HR Intel: Sexual Harassment 2.0 – Now Comes the Harder Part

The fall of 2017 may forever be remembered for launching the #metoo movement as bombshell sexual harassment claims against big names arose seemingly every other day.

A series of high-profile employers were quick to terminate or force big-name employees out the door in situations involving clear wrongdoing (Charlie Rose, Matt Lauer, Mark Halperin, Peter Martins etc.). The list is still growing, with the downfall of Las Vegas casino mogul Steve Wynn only the latest example, and seems bigger than some small Midwestern towns.

While many of the cases were fairly black and white, it was inevitable that shades of gray would arise in situations where the power dynamic, and the facts, were a bit less clear-cut. Some recent stories serve to illustrate the point.

Take the case of The New Yorker’s Washington correspondent Ryan Lizza. The New Yorker fired Lizza in early December after it said he had engaged in what the magazine called, “improper sexual conduct.”

Lizza also worked as a political commentator for CNN, which promptly pulled him off the air pending an investigation. Well you may have missed it but following a six-week investigation, CNN reinstated Lizza. In a statement, the cable network said, “Based on the information provided and the findings of the investigation, CNN has found no reason to continue to keep Mr. Lizza off the air.”

Unlike many other superstar sexual harassment claims in recent months in which the accused either issued apologies or said “They didn’t recall the conduct in question,” Lizza contested every aspect of the allegations, which he said involved a consensual relationship. He called the New Yorker’s decision to fire him “a terrible mistake,” which was made hastily and without a full investigation of the relevant facts.

Obviously there are two sides to the story. And his accuser’s attorney, Douglas H. Wigdor said, “In no way did Mr. Lizza’s misconduct constitute a ‘respectful relationship’ as he has now tried to characterize it.” So it remains to be seen where the truth lies.

But Lizza’s CNN suspension and subsequent reinstatement shows the importance for employers of conducting full and impartial investigations into sexual harassment claims.

Meanwhile, the recent situation involving New York Times reporter Glenn Thrush raises the question of how to decide when sexual misconduct merits termination or some sort of discipline short of that. At least four female colleagues from Thrush’s former job at Politico accused him of inappropriate behavior, including unwanted kissing and touching.

The 50-year-old Thrush did not supervise any of the women nor was there any apparent evidence of quid pro quo, but all were significantly younger than him. And as a star White House correspondent, he was in a position to have influence.

The Times suspended Thrush without pay while it conducted a full-scale investigation, which reportedly included interviews with more than 30 people. Alcohol played a part in the incidents, and Thrush voluntarily underwent substance abuse rehabilitation in the aftermath.

Ultimately, the Times decided to reinstate Thrush but not to his high-profile position covering the White House.

Executive Editor Dean Baquet, who made the final call, said, “While we believe that Glenn has acted offensively, we have decided that he does not deserve to be fired.” Baquet further noted in a statement that each case has to be evaluated on individual circumstances. But Hillary Clinton weighed in to chide The Times for going “too easy on Thrush.”

With many other nonmedia employers grappling with similar sexual harassment allegations, HR is sure to play a central role in the process.

And Now for Something Completely Different…

Predictive scheduling continues to be one of the more notable trends affecting the workplace. New York City is the latest big city to pass a law that will soon allow employees to temporarily change their work schedules to attend to certain personal events.

Effective July 18, Big Apple employers will be required to grant employees’ requests for a temporary change to their work schedule at least twice per calendar year for up to one business day per request. A temporary change means a limited change in time or location including but not limited to:

  • Using paid time off;
  • Working remotely;
  • Swapping or shifting work hours; and
  • Using short-term unpaid leave.

Other cities that have passed predictive scheduling laws include San Francisco, San Jose and Seattle. Oregon passed a first-of-its-kind statewide predictive scheduling law in the summer of 2017, and Littler Mendelson shareholder Bruce Sarchet suggested on a recent XpertHR podcast that California may soon follow suit.

Marijuana Legalization on the Move

In January, Vermont became the ninth state to legalize recreational marijuana, but it’s the first to do so via the state legislature rather than through a ballot initiative.

From an employer’s standpoint, the new law — which takes effect July 1, 2018 — provides a number of safeguards for employers. For instance, the law explicitly states that it does not prevent employers from banning marijuana use in the workplace, nor does it require them to accommodate marijuana use. In addition, it does not permit fired employees to sue their employer if they were terminated for violating a policy prohibiting marijuana use by employees.

The list of states to legalize recreational marijuana is highly likely (no pun intended) to hit double digits in 2018. Newly elected New Jersey Governor Phil Murphy has made legalization one of his legislative priorities. Interestingly, though, two large New Jersey counties have voted to formally oppose marijuana legalization.

Several other states are at least considering legalization laws, including:

  • Connecticut;
  • Delaware;
  • Michigan; and
  • Rhode Island.

All of the states to have legalized marijuana thus far make clear that employers remain free to maintain a 100% drug-free workplace. Effective February 1, however, Maine now protects job applicants and employees from being discriminated against or otherwise penalized solely for consuming marijuana away from the workplace.

But there were court rulings in 2017 in a number of states that expanded employee rights when it comes to medical marijuana. For instance, the Massachusetts Supreme Judicial Court held that a newly-hired employee terminated because she tested positive for marijuana use can sue her former employer for handicap discrimination.

And in a first-of-its-kind ruling, a federal court held that the federal marijuana ban did not preempt a Connecticut law protecting job applicants and employees from employment discrimination based on their medical marijuana use.

From the Big Brother Is Watching Department…

A pair of new Amazon patents for tracking wristbands are raising some alarm about workplace surveillance. Amazon warehouse workers have complained about the company’s working conditions for years, and it doesn’t sound like this newest technology is likely to improve their morale.

The Amazon wearables could potentially gather information about an employee’s every move, including how fast they work, how long they take breaks and when they go to the bathroom.

The company claims the tracking wearables are designed as a way to collect data about inventory rather than individual employees. And, it suggests the technology will help workers rather than harm them.

But workplace advocates aren’t so sure. Workplace Fairness senior advisor Paula Brantner told CNN, “At this point in time, I have more questions than answers about how it will be used.”

It’s worth noting that Amazon, and other employers considering similar technology, must tread cautiously as making any sort of employment decision based on collected biometric data could violate the Genetic Information Nondiscrimination Act.

What’s your biggest concern about wearable technology in the workplace? Let us know by leaving a comment below.



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