On July 14, 2018, Katherine Witherspoon Fry was interviewed on WILM 1450/ WDOV 1410 radio station about sexual harassment in the workplace as well as new legislation in Delaware regarding sexual harassment. She then discusses what some companies are doing in response to recent events involving loitering. If you’d like to listen to the interview or read the transcript, please see below.

Questions about sexual harassment and sexual orientation in the workplace? Contact Katherine Witherspoon at kwitherspoon@offitkurman.com

Dace Blaskovitz:
Welcome back to Money and Politics in Delaware.  Welcome back, Katherine Witherspoon Fry.

Katherine Witherspoon Fry:
Hi, nice to be here Dace.

Dace Blaskovitz:
Yeah, we have a new name these days.  Congratulations on the marriage.

Katherine Witherspoon Fry:       
Thank you.  Married to one of your special guests Robert Fry, the economist.

Dace Blaskovitz:             
Absolutely, here we go, but you are our guest today, and Katherine Witherspoon Fry is an attorney.  She is also a principal.  Her firm is Offit-Kurman.  She practices primarily in Delaware.  She is a regular to the show and she is a regular because sexual harassment just keeps growing in the volume of confusion, but I digress.  It is your turn, Katherine.  30 seconds about you, 30 seconds about your practice.

Katherine Witherspoon Fry:
Right, Dace.  I am a principal at the Law Firm of Offit Kurman.  We are a regional firm.  Our offices range from Virginia to New York and I principally practice employment law, although I also practice education law for parents and kids, so today we are here on my employment venue and I am happy to talk about #metoo.

Dace Blaskovitz: 
You are right.  What is—now I am putting you in front of a hypothetical eighth-grade class—what is sexual harassment and then take a pause and give us—since you better guess five-six times—give us an update.

Katherine Witherspoon Fry:      
Right.  So, sexual harassment is prohibitive by both state law and federal law, which federal law is Title VII and it basically says unwanted sexual contact which may result or may not result in adverse employment action is illegal, and what we are talking about these days mostly is hostile work environment, that is the hotter topic, which means sexual harassment which creates an adverse working condition that the normal person would find intolerable.  The other type is quid pro quo harassment, which refers to the casting couch Harvey Weinstein situation – you give me sex, I will promote you at work kind of thing.

Dace Blaskovitz: 
Delaware, Delaware, Delaware is right in the middle of this as far as a topic, what is going on.

Katherine Witherspoon Fry:      
Absolutely.  So, Delaware passed new legislation regarding sexual harassment which takes effect January 1, 2019.  It addresses the illegality of sexual harassment and then defines illegal sexual harassment using the federal law definition.  It follows the Supreme Court of the United States in defining what is harassment.  It now requires employers who employ over 50 or more employees to provide employee training, which it describes as interactive.  What is interactive?  What is adequate training?  The DOL has not issued any regulations on this, so there may be some confusion unless they act very, very quickly in a very definitive manner, but interactive training within one year of hire or one year of the statute’s effective date and thereafter every two years.  In addition, they have to provide training to supervisors.  The supervisors have to be trained not only on what is sexual harassment but prevention and correction and the illegality of retaliation which is a huge issue.  Someone may file a charge of discrimination, which is actually meritless, but if the company reacts in a retaliatory manner, demotion, transfer, anything like that, then they are on the hook for a retaliation charge, which is super important to avoid.  The law also requires employers to provide handouts now explaining this to every employee upon hire or within a certain amount of time if they are already employees.  So, this is a big step.  It remains to be seen what effect this is going to have.  I know that the training is probably going to be required to be provided by someone with certain expertise like a lawyer, an HR consultant, but again it remains to be seen because it has not been defined.  It is just sort of out there in the legislation “education and training.”

Dace Blaskovitz:    
We have to move this along.  We got two more at least one more topic, but I got to clean this up and that was in our pre-interview.  You had a couple of just startling, statistics, a 122 placed on leave, it is your story to tell, tell it.

Katherine Witherspoon Fry:     
Yeah interestingly, from March to May, 60% of 420 high-profile employees were the subject of complaints in sexual harassment.  60% of those 420 people were fired, and the criteria were at least seven separate national news mentions made someone a high-profile employee.  122 additional people other than those fired were suspended or placed on leave, so the rate of accusation has slowed, but the percent of terminations is up in recent months.

