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What Craft Brewers Should Know and Do as the Laws Respond to the #MeToo Movement

It’s no secret that allegations of sexual misconduct have commanded — even dominated — the attention of the media in recent years. Indeed, the #MeToo movement has empowered many individuals to come forward and share their experiences with the world. At the same time, sexual harassment claims in the workplace are increasing across the country. In 2018, the Equal Employment Opportunities Commission (EEOC) received a whopping 13,055 complaints of sexual harassment — a five percent increase from 2017. 


The craft beer industry is not immune from sex harassment claims. Dozens of craft brewers and distributors across the U.S. — including breweries in Oregon and Washington — have faced recent lawsuits from current or former employees. The list of craft breweries named in sexual harassment suits includes some of the country’s most well-known brands. And that doesn’t even scratch the surface when considering harassment claims asserted and resolved prior to lawsuits ever being filed. 


Unsurprisingly, legislative bodies across the country are drafting laws aimed at empowering victims of harassment, and simultaneously making it more difficult for employers to prevent current or former employees from speaking about their claims via confidentiality provisions in settlement agreements. Currently, the Oregon legislature is working on a workplace harassment bill that, if passed, will substantially expand the rights of current and former employees to bring lawsuits against their employers. Senate Bill 726 would expand the statute of limitations for bringing harassment claims (among others) from one to five years. The bill would also address an oft-disputed area of case law by clarifying that owners, presidents, partners and corporate officers can all be held individually liable for engaging in prohibited harassment/unlawful activities. Further, the bill would make it unlawful for an employer to request an employee to enter an agreement (including settlement agreements) that would prevent the employee from disclosing or discussing conduct constituting unlawful discrimination. 


But Oregon is not the only Pacific Northwest state putting significantly more pressure on employers to root out sexual misconduct. Across the Columbia River, the Washington Supreme Court recently held that employers of places of public accommodation are directly liable for employees who sexually harass members of the public, even if the employer did not participate in the conduct and was not negligent in training or supervising the employee (Floeting v. Group Health Cooperative). This is particularly notable for breweries and brewpubs with operations in Washington, as places of public accommodation include locations “where food or beverages of any kind are sold for consumption on the premises[.]”


Simply put, the status quo is changing, and employers must be ever more proactive in rooting out harassment from their workplaces. To be clear, the end goal is a very good thing: no one should ever be subjected to workplace harassment. Every workplace should strive to have a culture free from such behavior. So, what can craft brewers do today to make sure they’re on the right path?


First, take a look at your workplace policies. Do you have an anti-harassment policy? Does it address relationships in the workplace, or how to handle conflicts of interest?


Second, be on the lookout for tell-tale signs of harassing behavior; you don’t want to bury your head in the sand if you have a reasonable suspicion something inappropriate is happening. Be proactive, discipline wrongdoers and certainly don’t blame or otherwise retaliate against a victim or reporter. Depending on the facts and the parties involved, it may be appropriate to hire an outside investigator.


Third, engage professionals to provide sexual harassment training on site. You’d be surprised at the number of people who think real-world examples of unlawful harassment are actually acceptable or innocent behaviors. 


Finally, don’t be afraid to contact an employment law attorney for advice. As detailed above, laws are rapidly changing. Every step you take matters, so it’s important to understand the potential ramifications of your company’s actions. •

 

 

 

 

 

 

 

 

 

 

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Chris Morehead is an attorney in the Portland office of Ogletree Deakins, a national labor and employment law firm. He focuses on hospitality employers, with an emphasis on the craft beer industry. He can be reached at christopher.morehead@ogletree.com or 503-552-2140.

 

 

 

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