The Weinstein Effect: Understanding Sexual Harassment Claims
In the wake of the October 2017 publications by The New York Times and The New Yorker reporting more than a dozen allegations of sexual harassment, sexual assault and rape, against now disgraced Hollywood juggernaut film producer Harvey Weinstein, an unprecedented wave of allegations have been mounted against many influencers in the film industry, news media, and political arena. This list includes the likes of former House of Cards actor, Kevin Spacey, former co-host of NBC’s Today show, Matt Lauer, former comedian turned Democratic United States senator, Al Franken, acclaimed documentary filmmaker Morgan Spurlok, and recent Golden Globe Awards winner James Franco. The ripple effects of these allegations have also sparked social media movements such as #MeToo and other similar permutations. It has also been reported that between 1997 and 2017 Congress paid out more than $17,000,000 to settle workplace disputes on Capitol Hill, some of which included allegations of sexual harassment.
Washington and Hollywood elites have not been the only ones dealing with the ramifications of the “Weinstein Effect.” Employers now face potentially heightened levels of exposure, while employees, now armed with greater access to information are pursuing claims of harassment and sexual harassment at the workplace with state and federal agencies.
While the United States Equal Employment Opportunity Commission (the federal agency responsible for administrating and enforcing civil rights laws against workplace discrimination) has not released statistics for 2017, colloquial evidence suggests that the frequency of harassment and sexual harassment charges may be on the rise. Although formalized statistics are not readily available, colloquial evidence also suggests that employers and public entities have been handing out larger payouts to settle sexual harassment administrative charges and lawsuits. Given the current climate brought about by the hurricane of events and high-profile allegations, what do employers, employees, and lawyers need to know in order to empower themselves in defending against or prosecuting sexual harassment charges? Below is a quick overview.
Complaint and Agencies
Sexual harassment claims typically begin with something called a “complaint” or “charge” that is filed by the individual bringing the sexual harassment claim with either a state or federal agency. The individual filing the complaint is known as the “complainant” or the “charging party.” The individual or entity answering the complaint is known as the “respondent.”
The main federal agency responsible for investigating sexual harassment claims is the United States Equal Employment Opportunity Commission (EEOC). Sexual harassment claims with the EEOC are brought under Title VII of the Civil Rights Act of 1964. Title VII applies to all employers with 15 or more employees. Under Title VII sexual harassment can take the form of unwelcome sexual advances, requests for sexual favors, and any other verbal or physical conduct of a sexual nature, when this conduct either explicitly or implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Generally, the law requires that the person bringing the claim exhaust his/her administrative remedies before being able to pursue litigation in state or federal courts.
Aside from the federal protections under Title VII, many states and cities have created their own legislation or ordinances, along with enforcement agencies, similar to the EEOC, to handle charges of sexual harassment. Often times, a person alleging sexual harassment will file with multiple agencies. State and federal agencies will sometimes coordinate to conduct just one investigation in instances where complaints are filed with multiple agencies.
The complainant typically has 180 calendar days from the date of the last alleged incident of sexual harassment to file their claim. This deadline may be extended to 300 calendar days if a state or local agency enforces a state or local law of the same basis. State and local agencies typically have similar deadlines which will usually be posted on the agency websites.
The complainant has the option of filling out a form via the state or federal agency website, by telephone, or in person. The charge provides a legal basis for the complaint. It will also include a brief account of the allegations. At this point, the investigating agency must accept formal complaints that are compliant with state and federal filing requirements. They may also dismiss defective complaints (although this is unusual), but the complainant can amend and re-file their complaint at any time within the 180 days (or 300 days).
Answering the Complaint
Once a charge or complaint has been filed the employer will be sent a letter or email notification requesting a response to the claims, as well as, supporting documentation. This letter will provide a time-frame (typically 60 days) for the employer to respond to the allegations in the charge. Extensions are usually granted on an as-needed basis. Employers should contact their attorneys to request extensions if they need additional time to gather documentation or to respond. An employer’s response can take the form of a position statement, which may or may not be required by the agency, as well as, any supporting documentation. Some agencies may also require a verified response which will ask an employer to answer each of the allegations leveled by the charging party, line by line (similar to answering a lawsuit).
Mediation
In lieu of answering a complaint, if both parties are agreeable, the agency will offer mediation or arbitration in an effort to resolve the dispute without the need for further investigation. If both parties come to a mutually agreeable resolution then the agency will close its case.
Investigation
If no agreement is reached, the state or federal agency will conduct a formal investigation of the complaint. Typically an investigation must be completed 180 days after a formal complaint has been filed but an investigator can request additional time. The point of the investigation is to gather additional facts about the incident and to assess the credibility of the person involved in the incidents. At this point, the case will be assigned to an agency investigator. The investigator is in charge of overseeing the agency’s inquiry into the allegations. The investigator will take into consideration all of the allegations and supporting documentation submitted by the parties. The investigator may also choose to conduct interviews of key witnesses. Key witnesses are individuals identified as having knowledge of the incidents (this usually includes the person filing the complaint, as well as, individuals who are named in the complaint). Formal interviews are typically conducted by phone. Employers and attorneys should be aware that while attorneys are able to attend these interviews, they are typically not able to interject on behalf of their client as they would at a deposition. After the initial interviews with the parties at issue, the investigator may want to interview additional prospective witnesses that were identified in the initial interviews. The investigator may also request additional documentation and records from the employer.
Finding
Once all interviews are concluded and all additional documentation has been submitted, the charging party usually has 30 days to either request a formal agency decision or request a formal hearing before an Administrative Judge. If a decision is requested, the agency will issue a final decision within 60 days (although this can take much longer). If an administrative hearing is requested the parties will need to present their cases before an administrative judge, who will make a determination. Once a finding is made, depending on the agency, the charging party may have the right to appeal the decision. Also depending on the agency, the charging party will then be issued a right to sue letter or the right to bring civil action will automatically vest after a certain period of time (usually 180 days). The agency itself can make certain recommendations in their findings that a state or federal court can take into consideration in adjudicating the case. Some agencies can also bring lawsuits on behalf of the charging party, although this is usually reserved for instances where the conduct of the employer is particularly egregious.
Armed with this basic understanding of the administrative process employers, employees, and attorney should feel empowered to deal with sexual harassment claims in the workplace. While a working knowledge of these claims is important, an attorney specializing in employment law is essential to navigating the administrative process. Contact an attorney specializing in this field if your company has been served with a complaint, or if you are an individual thinking about filing a sexual harassment claim.
About the Author: Alex Ion is an attorney and healthcare consultant specializing in healthcare regulatory law, employment law, and commercial litigation. He is currently the managing member of Ion Law LLC and serves as Of Counsel for Litico Law Group. Mr. Ion has represented and advised businesses ranging from international organizations and Fortune 500 companies to sole proprietorships and closely-held corporations.
During his time at a preeminent national law firm, Mr. Ion successfully defended and pursued claims involving complex litigation. He also served as a regulatory legal advisor for a Chicago healthcare consulting firm and worked in-house for one of the largest hospital networks in Illinois,where he created the legal framework facilitating the establishment of an Accountable Care Organization. Mr. Ion also worked in-house for the University of Illinois at Urbana-Champaign defending the University against employment discrimination claims.
Disclaimer: The views and opinions expressed in this article are solely those of the author and do not reflect and are not affiliated with the University of Illinois at Urbana-Champaign. The material presented in this article is for informational purposes only and not for the purpose of providing legal advice. You should contact an attorney to obtain advice with respect to any particular legal issue or problem.