How to Avoid Going Viral in the #MeToo Era

This piece is a response to an article originally published in our July 2018 issue, which was retracted shortly after publication. You can read our statement here. We would like to once again thank everyone who shared their concerns.

The Law Practice Division recently published an article on sexual harassment that caught my eye. The article, Practicing Law in the #MeToo Era, offered simple suggestions to decrease chances of sexual harassment in the legal workplace. It bothered me that the suggestions were gender-specific and played on stereotypes. I copied the link and shared it in a Facebook group of a few (thousand) attorneys to gauge my own reaction—am I the only one that thinks this a bit tone deaf? It turns out, I was not. Within hours, the publisher issued an apology and retracted the article. All it took was a few emails from readers. In the wake of this experience, I spoke with many people I respect who are either a different sex or generation and was surprised to find not everyone shared my view of the article.

This raises two important points. First, it shows how susceptible we are to cultural blind spots. Statements that can cause anger and resentment in one group or person may evoke indifference or praise in others. Second, it exemplifies how a misstep can reach a court of public opinion on social media instantaneously. This article explains how to minimize the threat of a cultural blunder and social media backlash. To do this, employers and businesses should take steps to understand the current social climate, confirm that internal policies account for labor and employment laws, and use tools to foster a workplace culture that is conducive to employee growth. The breadth of this article is limited because I’ve used the retracted article as a point of reference—it’s important to me to address where I believe it went wrong—but I’ve included links to helpful resources for those looking for more information.

Understanding Women’s Workplace

If you don’t want to end up as the next hashtag, staying informed about gender issues in the workplace is crucial, and given the multigenerational workforce, not easy. Relying on your personal theories about gender and work won’t cut it. Relying on one woman to be your cultural informant about the issues women face in the workplace, while not a bad start, could be problematic. For instance, the author of the retracted article I mentioned is a woman who theorized that the #MeToo movement is to blame for a newfound lack of access for women to co-workers, meetings, and jobs. The article is not the first to warn of an impending #MeToo backlash, but I’ve seen no proof that the hashtag has made things worse for working women.

It’s well-documented that women’s workplace challenges pre-date the 2017 #MeToo movement. While women make up half of law school classes, research in 2015 showed that, after law school, the equity trend falls off for women’s legal careers. That year women made up only 17% of the equity partners at large law firms. See Stephanie A. Scharf and Roberta D. Liebenberg, First Chairs at Trial More Women Need Seats at the Table: A Research Report on the Participation of Women Lawyers as Lead Counsel and Trial Counsel in Litigation. In an ABA case study, researchers found that women trailed behind men in litigation roles. Women made up only 32% of the lawyers that appeared in civil trials, and of those women, only 24% appeared as “lead counsel” in all civil cases and just 27% designated themselves as a trial attorney.

Even before #MeToo became mainstream, my generation knew that working women faced implicit bias at work. See Sheryl Sandberg with Nell Scovell, Lean In: Women Work and the Will to Lead (highlighting studies finding qualities of success and ambition received positively in men but received negatively when women exhibit the same characteristics). Studies from 2015 showed that the path to success had more barriers for women than for men, including disproportionate stress, the stigma of taking parental leave, less access to mentors and sponsors in the workplace, and the persistent double bind “where women walk a tightrope between being liked and being respected.” See Sheryl Sandberg, When Women Get Stuck Corporate America Gets Stuck. Researchers even found that women were receiving biased feedback and performance reviews at work, leading to “cumulative disadvantage over a woman’s career over time, resulting in lower access to key leadership positions and stretch assignments, advancement and pay.” Rachel Emma Silverman, Managers: Watch Your Language, Wall St. J., Sept. 30, 2015 at R9 (women received 2.5 times the amount of feedback than men did about having aggressive communication styles and 2.4 times the references to team accomplishments).

Most people would agree that #MeToo increased awareness of one serious issue that women face: sexual harassment. Of the women attorneys recently surveyed by the Florida bar, ABA President Hilarie Bass’s home state, 50% reported experiencing sexual harassment or bullying at work. See Killian, Mark, Florida Bar News, Why are Women Lawyers Leaving the Profession? (July 15, 2018); see also NPR The Two Way, A New Survey Finds 81 Percent of Women Have Experienced Sexual Harassment, Feb. 21, 2018. It may be that #MeToo was the culmination of a collective awareness about the prevalence of sexual harassment. With the heightened focus on sexual harassment, and statistics showing the stressors working women experience, employers cannot afford to take these topics lightly. Employers—men and women—must understand the landscape to make good decisions and smart policies.

How do employers navigate these social landmines? Read on for a few suggestions.

Decoding Dress Codes: Gender Neutral a Plus

Problems can arise when employers have gender-specific guidelines, especially for dress codes and behavior. The retracted article contained a gender-specific clothing suggestion that would be problematic as a dress code. On the topic of how “women can minimize the chance of experiencing harassment,” the author explained:

What can women do? … One thing women professionals can do—and this does not relieve men from responsibility for their reactions—is to dress for the office and not like they might at a bar.

The author said that it was unfair for men to be distracted by an attractive woman’s “cleavage or other skin” in the workplace.

