After October 2017, when the New York Times and The New Yorker revealed the pervasive criminal behavior in which Harvey Weinstein engaged in for decades, more than one hundred victims and survivors came forward. Weinstein is now in prison while awaiting a second trial in Los Angeles. His movie empire is in ashes. Importantly, the broader #MeToo movement has had a permanent impact on social, employment and legal perceptions.
What should we expect next?
From events over the last two years, far more people understand the definition of sexual harassment is broad. Where there’s one victim, there’s potentially more. A misconduct case can be supported in court by examples of “prior bad acts.” Non-Disclosure Agreements (NDAs) can, and will, be broken. Even if the statute of limitations has run out, it may be possible to have an impact.
Employers now know predators may not stop at legal methods to intimidate, sabotage, and silence their victims, and these activities will reflect poorly on the employer. Some executives and managers have issues with impulse control, entitlement, conflicts of interest and ethics in their personal relationships that compromise the integrity of the organization. Management at the highest levels of an organization may engage in cover up. A culture of cover up can spawn attempts to illegally hide or obscure payments to victims/survivors from investors.
Human resources (HR) and traditional systems for reporting may be undermined by the pervasive impression that the victim reporting will be branded a “troublemaker.”
NDAs recommended by a corporate legal department to silence survivors may not keep the victim silent. Organizations become the villain if they sue to enforce the NDA after it is breached by the victim to expose the truth.
Mishandling sexual misconduct can result in damaging publicity, lawsuits, management turnover, federal investigations, shareholder lawsuits, and decreased market value with devastatingly high costs. The repercussions of siding with the perpetrator against the victim can dog an organization for years.
The legal world now knows employees are seeking release from Non-Disclosures related to sexual misconduct. Acquiring companies should vet targets for undisclosed misconduct. Court cases can no longer be easily brushed aside as “he said, she said” when it has been shown repeatedly that an individual case may be the tip of the iceberg.
These represent significant, seismic shifts in societal perceptions that favor victims and survivors, for whom justice was previously elusive. What other shifts can we anticipate?
Services offering to connect victims suggest people reporting misconduct will increasingly have already identified others who support their case when they report. Allies are likely to report more frequently to HR than in the past.
Previously, organizational “codes of conduct” were considered sufficient even if sexual discrimination polices were missing, unclear or overly broad. Expect to see revisions to codes of conduct that:
- give examples of what qualifies as sexual misconduct.
- clarify offsite behaviors.
- spell out the reporting process.
- elaborate on how investigations are conducted.
With the launch of the Center for Institutional Courage, HR reporting, compliance and investigation practices that retraumatize survivors will come under increasing scrutiny. Expect to see higher expectations for more sensitive treatment that positions the survivor as the organization’s truth teller, not troublemaker.
Publicly-held companies, particularly the Fortune 1000, will be increasingly able to compare their investigative processes and time to close cases with those of comparable companies. Companies will resolve complaints and take action against perpetrators more quickly and decisively. NAVEX Global has indicated that for 2019, 20% of companies take 100 days or more to close a case. Expect to see that percentage shrink.
Companies are under pressure to fire executives for sexual misconduct. Not only will executives leave companies without their golden parachutes, as hundreds have, but after employment contracts are tightened, expect to see compensation clawbacks by the employer for sexual misconduct violations.
As companies move more decisively, anticipate an increase in wrongful termination lawsuits by former executives against their employers. Travis Smiley took PBS to court, and the court ordered him to pay $1.5 million for violating PBS’ “morality” clause. Former Turvo CEO Eric Gilmore sued his former employer after he was dismissed for billing over $75,000 in adult entertainment to the company. The good news: the cost to defend such suits is a fraction of the cost of mishandling sexual misconduct claims.
Corporate boards will become more diverse, and private companies going public will be scrutinized for “bro” culture. The state of California began requiring a single woman on all boards with an executive base in California on January 1, 2020 and will be requiring two to three by 2021. The EU’s constituent countries have set various objectives.
NDAs for sexual misconduct will increasingly be abandoned. In October of 2019, NBC released all former sexual misconduct plaintiffs from their nondisclosure agreements. In December, Gretchen Carlson, Julie Roginsky and Diana Falzone, formerly of Fox News, formed “Lift Our Voices” to advocate for an end to NDAs for sexual misconduct. California’s law banning NDAs in cases of sexual misconduct went into effect 1/1/19. Without the company hiding the victim behind NDAs, perpetrators will have a harder time finding subsequent employment.
In October of 2019, California banned forced arbitration for sexual misconduct. Forced arbitration for sexual misconduct, usually agreed to when an employee first joins a company, will come under increasing pressure.
Removal of NDAs and forced arbitration is among the greatest achievements of the #MeToo movement. Be prepared for a new movement to require corporate disclosures to investors of sexual misconduct settlements over a certain amount.
All in all, the #MeToo movement has had profound influence which will continue to increase justice and equity in the court of law, in organizations and in the court of opinion. The tidal wave of the #MeToo movement is still building.
