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EEOC actively pursuing sexual harassment cases in the #MeToo era

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The Equal Employment Opportunity Commission was sending a message when the agency recently filed a spate of harassment lawsuits, letting the employer community know that sexual harassment remains an enforcement priority for the agency, according to legal experts.

On June 14, the EEOC announced it had filed the lawsuits against various employers across the country, charging them with harassment.

“There are many consequences that flow from harassment not being addressed in our nation's workplaces," EEOC Acting Chair Victoria A. Lipnic said in a statement. "These suits filed by the EEOC around the country are a reminder that a federal enforcement action by the EEOC is potentially one of those consequences."

The lawsuits follow a meeting that reconvened the EEOC's Select Task Force on the Study of Harassment in the Workplace. In a statement about the meeting, EEOC Commissioner Chai Feldblum said “our challenge is to use this ‘#MeToo’ moment well.”

Acting EEOC Chair Victoria Lipnic said in a statement that the commission has not seen a significant increase in the harassment charges filed, despite the growth of the ‘#MeToo’ movement. She said it may be too soon to determine whether more victims will come forward, as complainants have about 300 days to file a report.

“I think the seven lawsuits were there to send a message,” said Barbara Hoey, a partner with Kelley Drye & Warren L.L.P. in New York. “‘Look, we are here, we’re actively prosecuting, and employers beware and, victims be aware.’ So, I think the EEOC felt a bit left out. For whatever reason, the plaintiffs, the women, were not feeling they should go to the EEOC to get relief. They were getting better results getting a lawyer or going directly to the company and saying, ‘this is what happened to me.’”

“I don’t think it’s something we see all the time,” said Lindsey M. Marcus, Chicago-based partner with Franczek Radelet P.C. “We know that harassment is one of the EEOC priority areas right now. I do think this shows that the EEOC is trying to capitalize on the momentum behind the ‘#MeToo’ and the Times Up movement.”

Four of the seven lawsuits were filed on behalf of a single complaining employee while the other three were multiple complaints about the same employer, Ms. Marcus said.

“If you get a charge of discrimination, an employer shouldn’t ignore it, you should certainly take it seriously,” she said. “If an investigation hasn’t been conducted before, you should conduct one. A takeaway here is that one complaint from a single employee can get an employer into trouble with the EEOC.”

The seven companies are Bayou LaBartre, Alabama-based Master Marine Inc.; Santa Barbara, California-based Real Time Staffing Services Inc.; Georgetown, South Carolina-based G2 Corp.; Springfield, Missouri-based New Prime Trucking Inc.; Paramount, California-based Sierra Creative Systems Inc.; South El Monte, California-based Tapioca Express, and Cincinnati-based Total Maintenance Solutions Inc.

Most of the companies did not respond to requests for comment. A spokesman for Prime Trucking said the company does not comment on pending litigation. Real Time Staffing Services Inc., which does business as Select Staffing, said the EEOC’s lawsuit “concerns four temporary workers who allegedly experienced harassment at a customer’s job site by the customer’s own employees.”

“Select had no notice of this and was never apprised of any such issues on a contemporaneous basis,” the statement said. “Simply put, Select does not and will not tolerate discrimination of any kind in its workplace and relative to any of its personnel. As a result, Select intends to vigorously defend itself in this lawsuit.”

The Select Task Force released a report in 2016 that noted that 45% of the alleged harassment charges the commission receives were based on sex.

The report also found that harassment often goes unreported and those who experience sex-based harassment often “avoid the harasser, deny or downplay the gravity of the situation or attempt to ignore, forget or endure the behavior.”

“The least common response to harassment is to take some formal action — either to report the harassment internally or file a formal legal complaint,” the report said. “Roughly three out of four individuals who experienced harassment never even talked to a supervisor, manager or union representative about the harassing conduct.”

Stacie Caraway, employment law attorney with Miller & Martin P.L.L.C. in Chattanooga, Tennessee, also suggested that the EEOC was trying to send a message with the seven lawsuits.

“We first saw this trend a few years ago when the EEOC wanted to send a message with the Americans With Disabilities Act,” she said. “A lot of employers had policies that said if you were out so many months, you’re automatically fire, so the EEOC filed a bunch of lawsuits to send a message there that they didn’t like those policies, so obviously that’s what they’re doing here.”

Debra Katz, Washington-based partner with Katz, Marshall & Banks L.L.P., who testified before the EEOC, said the “EEOC has been really consistently going after companies that engage in sexual harassment and this has clearly been a priority of the EEOC both in terms of the work of the Select Task Force and in terms of the litigation priority because sexual harassment is such a scourge.”

“The EEOC is quite serious in doing what it can do to help redress the issues and bring attention to how prevalent the claims are, and I think it’s very consistent with what its enforcement agenda has been,” she said. “The EEOC’s work has really shed light on what are the risk factors and what companies need to do. I think they’ve been trying to get the public’s attention to this for a very long time and I think the ‘#MeToo’ movement is proving to be an important moment.”

Eric Meyer, a partner with FisherBroyles L.L.P. in Philadelphia, also said the EEOC has been active in pursing harassment complaints.

“I think the way you get the people in the business to take this seriously is to speak their language,” he said “Speak in terms of the costs of ignoring this, the harm to the brand, the legal costs, the bad publicity and how that translates into the bottom line. I think not addressing these things negatively impacts the bottom line. The risks certainly outweigh the cost of doing some proactive training, handbook updates and other steps to insulate the company from risk.”