Susan L. Bickley, Emery G. Richards, and Jeanne M. Grasso
The #MeToo movement has shone new attention on issues for employers in the maritime industry seeking to ensure that seafarers and shore-based personnel can participate in a work environment free of sexual harassment and assault, both shipboard and shoreside. Employees at sea, often for months at a time, can face special challenges associated with a work environment that can be thousands of miles away from any home office, lead to feelings of isolation, make communications difficult, involve close proximity between work spaces and living quarters, and generally require employees to remain at the workplace during rest periods.
In other sectors of the global maritime industry, companies engaged in international business can find themselves navigating scenarios that arise from expectations regarding workplace interactions between men and women that are as diverse as their workforces. We examine here the unique legal framework that applies to sexual harassment in the maritime context, what to keep in mind for addressing incidents, and recent trends regarding steps employers are currently taking in response.
The Statistics Are Staggering
Both onshore and shipboard, sexual harassment issues affect individuals of every gender, sexual orientation, and gender identity. Increasing focus from #MeToo has recently highlighted issues surrounding sexual harassment and assault among women working in the transportation and shipping sectors, and related industries. For example, over 1,000 Swedish women in the maritime industry have shared witness accounts of sexual harassment and abuse on board vessels through #lättaankar, the Swedish version of the #MeToo hashtag. Many accounts spotlight the unique challenges inherent to both working and living aboard vessels, as well as the minority presence of women in many jobs, with an estimated less than two percent of the world’s 1.65 million seafarers being women—and the vast majority of those working on cruise ships.
The Legal Framework
Like maritime law, sexual harassment law in the United States is a generally consistent jurisprudence, particularly because it is based on federal law under the parameters of Title VII of the Civil Rights Act of 1964. Though sexual harassment issues are not new, growing momentum is supporting a broader array of options for confronting them, as demonstrated, for example, by the collaborative efforts regarding sexual assault/sexual harassment (“SASH”) training and protocols developed by a consortium in the maritime industry, labor organizations, and the Maritime Administration (“MARAD”) that was instrumental in the 2017 resumption of the U.S. Merchant Marine Academy’s Commercial Sea Year for Midshipmen after it was suspended due to concerns regarding these issues. Despite the burgeoning social and institutional changes occasioned by the increased scrutiny #MeToo has brought to employer policies, and the dramatic consequences of workplace incidents for companies confronting them in the social media era, however, little has changed in the law regarding liability for sexual harassment and discrimination, and the Equal Employment Opportunity Commission (“EEOC”) has not seen a huge increase in sexual harassment charges.
For an employer faced with addressing an allegation of sexual harassment in the maritime world, the following factors continue to guide the applicable legal framework: What laws apply? Where did it happen? What happened? Who is the accused? Who are witnesses? What are the employer’s policies, and have they been uniformly applied? What, if any, consequences occurred to the individual and their ability to succeed at work? What corrective or remedial measures, if any, are required to end any inappropriate conduct? What disciplinary action is appropriate?
Depending on the answers and relevant jurisdiction, a claimant may be able to pursue a Title VII claim in the United States, first with the EEOC and later, generally at the plaintiff’s election, in state or federal court. In addition, Jones Act, maintenance and cure, the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), or state worker’s compensation claims may also be available. In the international arena, these issues are being increasingly addressed under the Maritime Labour Convention, 2006, which was drafted under the auspices of the International Labour Organization and has now been ratified by over 80 countries, including most European Union member states, though not the United States. Given the nuances among the various legal claims that can arise in harassment situations, their unique legal standards, and the overlapping intricacies of maritime and employment law, significant implications can arise for protecting insurance coverage that may apply to a claim, making it worthwhile to seek legal counsel from a source well-versed in each of these areas.
What Employers Are Evaluating Right Now
With the recent media attention on sexual harassment in the workplace, employers are wondering what to do next. A wide array of issues have sparked focus among company leadership, boards, human resources departments, legal teams, and individuals with crisis management and risk mitigation responsibilities:
- How to handle an employee’s complaint against a high-profile or powerful accused.
- Protecting boards of directors and corporate officers from personal liability for another’s harassing conduct, and the public relations fallout.
- The use of nondisclosure agreements and mandatory arbitration clauses, and how recently enacted and proposed legislation at the state and federal level, as well as practical realities regarding their enforceability, may change their use.
- Updating sexual harassment policies and reporting procedures.
- Training: Will there be further emphasis on culture and tangible actions embodying corporate values vs. total reliance on “check the box” training?
- “Due process” provided to the accused.
- What to do with untimely complaints, and/or complaints learned through unconventional means, such as social media.
- Whether internal investigations will be conducted under the auspices of the attorney-client privilege, and whether an external neutral or internal individual should investigate.
- Recognizing, preventing, and addressing any backlash in the workplace from the #MeToo movement, which itself creates exposure. For example, what to do if an employer learns male employees segregate or do not want to travel with female employees out of fear of claims, realistic or not.
- In instances of sexual assault, how to address criminal implications, reporting, and investigations.
- Redefining “for cause” termination parameters and consequences in executive compensation agreements with regards to sexual harassment incidents.
- Examining insurance coverage issues that can arise in these scenarios.
- Acknowledging that this movement highlights gender and generational differences in perception, and various paths for moving forward.
Policies and procedures that are implemented to address the concerns raised by the #MeToo movement and that are taken seriously can help employers avoid the problems that persist from headline to headline. Employers are currently taking steps to make bystanders more willing to intervene in incidents, ensuring appropriate designation of individuals to whom complaints can be brought, implementing and strictly enforcing anti-retaliation policies, undertaking investigations swiftly and confidentially, carefully documenting findings and remedial measures taken, raising awareness of gender equality concerns, and more.
As challenges from the #MeToo movement continue, employer responses are rapidly evolving. The importance that industries involving maritime commerce have long placed on diversity, inclusion, and equality will no doubt extend in new ways in this era of change. Blank Rome LLP continues to monitor these developments with updates on the Firm’s employment law blog, blankromeworkplace.com.
This article was first published in Law360 on May 17, 2018. To read the article online, please click here. Reprinted with permission.