Suggestions aimed at women’s attire, especially in the context of sexual harassment, are problematic because they play into the “she-was-asking-for-it” narrative and victim-blaming mentality that studies have discredited. See e.g., Mikki Kendall, Why Dress Codes Can’t Stop Sexual Assault: The Idea That Clothing Contributes to Rape is False—and Incredibly Common, Wash. Post, (Apr. 13, 2016).

While dress code policies can differentiate between sexes under certain circumstances, employers are more likely to violate Title VII when their dress codes apply only to one sex. See e.g. O’Donnell v. Burlington Coat Factory Warehouse, Inc., 656 F. Supp. 263, 266 (S.D. Ohio 1987) (finding where only women were required to wear smocks and men could wear normal business attire, “the blatant effect of such a rule is to perpetuate sexual stereotypes”). Best practices for employers is to adopt a gender-neutral dress code if possible.

Stressing conservative attire as a company’s cultural goal is fine, but doing so only for one gender as a strategy to decrease chances of sexual harassment is a risky tactic. In some Title VII discrimination cases, the court’s analysis turns on the employee’s subjective belief about the employer’s employment practices. Regardless of whether a training linking dress codes to sexual harassment would, in fact, violate Title VII, a court would look to how the employee interpreted the training to see if they had a “reasonable belief” it violated Title VII. See Trent v. Valley Elec. Ass’n Inc., 41 F.3d 524 (9th Cir. 1994) (holding claimant established prima facie case where a meter reader had a “reasonable belief” that it was unlawful under Title VII for her to be subjected to series of sexually offensive remarks at a company-mandated seminar). This means that even when an employer hasn’t adopted an official policy, the rhetoric its employees hear matters.

Let’s Talk About Sex (Stereotyping)

You’re a human being (unless a robot is reading this), so chances are you have formed stereotypes that influence how you see the world. My six-year-old daughter has been unconsciously shaping her stereotypes for years: girls play with dolls; boys play with trains. My daughter is surprised or embarrassed when people prove her stereotypes wrong. Employers have a lot more on the line.

Back to that article—I think the author blundered by giving advice based on gender-specific stereotypes. The article proposed that women wanting to avoid harassment should contain their “energy” and ensure “their demeanor and energy invite professional treatment.” It advocated for women to exhibit “[f]riendly and business-like behavior.” For men, the author suggested they stop behaviors that might be experienced as harassment.

Gender-specific directives have been bad advice for nearly 30 years since the Supreme Court held that an employer’s adverse employment decisions motivated by sex-stereotyping violated Title VII. Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989). Sex-stereotyping would include an expectation that a woman’s energy and demeanor be “friendly and business-like.” See id. (in “context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender”).

Additionally, working with the assumption that men and women fit into two boxes will create blind spots, the most obvious being LGBTQ employees. Title VII prohibits same-sex sexual harassment, Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-82 (1998), as well as discriminatory sex stereotyping that results in disparate treatment of employees, including discrimination against “women who do not wear dresses or makeup and men who do.” EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F. 3d 560 (6th Cir. 2018). Under any circumstances “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination.” Id. (affirming claimant’s prevailing in sex discrimination case against an employer who fired claimant after they transitioned gender to female and attempted to follow employer’s gender-specific dress code as a woman).

Workplace policies can be frustrated by unnecessary gender-specific directives. The now-retracted article suggested that men could stand up for women when they see women being harassed. While that is great, speaking up for a colleague isn’t something that only men can do; it’s something everyone can do. In place of male-preferred-conduct and female-preferred-conduct, employers can ask all employees to strive to understand how their behavior may be perceived by their co-workers, dress professionally and appropriately for their office environment, and report incidents of harassment, whether or not the employee knows of the incident by first or second-hand knowledge.

Keeping Up with the Kickstarters: Safety in Smartphones

People have written volumes explaining how employers can create safe work environments for their employees. If you need a recap, check out the EEOC’s Study of Harassment in the Workplace or advice from one of my colleagues, Anne Yuengert.

Employers have had complaint procedures for years, and as #MeToo has shown, people often have not used them. What’s new for employers are the tools at their disposal. A new attorney-developed app allows employees to anonymously report sexual harassment or other perceived problems to workplace management. Anonymous reporting, while a little scary for a company, can ease a victim’s or witness’s fear of retaliation that comes with reporting incidents and allow management to make an objective assessment of the incident, take prompt action, and be proactive to prevent similar incidents in the future—all without the stigma the reporter might otherwise face. This helps employers handle incidents, but also sends a message that they want employees to help them improve the company culture.

Long Story Short

You don’t have to be sued to be caught up in a social-media firestorm. In 2018, it’s easier than ever before for employees to record a co-worker’s harassment or an employer’s biased dress code policy and then ask a friend (or few thousand “friends”) about an issue. Employers need to be sure their policies can stand up to the light of social media before that happens. Don’t rely on outdated advice that fits one worldview. When you’re looking for advice on sexual harassment and workplace policies, ask a lawyer—preferably one with a finger on the social (media) consciousness.

About the Author

Christina M. Seanor is an associate in the general litigation practice group of Bradley Arant Boult Cummings LLP. She would like to thank “Stevie Rushing, Will Manuel and Anne Yuengert for providing invaluable feedback and edits, and to the Llamas, you know who you are, for encouraging me to write this article.”

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