It’s Called #MeToo or ‘The Reckoning’ and It’s Not Going Away

Sexual harassment is being redefined and if you are not paying attention, or worse, ignoring the writing on the wall, you will be calling us soon to represent you to save you from the New Rules!

It’s called #MeToo or “The Reckoning”, and the number of celebrity males being brought to account for sexual harassment, perceived or real, is growing in number as actors like Morgan Freeman have now joined the list of offenders.

Even though Freeman played the Almighty in films, he was not spared or given reprieve as already he has lost sponsors like VISA and the Screen Actors Guild is discussing remanding his Lifetime Achievement Award.

Public employees may not have to be concerned about adverse publicity blaring their misdeeds for all of the world and Internets, but the “new rules” apply to everyone regardless of station in life, we all have to change our behavior or face the consequences.

A recent case we are adjudicating here comes to mind. A female probationary employee felt “discomfort” with a male colleague’s remarks to her about the musical chairs of promotions in the unit and how he is plotting to get a position of power (over her she perceived). She reported her discomfort with his remarks (and management agreed that they were not appropriate), approved her for probation and then suddenly she was terminated after her fifth month evaluation that met standards.

Even though she had a perception of harassment, Human Resources took it another way, one that reflected the older values because in 2018 and beyond, “if she perceives it, we must acknowledge it”, and not punish a worker for coming forward honestly and earnestly.

The Labor Arbitration Institute discussed this issue last fall at one of their seminars (EAA reps attend these twice per year) and here below is the discussion of the New Rules (thx Bill Maher!) for the #MeToo Era.

– Geoffrey Garfield, Former EAA Labor Representative

Advice for Sexual Harassment Cases

At a recent conference a well-known Chicago arbitrator gave advice on handling sexual harassment cases. Here are four excerpts from the lecture.

  1. You don’t need a victim.

In a Title VII case in the courts, there needs to be a victim. But this is not required for an employer who wishes to issue discipline.

You have an employee who is making sexual comments to a bunch of people at work. Some of them banter back with him. Some say nothing at all. None of them complain to management. Can management still discipline the employee? Yes, without question.

Remember the old days? Women were hired into several all-male workplaces. They were offended by the comments but they didn’t want to speak up or disrupt the harmony of the workplace. There were many men who were offended and did not want to speak up.

The fact that no one complained is of no consequence. Once management learns of the conduct, management can act and discipline for just cause. You just need a rule that encompasses the conduct.

  1. You don’t have to discharge everyone who engages in harassment.

Progressive discipline still applies. The Supreme Court has already ruled that discharge is not required in every harassment case. Your policy may require immediate discharge, but unless the union agrees with that in the CBA, the principle of just cause and progressive discipline is the applicable standard.

  1. More training is needed on “Joke” Harassment via the Internet.

I had a case where an employee switched departments. In his new department, he would send out jokes that ranged from mildly offensive to outrageous. He used gender, race and ethnicity in his jokes. Some were cartoons, but they were all jokes. Some of the recipients would write back. Finally, someone took notice and HR gave him a 5-day suspension.

I wondered why the union arbitrated this case. It’s a 5-day suspension. My advice to both sides: there needs to be more training, especially in regard to the Internet and emailing of so-called jokes.

  1. Audience Question: Can we prohibit all discussion of a sexual nature in the workplace?

So, you want to ban all discussion about sex? Not sure how you can enforce that.

It also sounds excessive. You can have many discussions about race or sex that are not objectionable. The question in law and the workplace is: Where do you draw the line? You draw the line when the conduct or statements are derogatory, discriminatory or offensive.

It’s an interesting question. And I understand why an employer wants to err on the side of caution, but such a policy goes too far. The policy has to be reasonable on paper and how it’s enforced.

Labor Arbitration Institute
Conference Reporter
September 2016

For more information see: