How to screen for 'me too’ issues in the hiring process

When the #MeToo movement ignited in the mid-2010s, it forced a massive societal reckoning with sexual misconduct and abuse. The movement started in the fall of 2017 when actress Alyssa Milano posted the following tweet: “If you’ve been sexually harassed or assaulted, write “me too” as a reply to this tweet.” That tweet ended up going viral, drawing tens of thousands of shares, likes, quote tweets, and replies. Its impact was immediate: Suddenly, countless people were speaking up about their experiences with sexual harassment, sexual assault, and other forms of sexual abuse – many of them for the first time.

Milano’s tweet intended to show how common sexual misconduct is. The responses to the tweet – and the discussions the post inspired – served to highlight, especially, how many women have been victims of this type of abuse (though many men and nonbinary individuals came forward to share their stories too). Making the movement even more visible was the fact that it led to the outing of numerous abusers in Hollywood and throughout the entertainment industry, including high-profile celebrities like Kevin Spacey and Harvey Weinstein. 

But the #MeToo movement also reaches far beyond entertainment. Indeed, in the years since Milano’s tweet, the #MeToo movement has shined a spotlight on just how common sexual misconduct is in the workplace. Moreover, the movement has shown that many employers spent years overlooking sexual misconduct in their offices and among their teams. Whether due to employers being oblivious or looking the other way, this oversight has not gone unnoticed by the general public. It has caused a worldwide call to action for employers to protect their employees better.

Indeed, it is a widely understood fact that employers are responsible for providing a safe and welcoming workplace for all employees. For generations, laws have protected workers’ rights, shielding employees from discrimination (including sexual) and more. Now, in addition to these legal obligations, employers face a watchful and engaged public eye and a court of public opinion that gives no quarter for sexual misconduct issues. Employers who fail to protect their personnel from sexual harassment, discrimination, assault, or other misconduct, are not facing potential legal ramifications and risk having their company brands irreparably tarnished on social media and beyond.

For all these reasons, employers need to think about #MeToo as they review and update their corporate policies. From background checks and thorough interviews to nuanced employee training protocols, and systems that provide victims of misconduct an easy and judgment-free way to report allegations, there are countless steps your organization can start taking to protect itself from a #MeToo-related fiasco. This white paper will examine those tactics and discuss how employers can implement them to create a safer, smarter, more respectful workplace.

What does #MeToo mean for your company

What are the implications of #MeToo for your company?

First, it is essential to note that many employers have faced no public relations catastrophe in the wake of the #MeToo movement. Some companies were already taking the correct steps to stamp out sexual misconduct in their workplaces, and others were able to shield themselves from massive public fallout, legal costs, or other consequences by swiftly ousting outed abusers from their ranks.

On the other hand, there is no doubt that #MeToo has created a lengthy list of cautionary tales in the form of employers or businesses that were brought down or substantially weakened by their brush with sexual misconduct allegations. The Weinstein Company, a decorated film studio with dozens of Oscar wins to its name, crashed into bankruptcy after its namesake CEO and co-founder Harvey Weinstein was accused of sexual harassment, abuse, assault, and rape. 21st Century Fox spent hundreds of millions of dollars in payouts, transition costs, and other expenses related to the ousting of high-profile figures like Roger Ailes (the founding chairman of Fox News) and Bill O’Reilly (a top-rated Fox News host), both of whom were accused of sexual misconduct. Even Netflix, which has survived and thrived in the wake of #MeToo, reportedly lost $39 million from firing Kevin Spacey, the star of its acclaimed House of Cards TV series, after the actor was accused of sexually harassing and assaulting numerous men.

These examples are just the tip of the iceberg – the most highly public and publicized examples of a narrative that has played out for countless smaller companies or simply less in the public eye. The message is simple: Employers that fail to prevent sexual abuse within their workplaces or hire abusers without realizing it risk substantial financial losses, legal fallout, public condemnation, and more. Note, for instance, that the number of sexual harassment claims filed with the United States Equal Employment Opportunity Commission (EEOC) spiked from 6,696 to more than 7,500 in both 2018 and 2019 – an increase that has been attributed to #MeToo.

