of their respective positions. Contrary to what many employers
may believe, this is generally true even if the statutes of limitations
applicable to any potential claims that could be asserted against
the employer have expired. While this principle has pre-existing
practical and legal support, the #MeToo movement has placed greater
emphasis on it by shifting the focus from considerations of liability,
morale, etc. to one of a manager/supervisor’s fitness to serve.
When a complaint of sexual harassment or misconduct
involving either an incident occurring long in the past or an alleged
harasser who was not a supervisor or manager at the time of the
incident is sustained, the employer should consider an approach
adapted from the procedure advocated by the EEOC for making
hiring and other personnel decisions based on an employee or
applicant’s criminal history information. This procedure involves an
analysis of factors such as:
(1) the nature and gravity of the alleged offense or conduct;
(2) the amount of time that has passed since the offense or
conduct is alleged to have occurred; and
(3) the nature of the position held by the accused harasser
(both at the time the offense or conduct is alleged to have occurred
and at the time the complaint is made).
The first factor recognizes that, even in workplaces embracing
a “zero tolerance” policy toward sexual harassment and misconduct,
there is a material difference between an inappropriate comment
and a physical assault or between pervasive, ongoing conduct
and an isolated event. The second factor recognizes that an
individual can change over time, thereby attaching relevance to
such considerations as whether he/she has matured, whether he/
she has accepted responsibility or demonstrated remorse for his/her
conduct, whether there has been a lack of similar misconduct over
a meaningful period of time, whether he/she has received previ-
ously unavailable training, or similar mitigating considerations.
The final factor focuses on whether the alleged harasser was able to
utilize his/her position to engage in the conduct in question and/
or whether he/she is currently in a position that simply cannot
effectively be performed by someone who previously engaged in the
conduct in question.
As the #MeToo movement continues to gain traction and
spread, prudent employers will prepare for the possibility of
receiving complaints premised on alleged conduct occurring far
in the past and/or involving high-profile employees or officials. At
the same time, such employers will review their EEO and anti-
harassment policies to ensure that they clearly inform employees
of expectations with respect to workplace conduct, and provide a
clear and effective internal complaint procedure. Employers may
also want to consider training – or re-training – employees on
these policies so there are no questions about what the employer
considers appropriate workplace conduct and the consequences for
failing to conduct oneself in conformance with such policies. For
purposes of enhancing the effectiveness of such training, there is
no shortage of real-world examples involving individuals whose job
security previously appeared impervious to such allegations – all as
a consequence of the #MeToo movement. G
Douglas H. Duerr and Tracy Glanton are partners at Elarbee
Thompson, a national labor and employment law firm with an
industry practice area focused on franchises. Learn more at
www.elarbeethompson.com.
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