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#MeToo at Home and Abroad
ALM Media
Updated
The news that Harvey Weinstein was indicted this week on additional criminal charges, one of which (predatory sexual assault) carries a maximum sentence of life in prison, makes clear that the #MeToo movement and its influence on the workplace and our culture will not abate any time soon. The allegations against Weinstein first surfaced in October 2017, which at this point seems like eons ago. It is fair to say that the effect of these charges on the workplace—in essence, that he raped and sexually assaulted women with whom he worked, or who sought work from him, over a period of decades— has been profound. In the immediate aftermath of the scandal, the reputations of many high-level executives, politicians, and others in the public eye were severely damaged or ruined. We have seen in the United States an enormous upsurge in complaints alleging sexual harassment. Many of these allegations refer to conduct that allegedly occurred in the distant past. The complaints have resulted in an enormous increase in internal investigations, putting a strain on human resources professionals and departments throughout the country as they struggle to carry out these investigations in a thorough and timely manner. Third-party investigators, too, are busier than ever, responding not only to harassment claims, but also the steady increase in compliance related investigations during the past several years, particularly in financial services and other regulated industries. And while there is no space to discuss all the effects and side-effects of this movement, it is worth pointing out that the recent increased focus (around the world) on pay equity is certainly one of them.
Overseas Responses
On the international front, the #MeToo movement has had significant impact, both in employment and labor laws as well as in employment practices of multinational companies with highly mobile employees who travel from country to country, on short- and long-term assignments. Some of these employees, sad to say, wreak havoc. A Frenchman, Dominique Strauss-Kahn, the former International Monetary Fund (IMF) chief and one-time French presidential hopeful, may have been the #MeToo movement’s progenitor. As many will recall, in May 2011, a hotel maid at the Sofitel Hotel in Manhattan accused Stauss-Kahn of sexually assaulting her. The accusations resulted in Strauss-Kahn’s disgraced departure from politics, as well as a series of lawsuits and prosecutions on both sides of the Atlantic. On the legal front, French President Emmanuel Macron’s government has proposed legislation to crack down on sex harassment and discrimination. The French Criminal Code already prohibits sexist, insulting behavior. A new draft bill seeks the introduction of on-the-spot fines for street harassment. Sexual harassment in public places, including obscene comments and gestures, cat-calling and whistling, would be punished by a minimum € 90 fine. In October, a female French journalist based in New York who claimed that an executive made sexually suggestive comments to her created her own hash tag, #BalanceTonPorc— translated as “rat out your pig”—which went viral. On the other hand, French public sentiment has not been entirely sympathetic to the movement. A group of 100 prominent French women and intellectuals, including actress Catherine Deneuve, issued an open letter in Le Monde asserting that the #MeToo movement incites “hatred of men and sex.” The women condemned “puritanism,” and declared that men should be “free to hit on” women. The women criticized the widespread claims against men in power, following the Weinstein scandal, as unfair “denunciations. Germany had a similar debate to #MeToo in 2013 with the hashtag #Aufschrei (“outcry”). The German General Equal Treatment Act grants employees considerable rights and makes clear precisely what constitutes sexual harassment. It includes unwanted physical contact, leering, lewd looks, sexual comments, sexist jokes or the displaying of pornographic material. A single action may constitute sexual harassment.