The Interview Process

While employers cannot wholly avoid issues with sexual misconduct in their workplaces – this type of conduct, ultimately, is committed by individuals and not by enterprises – some steps can and should be taken to minimize risks. Those steps start with the interview process. Simply put, if an employer can avoid hiring a bad actor in the first place, they have a better chance of keeping a safe and welcoming workplace for everyone else. Here are some important considerations to keep in mind as you hire with an eye toward #MeToo.

Diversity, equity & inclusion

How does Diversity, Equity, & Inclusion (DEI) figure into the conversation around #MeToo, you may ask? A push toward DEI has sprung up in the past several years, largely driven by racial violence in 2020. While many often equate DEI predominantly or exclusively with matters of race, diversity, equity, and inclusion (as well as “belonging,” a fourth piece of the puzzle often lumped in with DEI), go beyond race. 

Specifically, DEI can include efforts to achieve more gender parity. Indeed, since the start of the #MeToo movement, many investors have been pushing companies to adopt more diverse boards and leadership structures, believing that more varied leadership leads to better decision-making and oversight. 

It’s not just leadership, either: gender-diverse work teams can help avoid the “boy’s club” atmosphere that has led to #MeToo issues in some companies. For instance, the tech scene of Silicon Valley tends to be a very male-dominated sector. Not coincidentally, sexual harassment and assault are “rampant” in the Silicon Valley tech scene, per a 2020 Forbes article. Women in these tech companies, including female founders, are subject to offensive jokes, unwanted physical contact, sexual slurs, propositions for sex in the workplace, and more. 

However, it’s not just Silicon Valley that has these issues. According to a Pew Research study from 2018, women working in majority-male workplaces are statistically more likely to experience these forms of gender discrimination. As such, it stands to reason that having a more gender-diverse workplace, with more women employed at all organizational levels, can help shield an employer from #MeToo-related issues.

In other words, as you compile a list of candidates to interview, it’s always wise to make sure that it reflects a diverse cross-section of experiences, backgrounds, races, gender identities, and sexual orientations.

Question to ask and not ask

Employers can do a lot during their hiring processes to minimize the risks of hiring potential harassers and abusers. Background checks and reference checks – which we will explore in greater detail later in this white paper – are pieces of this puzzle. However, even before you get to the background vetting stage of the hiring process, there is much to be gleaned from the interview itself that can point toward potential issues in the future.

How can you use the job interview to gauge whether a candidate might pose a potential #MeToo risk for your company? While many employers who ask this question are looking for a list of questions or prompts they can pose in an interview to detect issues with sexism or misogyny, the fact is that spotting red flags in interviews is often less about the questions you ask than the subtext of the conversation. Factors such as body language, tone of voice, and overall demeanor can help show whether a person is respectful and polite or if they have a tendency to “joke” inappropriately with coworkers – if not worse. 

If you’re looking for specific questions that might help reveal biases or proclivities that point toward #MeToo problems, it usually makes the most sense to frame those queries in the context of cultural fit. Aim to create a safe, respectful work environment where every person has equal opportunity, and representation is a cultural choice. Your goal is to build an inclusive company culture rather than excluding or downright hostility. Explaining your cultural goals to your candidates – and then asking them what they think about those goals, or how they see themselves fitting into those ideals or helping to drive them forward – is a smart tactic to gauge that person’s opinions and values when it comes to issues of gender equity at work. 

Paying close attention to the candidate’s verbal and body language as they respond to your open-minded cultural strategy can tell you a lot about whether they’d embrace those same values or chafe against them. If it’s the latter, you are typically more likely to have #MeToo-related issues with that person than with someone who seems genuinely passionate about furthering the quest toward equity in the workplace.

As for questions not to ask, hiring managers and other interviewers – especially men interviewing women – should be cognizant of the gender power dynamics of those interactions. As an employer taking steps to create a more equitable workplace, you need to lead by example, and that leadership starts in the interview process. For generations, women have reported dealing with sexist questions or comments in job interviews – relating to everything from marriage and/or relationship status, to children and pregnancy, to things like clothing, makeup, and appearance. If you do ask female applicants questions about how they work as part of a predominantly male team or react to the stray “inappropriate joke” around the office–your organization likely has many #MeToo risk points already entrenched.

