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1 This Webcast Will Begin Shortly If you have any technical problems with the Webcast or the streaming audio, please contact us via at: Thank You!

2 Bolstering Your Preventative Practices to Meet the New Wave of Sex Harassment Claims Presented By: Samia M. Kirmani Jackson Lewis P.C. Boston (617) Ryan P. Lessmann Jackson Lewis P.C. Denver (303)

3 CLE Credit Information This information only applies to attorneys seeking CLE credit. During the webinar, you will see and/or hear CLE code(s). Please write this code down. You will need it to request CLE credit.

4 About the Firm Represents management exclusively in every aspect of employment, benefits, labor, and immigration law and related litigation. 800 attorneys in 57 locations nationwide. Current caseload of over 6,500 litigations, approximately 650 class actions. Founding member of L&E Global. A leader in educating employers about the laws of equal opportunity, Jackson Lewis understands the importance of having a workforce that reflects the various communities it serves.

5 Lawyer s Disclaimer Jackson Lewis P.C. has prepared the materials contained in this presentation for the participants reference and general information in connection with education seminars presented by the firm and its attorneys. Attendees should consult with counsel before taking any actions that could affect their legal rights and should not consider these materials or discussions about these materials to be legal or other advice regarding any specific matter.

6 The Speak Out Evolution 1975 Working Women United Rally Meritor Savings Bank v. Vinson 1991

7 The Speak Out Evolution The Speak Out Evolution Next Up... #Isaw #Iwitnessed #Iheard

8 Leaders must MODEL expected behavior. Employers must MESSAGE expectations and tailor the message to its various constituencies. Employers must MANAGE situations. Employers must MONITOR the workplace.

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11 REFRESHER: THE LAW ON SEXUAL HARASSMENT AND CONSEQUENCES FOR VIOLATIONS

12 Far-Reaching Consequences Legal liability for harassment. Criminal charges. Personal impact: Divorce; Estrangement from family; Psychological ramifications. Financial impact: Damages and personal liability; Companies do not always indemnify and defend. Career ruin and reputational damage.

13 Difficult to Manage May not achieve confidential settlements. In litigation: Only certainty is unpredictability of outcomes; Welcomeness, severe/pervasive, offensiveness even more of a grey area than ever before; Arguments regarding consent may ring hollow.

14 Overview of the Law Quid pro quo: Someone in management; Conditions an aspect of employment; Upon submission to a sexual advance or sexual favor. Hostile work environment: Unwelcome; Based on sex or sexual in nature; Severe or pervasive; Offensive to a reasonable person; Interferes with ability to work; Creates an offensive, intimidating, or hostile work environment.

15 Confusion about the Grey Area : Signs of Harassment MOST CONDUCT IS NOT AS SALACIOUS AS WE READ ABOUT. Close talkers and standers. Leers and comments. Inquiries into personal life. Discussion of sexual experiences.

16 Overview of the Law No retaliation against: Those who report issues or help others do so; Those who participate in an investigation. Damages.

17 Standards for Liability Standards of liability: Who is the harasser? Supervisors; Non-supervisor employees; Third parties.

18 Duty to Act Triggered on notice: To those named in complaint procedure; To HR; To ANYONE in management; To those with responsibility to make, influence or recommend employment decisions. Prompt investigation and remedial action. Potential for punitive damage exposure kicks in IMMEDIATELY upon notice. Outcome rises and falls on what happens next.

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20 WHAT S AN EMPLOYER TO DO?

21 IT STARTS AT THE TOP: MODEL Leaders must model behavior expected to align zero tolerance policy with a zero tolerance reality.

22 Model When it s okay for leadership, it s okay for everyone. Turns zero tolerance into total tolerance. Accountability for violations. Accountability for allowing violations to occur. Accountability for retaliation. Set the culture.

23 Model Institutional measures to consider: 360 Reviews; Revising executive employment agreements: Consequences for violations termination, bonus, equity, compensation; Indemnification parameters; Consider requiring that they obtain personal insurance coverage.

24 MESSAGE Strengthen messages regarding conduct expected and conduct prohibited.

25 POLICIES Content review. Meaningful dissemination.

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27 Policies: Content Review harassment, equal employment opportunity policies, codes of conduct: Conduct expected and violations with examples; Cover clients and vendors and other third parties; Complaint procedures with multiple avenues for complaint; Anti-retaliation provisions; Specify that perpetrators will be disciplined AND those who fail to report also may be subject to disciplinary action; Comply with state-specific statutory requirements; Language.

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29 Policies: Dissemination Consider meaningful dissemination of policies: Hire and at least annually thereafter (if not more); Disseminate from leadership (written, video, verbal); Repeat message in meetings, Town Halls; Posters; Make policies accessible to employees after dissemination.

