of rights too, and it’s going to take away rights to appeal. You're going to be in front of an individual who very often shows up and over and over again. So the corporate attorneys are going to be familiar with that arbitrator as opposed to the individual. So what's going to be cheaper? It's going to take less time. Individuals very often don't want to go down that road.
F. Coon: So what happened just from her point of view -- the human side of this, Susan? I come into the company they want me to sign; am I required to sign this mandatory arbitration binding agreement?
S. Savitt: Well you know that's an interesting question, and it might depend on whether there's a union involved or what the bank is saying about it, but probably, you're not going to keep your job if you don't sign it or they won't offer you one.
F. Coon: That's right. They make you sign one of these after you're already employed; or is this a precondition of employment?
S. Savitt: It's done both ways so that if you change a condition of employment very often you have to have some benefit involved. But I assume you give them a new title, you give them a raise, or give them a new location, you may change the terms and conditions of employment at that point, and then put the condition into effect.
F. Coon: So, Susan, what happens after the fact? They put a policy in place, and they say for all current employees, you are now as a condition of employment, subject to this policy; and of course going forward, all new hires will be subject. What happens to the current employees if there's no benefit offered in exchange? Do they not sign the agreement?
S. Savitt: Well, the benefit is that you continue your employment. Essentially, you can force them to abide by it, even if they haven't signed it. But let's assume it's a published policy and you're given the right to stay or not stay. If you agreed to stay under these new rules and regulations, then you basically have accepted the terms under implied acceptance. It's implied that, because the benefit is your job, there’s there's a good chance that that arbitration agreement is going to be in effect.
L. Barrington: What I would add, from our perspective here, is the fact arbitration agreements have binding policies which are put in place by companies because it benefits the company. It's just that simple. It generally is not going to offer as much benefit to the employee because it removes some of the employees’ rights and it gives employers more control and less cost. In case there is an action and that's the bottom line. Employees certainly can refuse to sign it, or for instance, refuse to sign it upon the job offer. Even though most companies have it as part of the policy, they will withdraw the offer [if refused]. Occasionally, they'll make an exception for employees [associated with] difficult hard to fill positions or have unique skill sets. They will make an exception on occasion. I've seen that happen.
F. Coon: Basically, what it is doing setting up an employment contract that's different from everybody else.
L. Barrington: So you're setting up a different employment situation with discrimination against all the others who don't have that exception.
S. Savitt: I suppose if the person you gave the exception to and everybody else in the company is female that might be OK, but I don't think it would be that that way. I'm sure you are aware non compete agreements. It’s kind of looked at the same way- that different people might have different situations.
F. Coon: That's another whole subject; I’m in complete agreement. I think you are as well. Is there anything else that we can contribute so the listeners have a really good picture here? Binding arbitration and the do's and don'ts?
S. Savitt: You know, I think the only thing is that if there is a labor group involved, you know, a union or something else, a lot of these answers may be different.
F. Coon: Are there any questions, final comments that you'd like to make in closing?
L. Barrington: I do have a couple of things I think that people should be aware of. I'm not sure if people recognize the prevalence of sexual harassment in the United States. For example, a recent ABC News poll found that half of American women reported that they've experienced unwanted sexual advances at work. A quarter of them said that these offenses were from someone who had influence over them at work. I think what's also important to understand is that this can lead to charges. The EEOC, in 2017, stated about 184 lawsuits alleging discrimination and that's out of tens of thousands of clients. So, they only pick the ones that they think have merit. And you should know -- our audience should know -- that the EEOC achieved a successful outcome in ninety 91 percent of their filings. So if they file, they have pretty good evidence. That’s over 150 of those lawsuits where people/organizations were found guilty of discrimination. And it could be as simple as they just have to rehire that person and give them back wages. But it could be much more complex including class actions, where about 30 or could also include punitive damages which could be quite high.
S. Savitt: The only thing I would add, Fred, is that regardless of the size of the employer there is some law somewhere that is applicable to them in this area, and especially now, when the mores seem to be in a great state of flux and change. People are becoming more and more aware of this issue. And although it's been around for many years now, the need for movement is making people more aware of the fact that they might have right, but that does not mean they can't just have a convivial employee workplace. I don't think it has to be everybody scared of everybody else. If you just learn what you're supposed to do, act appropriately and have the proper procedures in place, everything should run just fine.
F. Coon: Like my dad used to say, do the right thing. That's correct; and we spent a lifetime trying to figure out what that is. But it's still a good philosophy. It's so important to do that, whether you're a large company or a small company. Doing the right thing supersedes any of that. That's my opinion. You all are the experts, and I think that communication and knowing the law are also brilliant. I would agree, having been through the series now with the both of you, I would say that ignorance of the law is no excuse. Well, I'd like to thank Lisa Barrington and Susan Savitt, contributors to this section of “Women In The Workplace” [Workplace Strategies]. It's been a delightful series. Thank you both very much.
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