Legal Obligations and Requirements

A #MeToo scandal can lead to lawsuits, public relations problems, cultural issues, costly departures or terminations of bad actors on your team, and more. An organization has its own internal motivations to avoid these risks. Still, when it comes to matters of actual law, what is a company obligated to do that might, in theory, help combat problems with #MeToo? In this section, we’ll take a quick look at some of the legal obligations and requirements that relate to issues of sexual harassment in the workplace.

H.R. 4445

Perhaps the landmark legislation of the #MeToo era is H.R. 4445, more specifically known as the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. This legislation, which was passed by both the United States Senate and the U.S. House of Representatives in early 2022 – and subsequently signed into law by President Joe Biden – changes the rules around how litigation works for sexual assault and sexual harassment claims.

Before H.R. 4445, it wasn’t uncommon for employers to handle internal conflicts with employees – including issues related to workplace sexual harassment or assault – through a pre-dispute arbitration agreement. Specifically, many employers include a mandatory arbitration clause in their employment contracts. Mandatory arbitration means employees must take any conflict with their employer through arbitration rather than judicial court. H.R. 4445 prohibits employers from enforcing pre-dispute arbitration clauses in cases that involve sexual harassment or sexual assault. The purpose of this legislation is to make it easier for victims of workplace sexual violence to bring lawsuits against their employers in court. 

Why does this change matter to employers? Some employers have long included arbitration requirements in their contracts because, in most cases, arbitration is preferable to a judicial court for employers for employee conflicts. Arbitration is usually less public and less expensive than court and doesn’t include the risk of the case going to a jury. In addition, these agreements can prevent employees from filing class action lawsuits if multiple employees have experienced the same treatment. 

As such, by removing the arbitration safeguard, H.R. 4445 makes employers more vulnerable to sexual assault or sexual harassment issues on their watch. In turn, the aim of the legislation – in addition to giving rights back to workers – is that employers will take more responsibility in establishing cultural expectations that discourage and prevent sexual misconduct in the workplace.

Megan’s Law

Megan’s Law is a federal law, initially enacted in 1996, that mandates “the release of relevant information to protect the public from sexually violent offenders.” It is the law responsible for formalizing the creation and updating of sex offender registries across the country and making them open, accessible, and searchable to the general public. The law is named after a seven-year-old New Jersey girl named Megan Kanka, who was abducted, raped, and murdered by a violent predator who lived across the street. The family didn’t know the perpetrator and his roommates were sexual offenders because New Jersey didn’t have a protocol that required offenders to notify law enforcement when they moved into new neighborhoods. New Jersey passed Megan’s Law to establish those protocols, and the federal government soon adopted similar legislation.

Note that different states have different restrictions on how the databases created by Megan’s Law can be used. For instance, California law prohibits this information from being used for employment purposes. On the other hand, Florida’s Level 2 background check incorporates a sex offender registry search. Employers should consult with their attorneys to understand how sex offender registry checks work in their states and whether they are allowed to incorporate these checks into their hiring processes.

Potential migrating offenders

While Megan’s Law is a federal law, sex offender registries are compiled and maintained on a state level. Sex offender registry information is not shared across state lines. Instead, sex offenders must notify law enforcement when they move to a new address – including a new state. This requirement – and the consequences it places on sex offenders, such as revocation of parole – is designed to keep close track of where sex offenders are living at any given time. States don’t share information because the goal is to avoid duplicating sex offender listings across multiple geographies. Those duplications can risk overlooking where an offender is living, which could make that person a greater risk.

Still, migrating offenders can pose a risk to employers. If an employer runs a sex offender registry check in their state, that check could miss an offender who recently moved there unless the offender has complied with law enforcement reporting requirements. Employers can use address history checks and order additional criminal history checks in other states or counties to minimize the risk of overlooking a past sexual offense. Sex crimes cataloged in a sex offender registry should also be a part of the criminal record.