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31 TRAIN Everyone. Tailor the content.

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34 Train: EVERYONE Everyone should receive training: Board of Directors; C-suite/executive leadership teams; Non-executive management; Non-management employees; Compliance, Human Resources, Employee Relations, Legal. Tailor to industry and organization. Qualified instructors. Different messages for different groups.

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36 Train: CONTENT FOR EVERYONE Everyone, including non-management employees, should receive training on: Examples of what is not appropriate AND examples of what IS appropriate; Workplace civility; Complaint procedures; Information on process and investigation; No retaliation; Confidentiality; Consequences for violations.

37 Train: CONTENT FOR EVERYONE Everyone should receive training on: Duty to report; Bystander intervention; Unconscious bias.

38 Train: SUPERVISORS For front-line supervisors and all people managers and leaders: INVEST MOST HERE. All of the previous, PLUS: DUTY TO ACT; Appropriate responses to complaints, to issues, to rumors, to gossip, to innuendo; Accountability for violations; Accountability for failure to report; Accountability for aiding and abetting; Told they should NOT GO IT ALONE.

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40 Train: COMPLIANCE, EMPLOYEE RELATIONS, LEGAL For compliance, employee relations, compliance, legal professionals: Investigations; Due process; Consistency in remedial actions.

41 MANAGE MANAGE situations.

42 Crisis Onset: The Path to Recovery or Ruin The Path to Recovery: Activate crisis protocol; Leverage multidisciplinary team; Gather information and investigate; Identify spokesperson; Engage; Take prompt, consistent, effective remedial action. The Path to Ruin: Ignore the problem; Deny the substance of complaints before investigating; Fail to engage executives; Cede control to the media; Go it alone!

43 Crisis Plan Multi-disciplinary team: Legal; HR; Board Member liaison (if necessary); Investor Relations (if applicable); PR; Identify spokesperson; Communication plan to employees; Communication plan to customers, advertisers, key business relationships; NO QUICK JUDGMENTS. Interim measures. Investigate.

44 Once on Notice... Interim measures. Immediate suspension? ALWAYS? Assess situation.

45 Investigate Purpose: to determine what happened. WHO conduct investigation? Assign Quarterback. Independent outside investigator (especially when accused is high-level). Well-trained internal investigator, trained in investigations. Not biased. WHO is interviewed and in what order? WHO is present for interviews? Review available documents, communications, s, text messages, EVERYTHING.

46 Investigate Goal: picture events like a movie. Pay attention to Me Too evidence. If additional incidents, details emerge then investigate those too. Credibility determinations are part of the process. Document investigation. Do not rush to judgment. Secret Sauce: Be Flexible, Be Open-Minded, Assess All Available Information.

47 Prompt, Consistent, Effective Remedial Action Toothless policy is useless. Take action real action to ensure that conduct stops and does not recur. Range of consequences, depending on circumstances. Proportionate to infraction. Consistency, Consistency, Consistency. Get back to complainant(s). Careful with public messaging! Not normal to make detailed announcements. Avoid excessive publication.

48 MONITOR Monitor effectiveness of preventive measures.

49 Monitor Continuous self-evaluation. Own data is powerful to identify areas of vulnerability: What do stakeholders say? Existing climate studies and surveys; Historical complaints, claims, charges, lawsuits; Pay attention to Glassdoor and the like... Conduct on-going climate studies and surveys.

50 Monitor Monitor s. Add professionalism and workplace values and culture accountabilities to performance evaluation criteria. Diversity and inclusion efforts are critical to culture change. Foster engagement. Ensure D&I constituents are working with HR/ER.

51 WHAT S NEXT?

52 Horizon Guidance from EEOC expected. More employee protection legislation afoot at state and federal levels carving sex harassment from arbitration agreements; curbing use of non-disclosure/confidentiality agreements; Anti-bullying. Stay tuned for investigations webinar and other updates.

53 TAKE-AWAYS Model. Message. Manage. Monitor.

54 TAKE-AWAYS: MODEL, MESSAGE, MANAGE, MONITOR Leadership must MODEL expected behavior. Focused and thoughtful MESSAGING: Policies content and dissemination. Tailored and focused REAL training of EVERYONE. Appropriate messaging. MANAGE when situation arises: Easily activated crisis plan. Investigate, Investigate, Investigate. Consistent and meaningful remediation and consequences. MONITOR.

55 Thank You Samia M. Kirmani (617) With 800 attorneys practicing in major locations throughout the U.S. and Puerto Rico, Jackson Lewis provides the resources to address every aspect of the employer/ employee relationship. jacksonlewis.com Ryan P. Lessmann (303)

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