Sexual Harassment: Employment Liability Tipping Point

From Hollywood mogul Harvey Weinstein to famed television journalist Matt Lauer, to thousands of others speaking out through the social media movement #MeToo, sexual harassment allegations from individuals who claim to have been victimized by their employers and colleagues continue to surface.

The insurance industry is expecting a wave of employment practices liability insurance (EPLI) claims to roll in following the recent storm of sexual harassment allegations in entertainment, media, hospitality and other industries.

The current period represents a tipping point, according to Patrick Mitchell, management liability product head at Hiscox.

“In the past, employees feared retaliation and may not have reported harassment,” he said. Recent attention is likely to ease those fears. “So while retaliation is definitely possible, it appears now employees have the courage to report regardless of the consequences.”

Insurance experts say no industry or company is immune. While the initial wave of EPLI claims is likely to target high profile and large companies, there is the potential for a trickle-down effect on other industries, experts say.

“We’ve seen a lot of headlines for particular industries (entertainment/media), but the truth is, sexual harassment allegations can happen in any industry and in companies of all sizes,” Mitchell said.

“I think we’re seeing the tip of the iceberg,” agrees Jared Zola, a partner and insurance recovery expert at the law firm Blank Rome. While today it’s high-profile alleged bad actors being targeted who are very public figures in politics, media and entertainment, he thinks there will soon be “a flood of claims from employees or former employees at companies in every industry of every size.”

The likelihood of an employer being hit by a discrimination charge of any kind is higher than employers may realize. In 2016, U.S. companies had at least a 10.5 percent chance of having an employment charge filed against them, according to The Hiscox Guide to Employment Lawsuits, which was compiled using the latest data on employment charge activity from the Equal Employment Opportunity Commission (EEOC) and its state counterparts. Employment charges are often the first step toward employment suits. Employment discrimination charges can be based on race, sex, disability, age, national origin, religion, color and others in addition to sexual harassment. Most employers with at least 15 employees are covered by EEOC laws.

EEOC data from 2016 show that retaliation is the most common discrimination charge filed and is named in nearly half of all charges (45.9 percent). However, in many cases, more than one category can be cited in an EEOC discrimination filing.

Watershed Moment

Rick Betterley, president of Betterley Risk Consultants Inc., and author of The Betterley Report, believes this period will be seen as a watershed moment similar to what happened in 1991 when Anita Hill accused Clarence Thomas, President George H.W. Bush’s Supreme Court nominee, of sexual harassment when the two worked together. Betterley sees this moment as a significant turning point not only in U.S. employment, but also in employment-related insurance.

While the recent surge in sexual harassment allegations has not yet translated into claims, it’s most likely only a matter of time before the EPLI claims start arriving. When they do, there is most likely to be coverage for those employers that have purchased EPLI coverage.

“This is not a situation with an insurance company saying, ‘We never planned on covering that.’ They did plan on it. They wrote the policies to cover it. EPLI grew out of the Clarence Thomas hearings and Anita Hill’s testimony. That’s a big part of where this coverage started,” Betterley said.

At the same time, he believes the insurance industry can handle the claims. “It could be a big deal for the line, but I don’t see it as wrecking the line either,” he said.

EPLI has been a mature market for many years, with growth averaging 4.4 percent over the past four years in the United States, according to Betterley’s recently released Employment Practices Liability Insurance Market Survey 2017.

Potential Claims

Betterley foresees most claims activity stemming from the recent storm in sexual harassment allegations targeted at larger and/or prominent employers and suggests they may even be limited to only higher risk industries.

“There are some industries where you would say that the underwriters are already looking more carefully, thanks to the last couple of months, than maybe they would have been before. Entertainment’s one of them,” he said.

Underwriters are also likely to closely watch companies whose leaders have a more visible public profile.

“Let’s say it is an investment banking firm (with a high-profile CEO). … As an underwriter, they’re already paying closer attention to those industries or scenarios … the famous person or the entertainment person, but now they’re paying even closer attention,” Betterley said.

However, the insurance effects will not be restricted to industries being more closely scrutinized by underwriters. The problem of sexual harassment will eventually spill into all industries, according to Betterley, because employees who believe they’ve been harmed are now less likely to remain silent than before the current outpouring.