What’s included in the registries

Sex offender registry checks are not the be-all and end-all of preventing #MeToo issues in your workplace. Many people who commit sexual harassment or sexual assault in the workplace have never been convicted of a crime. However, employers do have good reason to look for a history of sexual abuse in a candidate’s past, and sex offender registries can be a helpful way to do so. Sex offender registry listings typically include a variety of information, including a picture of the offender, identifying characteristics (such as height and eye color), the person’s current living address (and their work address, if applicable), the crime for which they were convicted, and their offender status.

Red Flags

One of the challenges of preventing sexual misconduct in the workplace is that red flags of this type of behavior can be difficult to spot. Obvious issues like a history of criminal sexual conduct are relatively rare compared to rampant sexual misconduct in the workplace. Typically, the red flags employers should seek are subtler and easier to overlook. 

One significant red flag to keep an eye out for is whether the candidate has had issues with sexual misconduct at a former workplace. Unfortunately, this information isn’t always readily available. Previous employers tend to be tight-lipped when discussing an employee’s reason for leaving, lest they face a lawsuit for libel or defamation. Reference checks are more likely to reveal this type of information. Talking to past supervisors or colleagues about a candidate’s behavior at a previous job can uncover patterns of inappropriate behavior, disrespect for women, or other red flags.

In addition, employers should watch for verbal or body language cues during the interview that might indicate problems ahead. Most candidates try to be on their best behavior in a job interview, which means a red flag as clear as a sexist joke is unlikely to surface in that environment. However, following some of the suggestions provided earlier in this white paper –by raising topics of company culture, teamwork mentality, gender or race equity, respect for coworkers and leaders, and other similar cultural issues – can push a problem candidate to give off verbal or nonverbal cues about how they truly feel about those questions. Someone who seems uncomfortable about discussing culture may be uncomfortable because they have caused problems at a previous workplace.

Positive Company Culture

The good news is that there is more to creating a positive company culture than only hiring the right people. While a hiring process is a foundational part of building a strong and equity-driven culture, that doesn’t mean the battle is lost if a “bad egg” slips past your defenses and ends up on your team. Establishing specific and rigorous expectations for equity in the workplace, respectful interpersonal relationships and communications, and the overall work environment can go a long way toward preventing #MeToo issues from taking root in your organization. Zero-tolerance policies for inappropriate jokes or other “microaggressions” can help avoid bigger sexual harassment or sexual assault problems.

It’s also important for organizations to put systems in place that help employees recognize sexual misconduct and report it. Company-wide training about appropriate workplace interactions and communications is crucial, as is a system for employees to report sexual misconduct to their superiors if they experience it or see it happening. That system should have multiple reporting pathways if the employee reporting an allegation of misconduct reports their superior. Finally, employers should have protocols for how they will investigate misconduct allegations and what the consequences are for those guilty of inappropriate behavior. All these protections and policies can help create a safer workplace and a more positive company culture simultaneously.

Conclusion

By opening conversations about sexual misconduct and abuse, the #MeToo movement has helped show just how common sexual harassment and assault are in the workplace. Sometimes, misconduct occurs in blatant ways, such as a male supervisor asking a female subordinate for sexual favors in exchange for a promotion. Often, though, sexual misconduct on the job is subtler, like a company culture that allows inappropriate sexual jokes to be a part of the office environment or a “boy’s club” atmosphere that shuts women out of opportunities and respect.

#MeToo has also shown how much employers stand to lose by allowing bad actors to get away with misconduct without punishment. From lawsuits to complete branding meltdowns, the stakes are high regarding #MeToo and the employer’s obligations to do better in ensuring that all employees have a safe and equitable workplace. While fulfilling that obligation is not as easy as a background check of sex offender registries, there are steps that employers can take to move toward a future without workplace sexual misconduct. 

Hopefully, this white paper has provided some ideas for how your organization can improve. If you need additional help – whether in planning a background check sexual misconduct strategy or simply talking through some of the legal requirements you face – backgroundchecks.com is here to help. Check out our background check services today to learn more.