A recent CCBJ webinar highlighted policies and procedures for preventing workplace harassment – and strategies for controlling e-discovery if litigation does ensue.
Workplace harassment can take many forms – from unwanted sexual advances to racial discrimination and other violations based on protected characteristics – and it is certainly not a new phenomenon. However, the ubiquity of social media has brought an unprecedented level of visibility to the problem, as demonstrated by the magnitude of the #MeToo movement on Facebook and Twitter during the last year. And increased awareness of workplace harassment isn’t just a social phenomenon: The digital era has revolutionized the way these matters are handled legally as well, with the proliferation of electronically stored information (ESI) and e-discovery leaving an indelible mark on litigation strategies and techniques.
In a recent webinar hosted by CCBJ, lawyers Annmarie Simeone and Margaret Raymond-Flood, of Norris McLaughlin & Marcus, discussed effective policies, procedures and training to help prevent and address workplace harassment, as well as strategies and best practices for preserving, managing and controlling the costs of document collection, review and production in these matters.
Defining “Harassment” and Its Associated Costs
Although it is disappointingly common, one of the reasons workplace harassment continues to be such a widespread problem is likely because it can mean different things to different people. With that in mind, Simeone started the webinar with a summary of workplace harassment and a description of the various forms it can take, including quid pro quo attempts to solicit sexual favors. She also emphasized the importance of using clear, simple language when drafting a companywide anti-harassment policy, to ensure that everyone – from hourly wageworkers to senior management – understands the seriousness of the subject and exactly what is and isn’t allowed. She noted that concrete examples can be helpful.
Simeone also discussed the costs associated with harassment in the workplace, including “hard costs,” like the approximately $26 million in compensation that the Equal Employment Opportunity Commission (EEOC) was able to obtain for victims of sexual harassment in 2017, to “soft costs” like low morale and high turnover rates at companies that do not have an effective policy in place. Given the money at stake – not to mention the emotional and professional toll that workplace harassment takes on its victims – it behooves companies in all industries to stamp out the problem as much as possible.
According to Simeone and the EEOC, an effective anti-harassment policy should include protections against retaliation for employees who make a complaint or participate in an investigation, as well as assurances about the confidentiality of their identity. It should also clearly describe the process for making a complaint and include multiple avenues for employees to do so, and ensure a prompt, thorough and impartial investigation, including immediate and proportionate corrective action for those found guilty of an offense. Based on these standards, Simeone also suggested effective ways for companies to train their workforce regarding the policy – with live, in-person training being her preferred approach.
E-Discovery in the Digital Era
The second half of the webinar, which was led by Raymond-Flood, focused on the way e-discovery affects litigation after a workplace harassment claim has been filed. In years past, when a company received a harassment complaint or was sued by an employee, they could simply go through a file cabinet, pull the files, copy/scan them, and send them to a lawyer – and the discovery portion would proceed from there. In the digital era, however, most companies are paperless – or at least partially paperless – and the majority of their business communications are now electronic. The sheer volume of available data can be daunting, but it’s also a boon to litigators who are adept at e-discovery.
Raymond-Flood talked about the dangers of spoliation in cases where vital digital evidence has been either lost or intentionally destroyed, as well as the importance of keeping e-discovery requests manageable in scope – including a discussion of the various strategic tactics that come into play here. She pointed out, for instance, that one gigabyte of information can equal as much as 125,000 pages of text. This creates the clear necessity for clients and their lawyers to think through the various stages of ESI discovery. There are also a substantial number of mediums from which electronic evidence can be obtained, including obvious ones like desktop computers, laptops, servers, phone systems and mobile devices, and newer, less obvious ones like Fitbits and Apple Watches.
With so much data out there, and so many places to look for it, technology-assisted review (TAR) platforms are becoming increasingly common, and ever more valuable, allowing companies to save time and money during litigation, while helping themselves ensure the best possible outcome. “Five, six years ago, we were using one set of review tools,” Raymond-Flood said. “Now we’re using artificial intelligence, predictive coding, sampling data – all being pulled and culled by the computer.”
As Simeone reiterated toward the end of the webinar, workplace harassment is a hot-button issue, and employers should take measures to keep their employees comfortable—and limit their own liability: “The laws in this area are changing quickly,” Simeone said. “You want to make sure that your company is up-to-date in terms of compliance, and [workplace harassment policy] training sessions are a good way to cover all of these issues for your employees.”
To learn more, watch online at bit.ly/Norris71018.
Published September 7, 2018.