“If they brought a case against the employer, they perhaps didn’t have a great lawyer, maybe they settled for $25,000, or didn’t really push the allegation at all,” Betterley said. “Now, they’re reading about people getting millions and millions of dollars (in settlements). They’re saying, ‘I’m not going to settle as easily as I might have before.'”

Betterley compares it to what the insurance industry saw in the medical liability market years ago.

“I remember having a client say, ‘Our typical med-mal claim used to be $800,000, but people have been reading about lottery winners and CEOs with tens or hundreds of millions of dollars of compensation.’ All of a sudden, $800,000 is ‘paltry.’ Well, no, it’s not, but if you believe it is, then you won’t settle as quickly,” he said. “I think the same thing will happen with EPLI.”

Coverage

The industry will feel the impact because there’s not much dispute that sexual harassment is covered as a wrongful practice under an EPLI policy.

“The policy provides coverage for a wrongful employment practice, which is a defined term. One of the prongs of what a wrongful employment practice is, is sexual harassment,” Zola said.

The definition of sexual harassment under an EPLI policy can be some “actual or alleged sexual advance that is unwelcomed, that has a purpose of creating an intimidating or hostile work environment,” Zola explained. This can encompass a broad set of circumstances, however, where there’s unwelcomed attention brought on an employee by another individual at the company that creates an uncomfortable work environment. That circumstance is probably enough to trigger coverage, according to Zola.

Joe Kelly, vice president and employment practices liability practice leader at Sompo International, a Bermuda-based global specialty insurer and reinsurer, agrees that there’s no question that sexual harassment is covered under EPLI policies.

“The EPLI contract is very straightforward in covering claims of sexual harassment so there’s no coverage issue,” Kelly said.

However, one issue that could affect the recent wave of sexual harassment allegations is the statute of limitations for coverage to be triggered.

The statute of limitations for filing a discrimination charge with the EEOC is 180 days. The statute does vary by state so it’s possible there’s a window of opportunity to file in a certain state beyond the 180 days, Kelly stated.

Some claimants are choosing to file under RICO (Racketeer Influenced and Corrupt Organizations Act), which does not expressly establish a period of limitations. “We saw this with some of the Weinstein claims and now there’s a group of women bringing a claim under RICO,” he said. “That’s one reason why they might bring charges under RICO.”

Another reason claims might be filed under RICO, according to Kelly, is that damages can be much higher.

Sexual harassment coverage is commonly broad, with no sublimit for sexual harassment, according to Marie-France Gelot, senior vice president of the insurance and claims counsel at Lockton. Coverage under an EPLI policy goes to both employees, and in most policies today, also for third parties including clients, customers and vendors. “It’s not just employees, it’s a vendor of the company, a customer of the company.” Any party – employee, customer, vendor – alleging they are sexually harassed by someone from the insured employer can trigger coverage, she said.

Some policies provide broader coverage than others, so it’s important for employers and their agents and brokers to review all terms and conditions, she said.

For example, many EPLI policies have bodily injury exclusions, but some don’t, notes Gelot. “The bodily injury exclusion in a sexual harassment conversation would draw a very hard line if harassment leads to something like rape,” she said. “But I’ve had cases where you had a rape by an employee that the EPLI insurer has had to cover despite the fact that the company didn’t want the carrier to cover it. The carrier had to cover it because there was no bodily injury exclusion, and the coverage was so broad.”

Another example, according to Zola, is that coverage could possibly be voided if certain individuals in a workplace knew about the alleged harassment.

“The real question is going to be who does the policy identify as being a person whose knowledge is sufficient to exclude coverage,” Zola said. “The language is different on policies, but some typical language is fact, circumstance, situation or event that reasonably would be regarded as a basis for a claim. That language being imprecise, I think, is fertile grounds for factual disputes as to when a company or officers or directors of a company should have known that a claim was likely based on the knowledge they had at the time.”

Zola says this can be seen in the media allegations that some “bad actors” had certain reputations for activities that would be considered sexual harassment. “The question is who at the company knew about that reputation and whether rumor and reputation are sufficient to exclude a claim based on the policy language,” Zola said.