China
Mao Zedong said that “Women Hold up Half of the Sky.” And indeed, to this observer, Chinese women often hold prominent places in Chinese companies, to almost a surprising degree. Chinese companies send many female expatriates to the United States and elsewhere on international assignment. Chinese employment laws prohibit discrimination against women. But in fact and practice, the laws provide no clear definition of an offense, no clear guidance on punishment, and the few awards that have been made are minimal. This is no doubt in part because of the law’s requirement that the woman provide physical evidence of misconduct. Following the Weinstein accusations, though, China reached a watershed moment. In October 2017, the China Daily, a government organ, published a statement that the type of behavior perpetrated by Weinstein could never happen in China because of its cultural traditions. The publication asserted: “Chinese men are taught to be protective of their women. Behaving inappropriately toward them, including harassing them sexually, contradicts every Chinese traditional value and custom.” This statement resulted in howls of protest and a social media backlash. In January 2018, a female former doctoral student at Beihang University posted on social media an allegation that her former doctoral supervisor harassed her on campus. Within days, the former professor was removed from his teaching role, and the same day, the Chinese Ministry of Education announced plans to establish a long-term mechanism to prevent sex harassment at universities and colleges. Nevertheless, the New York Times reported in April 2018 that Chinese companies were recruiting for female “motivators.” The job, to provide back massages and similar services for male employees, called for women with “five facial features that must definitely be in their proper order” and who could speak in a gentle way. The applicants were required to “have a contagious laugh, be able to apply simple makeup, and be taller than 5 feet 2 inches.” https://www.nytimes.com/2018/04/24/business/china-women-technology.html
Japan
In Japan, like China, the anti-harassment movement was galvanized by the disclosure of alleged inappropriate treatment against a female professional. In 2016, journalist Shiori Ito alleged that she was raped by Noriyuki Yamaguchi, a high profile TV journalist, who was a Washington bureau chief for the Tokyo Broadcasting System. Ms. Ito is now pursuing a civil lawsuit against him. And in April 2018, a female journalist accused the Japan Finance Ministry’s Administrative Vice-Finance Minister, Junichi Fukuda, of harassing her with sexually suggestive comments. Shortly thereafter, Fukuda resigned, denying the allegation but claiming it left him unable to do his job. Nevertheless, Japanese female employees do not have a history of bringing claims of this nature to the attention of their employers, and most observers believe that the #MeToo movement will cause this culture to shift over time.
Mobile Employees
As noted, the movement has also affected the United States and other multinationals with mobile workforces. Consider, for example, this scenario: A European executive travels to California for a social gathering between his company and a key client. While there, he drinks a bit, flirts a bit more, makes some suggestive comments to female employees of the client (who are also drinking and carrying on), and then goes back to his hotel and to sleep. Later, female employees of the client complain to their U.S.-based employer that the executive has sexually harassed them. The client informs the executive’s employer of these allegations and demands that he have no further contact with its employees. But the executive’s job is completely tied up in his responsibilities for this client. What is the employer to do? In the United States, where employment at-will is the norm, this scenario would likely provide legitimate grounds to dismiss the executive. He simply is unable to do his job in the face of the client’s refusal to work with him. Absent clear evidence of bad faith on the part of the accusing employees, the executive’s employer would be well within its rights, subject to the terms of any employment agreement the executive may have, to dismiss him. But the situation is quite different in Europe, where in most jurisdictions the employer must be able to demonstrate good cause for dismissal. What if the executive disputes the accusing employees’ claims with good evidence? Indeed, what if the employer has commissioned an independent investigator who concludes that the executive’s denials are persuasive? The client may not budge on its position that the executive should have no further contact with its employees, but this may cause the employer’s hands to be tied in terms of its ability to discipline the executive. We have seen this scenario, and similar ones, on numerous occasions. An overseas employer’s ability to take disciplinary action against the executive may not be nearly as clear-but as it is in the United States.
Solution
Multinationals must review, reinforce, and restate their policies and culture—from top-down. Policies must have teeth. They must be visibly and regularly enforced. Further, the HR team must be entrusted and empowered to act. Employers must educate themselves on the laws of harassment and discrimination in the countries in which they do business, and provide training to expatriates and other mobile employees before they travel there, even for brief stays. The employer must have credible investigation protocols, and regularly scheduled training—ideally, in person, with professional and knowledgeable trainers. Managers, too, must be trained, on how to report and handle a complaint; what to do if they witness misconduct; and, critically, what to do, and not to do, if they are accused of misconduct. The employer must be willing to take action against bad actors, regardless of their level in the company; it must move to prevent misconduct; stop it when it learns of it; and commit to continued reinforcement of these messages. #MeToo is a worldwide phenomenon. The issue is only going to grow with importance, and employers need to stay on top of these issues to recruit and retain the best talent, and to maintain their reputations as good and fair employers for women and men. Philip M. Berkowitz is a shareholder of Littler Mendelson and co-chair of the firm’s U.S. international employment law and financial services practices.Sixtine Gossellin, an international law clerk at the firm, assisted in the preparation of this article.
