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#MeToo prompts corporations to look within

#MeToo prompts corporations to look within

The “#MeToo” movement — the deluge of accusations by women charging sexual harassment that was sparked by the controversy surrounding former Miramax L.L.C. co-founder Harvey Weinstein — is likely to confront employers indefinitely.

It is already encouraging underwriters to more closely scrutinize employment practices liability coverage resulting in reduced capacity in entertainment-related accounts, though to what degree claims will increase is still unclear.

Further intensifying scrutiny on the issue was the January sentencing of former USA Gymnastics team physician Dr. Larry Nassar for up to 175 years in prison for the sexual abuse of female gymnasts and other student athletes.

While sexual harassment charges are most likely to affect employers’ employment practices liability coverage, they may also affect companies’ directors and officers liability policies (see related story).

To avoid litigation, experts say employers should take a fresh look at their harassment policies and avoid a “check-the-box” mentality in addressing these issues.

Charges against Mr. Weinstein have led to many more, particularly against prominent entertainment, journalism and the media figures, with no immediate signs of abatement. And executives and well-known figures in other sectors also face accusations.

The movement is not a flash in the pan, say experts.

“It’s so high-profile, with some famous people — I think it will trickle down and embolden people to bring more claims” as time goes by, said Tom Hams, Chicago-based managing director and national employment practices liability insurance practice leader at Aon Risk Solutions.

It has led to a “closer look at corporate culture and how it impacts corporate behavior,” said Talene Megerian, New York-based national employment practices liability leader in Willis Towers Watson P.L.C.’s FINEX North America practice. “This is where we’re going to see the real change."

The issue has already affected entertainment-related accounts, said Paul Nash, Beazley P.L.C.’s London-based EPL focus group leader, who said the insurer avoids writing in the sector. “We’re definitely seeing a shrinkage of capacity in that industry for EPL,” with some insurers cutting limits or introducing higher retentions, he said.

Marie-France Gelot, New York-based senior vice president and insurance claims counsel for Lockton Cos. L.L.C., who has seen an uptick in sexual harassment claims, particularly in the Bermuda market, said clients have “sought to increase their policy limits, starting with the January renewals.”

“I think the entire market is still holding its breath, so to speak, as to how things play out,” she said.

“It is too early to tell what the impact will be either on the frequency of sexual harassment claims or, indeed, the impact on severity of sexual harassment claims,” Mr. Nash of Beazley said.

“Let’s just see how it pans out,” he said, adding the most egregious claims that have arisen in this context are not only sexual harassment but sexual assault, which involves bodily injury and “is different from a straightforward sexual harassment claim.” Employers may also be affected by wrongful hiring theories, he said.

“If there will be a massive increase in (sexual harassment) claims, I don’t think that it’s here yet,” said Michael Schraer, senior vice president of EPL and nonprofit product manager at Chubb Ltd. in Whitehouse Station, New Jersey.

“I don’t think it will have any long-term impact on pricing, because it’s so unique in terms of the exposure to certain industries,” Mr. Hams of Aon said.

The harassment issue has changed the insurance market’s perspective in terms of how it evaluates the risk, though, said Ms. Megerian of Willis Towers Watson.

Underwriters are “certainly taking a closer look at company’s policies and procedures” and at their training and at how these policies are implemented “because what they really want to get at is companies’ corporate culture and … dig deep into the policies they have in place,” she said.

There are also starting to be more face-to-face- interviews with the C-suite so underwriters can better evaluate the risk, she said.

“There’s going to be greater scrutiny at renewal around what the company has done to … prevent those claims from happening,” said Kelly Thoerig, Richmond, Virginia-based U.S. employment practices liability product leader for Marsh L.L.C.

Companies “need to be able to articulate to underwriters how they are better than their peers” and, if they have had claims in the past, “what they’ve done to improve their process,” she said.

Natalie Douglass, senior managing director, management liability practice for Arthur J. Gallagher & Co. in St. Louis, said while coverage is widely available, “whether (policyholders) buy adequate limits, that’s always the million-dollar question.”

“We evaluate each client’s risk and make our own recommendations,” but obtaining the coverage is often based on other factors, and firms decide to self-insure in some cases, Ms. Douglass said.

One possible issue that could arise is that some charges are being made in connection with occurrences of many years ago and may not be actionable, said Mr. Hams.

There might be policy provisions with regard to late notice, or prior acts exclusions that bar coverage, so it is important for companies to review policy terms, Ms. Douglass said.

Meanwhile, “it is more challenging” now to settle claims that were already filed, said Mr. Schraer.

“Plaintiffs are a little more emboldened now,” which is creating a different negotiating environment that could lead plaintiffs to litigate instead of settling, said Ms. Megerian.

In addition, some plaintiffs who had previously settled are now seeking to reopen their cases, said Brian Zink, New York-based senior vice president and head of corporate management solutions at Zurich North America.



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