In October 2017, Harvey Weinstein was exposed by the New York Times as a sexual predator. Before Harvey Weinstein, there had been, among others, Roger Ailes, the CEO of Fox News, and Bill O’Reilly, a Fox News television host, both of whom were terminated after revelations of serial sexual harassment of female employees, made possible in part by secret settlements along the way totaling tens of millions of dollars—O’Reilly personally paid $32 million to a single complainant. But for some reason, it was the investigative journalism into Harvey Weinstein’s reign of terror that ignited the #MeToo movement, in which women around the world used that hashtag to identify themselves as survivors of sexual harassment or assault. Actress Alyssa Milano encouraged them to use this identifier—as Tarana Burke had done more than a decade earlier through a non-profit designed to help women of color who had survived sexual assault. Milano’s encouraging tweet in 2017 woke a sleeping giant.
The Immediate Impact of #MeToo
The most visible aspect of #MeToo movement is the firings—hundreds of high-profile men across many sectors of the economy were fired due to credible (or proven) accusations of sexual harassment. Longtime public radio figure Garrison Keilor was fired. Judge Alex Kozinski retired to avoid a judicial conduct inquiry after fifteen women, including several former clerks, came forward with allegations of sexual misconduct. Democratic Senator Al Franken resigned from the U.S. Senate. Documentary filmmaker Morgan Spurlock was accused of sexual harassment and rape; he stepped down from his production company; and he acknowledged he was “not some innocent bystander” in the sexual harassment crisis. Chef Mario Batali was accused of inappropriate touching; he was fired by ABC and stepped away voluntarily from his businesses; and he was “deeply sorry for any pain, humiliation or discomfort I have caused to my peers.” Matt Lauer, the co-host of The Today Show, was accused of sexual assault; he was fired by NBC; and while claiming that some of the reporting was “untrue or mischaracterized,” he admitted there was “enough truth in these stories to make me feel embarrassed and ashamed.” The list goes in and included, notably, U.S. Representative John Conyers Jr., television personality Charlie Rose, comedian Louis C.K., actor Kevin Spacey, and NPR news honcho Michael Oreskes. One study found that 417 high-profile executives and employees, from across the American labor force, were accused of harassment in the first eighteen months after the Weinstein bomb was dropped, sixty percent of whom were fired.
The Longer-Term Effects of #MeToo
These high-profile firings were the beginning of the story rather than the end. The #MeToo movement has revealed the pervasiveness of harassment, the power of social media to amplify victims’ voices, the perceived safety in numbers that fueled an increase in reporting, and the need for collective action. It also revealed other forms of gender inequity—and the hostility of men worried about accusations of harassment, true and false. But beneath these broad social and cultural themes, #MeToo has helped expose that despite laws that have treated sexual harassment as an actionable form of discrimination for almost forty years, sexual harassment in the workplace is disturbingly common. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure of sexual harassment doctrine was in place by the end of the 1990s. The law, in broad brush, prohibits sexual harassment in the workplace and gives its survivors access to a variety of remedies when the employer permits it to happen. But today, almost four decades after the law first categorized sexual misconduct as a form of unlawful discrimination, an average American workplace can feel remarkably like a saloon in the Wild West.
Why hasn’t the law been more effective in eradicating sexual harassment or remediating the harm to victims? In broad brush, the law rewards employers for making cosmetic efforts to prevent and correct harassment, but does not, by and large, consider whether they work. Under the rules of employer liability set forth in two 1998 Supreme Court opinions, Faragher v. City of Boca Raton and Burlington Industries v. Ellerth, employers have strong incentives to maintain policies and procedures on the books, but little incentive enforce them effectively. Employers have even fewer incentives to take steps that would make a bigger difference, such as evaluating their own situation through a climate study and addressing the organizational climate that might be enabling or promoting harassing behaviors. The #MeToo movement, on the other hand, has put external pressure on employers to do better because sexual harassment scandals can cost them clients, advertisers, votes, and so on. (Some of these effects are explored here.) As Catharine MacKinnon, the foremother of sexual harassment law, wrote in a New York Times op-ed, “[T]he #MeToo movement is accomplishing what sexual harassment law to date has not.”
But as the movement concludes its second year, we should consider what legal or structural reforms might better address the problem that has been exposed. While the law cannot necessarily change attitudes about women in the workplace or eliminate unwelcome sexual behavior entirely, it could do a better job of holding employers responsible for harassment.
Law Reform Efforts in the Wake of #MeToo: Focus on New York
The law might seem like an obvious place to start reform efforts, but there has been relatively little activity in that arena. The current rules of liability for harassment (discussed, among other places, here) conceal many land mines for victims and too many safe harbors for employers. We could revisit known legal obstacles like Title VII’s short statute of limitations, the lack of individual liability for harassers, weak protection against retaliation, and so many others.
At the federal level, the only change so far is a new law that forces members of Congress to pay out of pocket for certain sexual harassment settlements and court judgments, rather than using taxpayer-funded accounts that fund congressional office budgets. The GOP-control of the U.S. Senate all but forecloses the possibility of any additional reforms before the next election.
