The law regarding sexual harassment in the workplace hasn’t changed in the last few months, but perhaps everything else has. Employment lawyer Kathleen Connelly, a partner at Lindabury, McCormick, Estabrook & Cooper in Westfield and Red Bank, has seen a sharp uptick in business since the “Me Too” movement has emboldened women to come forward with stories of sexual harassment.
“We have a much heightened awareness of what constitutes unlawful sexual harassment in the workplace and what kinds of behaviors are incorporated into that,” she says. “And the tolerance level for these kinds of workplace behaviors has changed dramatically as a result of the movement. You have many more women who will probably be empowered to come forward now.”
Connelly represents employers in sexual harassment cases and also conducts training on the subject and performs outside investigations of harassment claims. She will host a webinar hosted by the New Jersey Business and Industry Association on Wednesday, January 31, at 11 a.m. For more information, visit www.njbia.org.
Connelly says businesses need to do three things to prevent harassment at their workplace. First, she says, businesses are best off conducting training so that harassment never becomes an issue in the first place. Second, she says, businesses need to have clearly established procedures in place. Third, if an employee says they are harassed, the company must thoroughly and fairly investigate the claim in good faith and take appropriate action about it.
The last one can be tricky, since organizations are generally not very good at investigating their own members as conflicts of interest abound. That’s why Connelly is frequently hired to perform those investigations.
“Investigation is one of my favorite parts of my job,” she says. “It’s very challenging but very interesting.”
The first thing Connelly does on every investigation is to let the client know she is going to call the case as she sees it. “I have an obligation to my client to get at the truth, whatever it is, no matter how hard it may be,” she says. “If the investigation isn’t done properly and there happens to be litigation that flows from it, it increases the liability because the investigation was a sham. If you make those ground rules clear, they understand that.”
Connelly, who has been a lawyer for 28 years, holds a bachelor’s degree from Monmouth University and received her law degree from Rutgers-Newark in 1990. She has seen many cases where the victim’s allegations were completely corroborated, others where they were partly corroborated, and a rare few where the allegation appeared to be completely fabricated. She says the most important thing is to determine the truth of the accusation as much as possible.
“While the ‘Me Too’ movement is a good development, and I certainly laud what’s being done, we have to be careful that we don’t end up in a situation where there’s a rush to judgment,” she says.
Investigating these accusations can be tricky. After all, most harassment happens away from witnesses. Nevertheless, it is possible for a good investigator to get to the bottom of some cases. For example, Connelly recalls one situation where an executive director of an organization was accused of having non-consensual sexual relations with a subordinate, who said she felt pressured to succumb to his advances due to fear of losing her job. The director responded to these allegations by saying the relationship was consensual. “That’s always the battle: was it, or was it not consensual?” Connelly says.
In this case, Connelly examined the behavior of the accused man. It turned out there was no evidence that the two had any kind of relationship outside of their sexual encounters. They never socialized, they didn’t give each other any gifts, and he didn’t even know her birthday.
“This gave the suggestion and inference that maybe this was all about sex and it tipped the scales in favor of the complainant,” Connelly says. This kind of evidence would probably not be enough to convict someone in criminal court, which has to meet a much higher standard, but Connelly says it was enough to make the company take action.
In another case, a woman said her supervisor put his hand on her thigh while the two were driving to an off-site facility. She was able to fend the man off, but was upset by the incident. The two were alone in the car, and there were no witnesses, but Connelly was nevertheless able to reach a conclusion.
Connelly began her investigation by talking to the woman’s co-workers. One of them said that the woman had returned to the office on the day of the incident appearing distraught. The co-worker was so alarmed that she called the victim into her office to ask what happened, and she told the story. A different co-worker said the boss had made a similar pass at her. “When you have that kind of evidence, it tips the scales in favor of the complainant,” Connelly says.
A good investigator casts a wide net when looking at a case, Connelly says. The inquiry must follow every avenue of evidence: text messages and e-mails are also key sources of information.
Most of the cases she investigates don’t involve that level of abuse and are usually about unwanted comments or innuendo. “People just aren’t recognizing that there are individuals in the workplace who don’t appreciate innuendo, sexual teasing, and lewd comments,” she says. “They’re dropping their filters and offending people by engaging in those types of behaviors. In those cases, she says, a reprimand is often enough to put an end to the problem.