The size of the claim makes a difference when it comes to knowledge-based exclusions, he added.

“The claims that I’ve handled in the past involving sexual harassment allegations, there was no media spotlight on them, and so, there wasn’t this deep-dig by the media and by the public into what people at the company knew or didn’t know about the allegations,” Zola said. Even so, an employer’s knowledge of harassment by an alleged harasser is a defense that the insurance companies will pursue through discovery rather than in the media, he said.

Other lines of insurance, including directors and officers (D&O), could potentially be involved as well.

“The idea with D&O policies is, especially for public companies, if there are widespread allegations, that the directors or officers failed to protect their fiduciary obligations to the shareholders by allowing a culture of impropriety,” Zola said.

When allegations are made, stock prices may drop, which can lead to “very serious derivative suits” that could be covered by D&O insurance.

Zola says general liability could be another line to come into play for allegations of bodily injury in certain states. According to Zola, in states like New York, sexual harassment can rise to a level of emotional distress even without any physical touching. “This is considered bodily injury, as that word is used in a general liability policy. In all states, physical touching that leads to damages is considered bodily injury,” he said. “It depends on the allegations by the claimant, but it could implicate both of those lines as well.”

In Kelly’s view, general liability would have excluded this type of coverage, but the D&O coverage could play a role as it can in cyber.

“We saw this with cyber where there were cyber breaches but then there were follow-on derivative suits brought on behalf of the company against the board of directors for failing to put the proper controls in place to prevent a breach,” said Sompo International’s Kelly. “You could have the exact same type of derivative suit for failing to supervise the CEO of the company who is a known harasser or failing to remove that person if there was a known event that occurred, and the board didn’t act appropriately.”

Time to Review

Lockton’s Gelot said this is a time for employers and agents/brokers to review policy wording carefully.

“You have some policies today that have specific wording meant to narrow the scope of covered sexual harassment – and those policies would drive a clear distinction between behavior that is insurable versus behavior that is so egregious that to insure it would be offensive or outright against public policy,” she said. That might include wording in some policies that the policy will cover “everything except harassment that is deemed licentious or immoral or sexual abuse or exploitation or abuse of child.” Not all policies contain such wording, she said.

EPLI Going Forward

The disturbing recent spate of workplace sexual harassment complaints could have positive effects for the industry and the EPLI market as well, experts say.

“Anytime there’s a major event in any line of insurance, it always raises awareness,” said Kelly. “Major senior level execs and the boards are even being called out on what they are doing (to prevent such behavior) and they are asking what kind of EPLI coverage do we have?”

These executives better make sure that they not only have EPLI coverage, but also that their limits are adequate, Kelly said, noting that this type of questioning is going to drive more demand in the market and potentially higher limits.

In 2016, gross written premium for EPLI was $2.1 billion, according to MarketStance, and it estimates a possible bump to $2.3 billion or more for 2017-2018.

There are many smaller employers that still do not purchase the coverage. Roughly seven out of 10 businesses don’t carry EPLI, according to TrustedChoice.com.

But just how market growth will be affected following the attention on sexual harassment in the workplace remains to be seen, Betterley said. Small commercial accounts, while forecast to grow most rapidly over the next year, have the lowest take-up rates for EPLI coverage, he said.

“I think it (the recent attention) will have an impact,” Betterley said. “I don’t know that I’ve seen it just yet. One impact perhaps is that if you’ve got a potential insured that has not been buying EPLI, now they will want to buy.”

Those employers that haven’t purchased the coverage might get a tougher reception from insurance markets, he added. “The underwriter is going to be really interested in the why now? A good answer, I guess, would be, ‘Have you read the newspaper?'” While insurers may be glad to gain more insureds, they may be more cautious about taking on employers that until now haven’t been buying coverage, he said.

Hiscox’s Mitchell says it’s difficult to predict how EPLI insurers will react to a rise in sexual harassment claims in 2018, but it’s likely to be a mix of changes in premium rates, retentions and restructuring coverage. For now, one thing is certain. “It’s something all insurance companies will be monitoring closely,” he said.