State legislatures have been more active than Congress in addressing the issues highlighted by #MeToo stories. (Perhaps ironically, state legislatures have also been exposed as hotbeds of harassment.) Some states moved quickly to pass laws making it easier for harassment victims to come forward—and harder for those credibly accused to hide the behavior. California, by way of example, did both. It passed a law granting whistleblower protections to legislative staff members, who were unprotected by existing laws that applied to other state employees, after revelation of a culture of sexual misconduct in the state legislature. It also passed a law narrowing the legal use of non-disclosure agreements in cases involving sexual harassment or assault.
The New York legislature has passed a sweeping set of reforms (A8421/S6577) designed to fix the specific pieces of discrimination law that allow sexual harassment to go unpunished. The bill includes the following key provisions:
- It expands the definition of “employer” in the anti-discrimination law to cover employers of any size. Under prior New York law, only employers with five or more employees were bound by discrimination laws. (Under Title VII, the main federal anti-discrimination law, only employers with at least 15 employees are covered.) This matters because many people work for very small employers, and they are sometimes most at risk for being assaulted or harassed.
- The bill extends protection from discrimination (including harassment) to non-employees such as independent contractors, consultants, and vendors. Under federal law, these groups have no protection. Under a relatively new prior law in New York, they were granted protection just from sexual harassment. But now they will receive the broader protections of anti-discrimination law. This will include domestic workers, who have been previously left almost completely without labor or employment protections (and sometimes subject to terrible abuse). The coverage of independent contracts is especially important in some industries where work is often done outside of traditional employment relationships—entertainment, journalism, lobbying, and so on. This issue has become increasingly important with the development of the “gig economy,” in which even more people are working as independent contractors.
- The bill modifies the affirmative defense to liability established in Faragher/Ellerthfor Title VII claims and followed by many states under their own anti-discrimination laws. The affirmative defense permits employers to avoid liability or damages for hostile environment harassment by supervisors if they can show both that they took reasonable measures to prevent and correct sexual harassment and that the victim failed to take advantage of corrective opportunities made available to her. That second prong has been construed by many courts in ways that are unfair to harassment victims—prohibiting them from pursuing claims even when a delay in complaining or a failure to file an internal complaint was entirely reasonable under the circumstances. This new law eliminates that prong of the affirmative defense for claims brought under New York law (though not under Title VII). It does permit employers to avoid liability for harassment that “does not rise above the level of what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”
- The bill eliminates a significant obstacle to successful harassment lawsuits. Under the Supreme Court’s articulation of the doctrine (again, followed by many state courts with respect to their own statutes), harassment is not actionable unless it is severe or pervasive. Sandra Sperino and Suja Thomas make a compelling case in their bookUnequal: How America’s Courts Undermine Discrimination that the definition of sexual harassment itself is part of the problem, as courts have used the “severe or pervasive” element of existing doctrine to excuse all but the most extreme forms of harassment. This change in New York law should make it easier for sexual harassment plaintiffs to survive summary judgment, the point at which an inordinate number of claims are resolved in favor of employers without the benefit of a full factual record.
- The bill extends the statute of limitations for filing a sexual harassment complaint with the relevant agency (a prerequisite for pursuing a lawsuit in court) from one to three years. As explained herein more detail, Title VII has an absurdly short statute of limitations that makes it difficult for employees to pursue valid claims. This is especially true with hostile environment harassment, in which it might take time for the behaviors to accumulate or worsen sufficiently to trigger a complaint.
- The bill makes it harder for employers to hide harassment problems through non-disclosure agreements and private arbitration. In many of the high-profile cases of the last few years, men were able to continue preying upon women for years, even decades, because their employers were secretly settling or arbitrating harassment claims. Under the New York law, employers are forbidden from using or enforcing mandatory arbitration clauses for all discrimination claims. Employers are also restricted in their use of non-disclosure agreements (NDAs). NDAs can be used to settle a claim of discrimination only if it is the complainant’s preference (victims often prefer secrecy to avoid the retaliation and stigma that comes with pursuing even a valid, successful discrimination claim) and the complainant is given sufficient time and opportunity to consider a non-disclosure provision before accepting it. NDAs must also make clear that the complainant is able to disclose relevant information to any governmental agency, including the police or the EEOC, or to her attorney.
- The bill also makes clear that the laws against discrimination should be construed broadly to remediate harm to victims, regardless of how similarly worded federal laws are construed. This is important, as pointed out a few times above, because federal courts have narrowed the protections under Title VII in ways that have made it difficult for plaintiffs to get relief for sexual harassment.
With this law, New York adds to its reputation as a leader in protecting the rights of women. As explained in earlier columns (here and here), the state has taken a series of concrete efforts designed to promote equality for women. This new bill is a well-crafted response to the gaps in sexual harassment law exposed, in part, by the #MeToo movement.
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