Dace Blaskovitz: 
But we don’t know how many of those actually fulfill the idea of due diligence as opposed to just witch hunt, is that fair?

Katherine Witherspoon Fry:         
That’s correct.  It could be someone crying wolf, it could be an inadequate investigation, but people are really jumping on this and they are taking it very seriously as reflected by these statistics.

Dace Blaskovitz:
No, it is no secret, that I am a huge fan of yours, but to put you on the spot, just a minute in your many visits here, you have been loud and consistent, it’s gone too far.  Share with the audience what your message is.

Katherine Witherspoon Fry:
Yeah I think that the safest policy is a no touch policy but, you know, these hugging policies, I think that does go too far so when I say safest I mean, you know, okay that’s the absolute clearest bold line and I said that before but the hugging, completely banning something like a hug which is sort of ‘Oh I’m so sorry or you’re my friend congratulations’, I would say don’t hug someone you supervise, don’t hug if you’re not sure they’d welcome the hug.  Ask before hugging.  If you don’t do it often or it is a special occasion kind of thing, don’t come in every day and say, aw, give me a hug, and, you know, let them initiate it maybe, and maybe that’s a good idea, return it gently if they initiate.

Dace Blaskovitz:       
All right, common sense wins.  Next subject.  We’re going to run out of time, tick-tock on that clock.  Define for me Ms. Attorney what loitering is.

Katherine Witherspoon Fry:  
Loitering is someone basically present in a location where they are not, a client, a customer or otherwise permitted to be in that location.

Dace Blaskovitz:
All right, now Starbucks in Philadelphia allegedly with the video cameras there or phone I think was the video had two gentlemen that happened to be of a racial minority removed from a facility because they had not purchased anything and hoopla has surrounded the last month for somebody that has not followed the story from your perspective as an attorney.  Retell it, please.

Katherine Witherspoon Fry:   
Right so, the company has been asked to develop a customer bill of rights to be displayed in each café, discouraged from calling police to ask people to leave when they won’t leave when politely asked, but honestly, there’s nothing illegal in asking non-customers to leave or forcing them to leave if that comes to that, and in my legal perspective on it, I think there’s a danger of creating a public open forum where the first amendment right to freedom of speech applies, and if you’re allowing everyone to stay all the time, you are creating sort of an open forum and that means that people would have the right to political speech and debate in Starbucks, which to me is a very interesting situation.

Dace Blaskovitz:      
Yeah, well my problem was, I was, I mean I’ve been watching this unfold on TV, the two minutes a day I watch TV in the morning, and the first thing out of my mind is, well if anybody is allowed to go anywhere at any time then I would like to sit next to the two dumdums that were the anchors on TV and pontificate if these people can walk in Starbucks, why can’t I walk on the TV station and just sit there next to the idiots whining, what do you think?

Katherine Witherspoon Fry:  
Yes.  They want to create a policy that allows anyone to hang out and does that start encouraging other people to do it.  Does that become something that’s burdensome on the business owners and obviously it would be very burdensome on the owner of a news station for you to be hanging out.

Dace Blaskovitz:
Especially if I pontificate, hey tick-tock on that clock, we’ve talked for 10 minutes, but I got to give you props on the way to the door.  How does somebody reach out to Katherine Witherspoon Fry.

Katherine Witherspoon Fry:
Well, my phone number is 302-351-0902 and by email kwitherspoonfry@offitkurman.com.

Dace Blaskovitz:  
And are you a gun for hire in this sexual harassment stuff?

Katherine Witherspoon Fry:   
Absolutely, I’m available to train, to do this interactive training that people are talking about that has to occur, to audit, etc.

ABOUT KATHERINE R. WITHERSPOON

kwitherspoon@offitkurman.com | 302.351.0902

Ms. Witherspoon has 22 years of litigation experience in every Delaware court, the U.S. Court for the District of Delaware, and the U.S. Court of Appeals for the Third Circuit. She has also represented clients in proceedings before the Delaware Department of Labor, the Equal Employment Opportunity Commission, the Merit Employee Relations Board, and the Delaware State Board of Education. Her employment practice focuses on discrimination; employment termination; unemployment compensation appeals; Fair Labor Standards Act issues; creation and review of employee handbooks and policies; severance agreements; and labor relations.

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing, full-service law firms in the Mid-Atlantic region. With over 170 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our twelve offices serve individual and corporate clients in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.

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