The EEOC and the #MeToo Era: Is the Budget Increase Enough?

Posted in: Employment Law

There was good news for the EEOC this week when it received an increase of $15 million in its budget. It now has $379.5 million for fiscal 2018, which is more than it requested. The increase has been attributed to the demands of the #MeToo movement. It is not hard to believe that it might feel strapped with the knowledge that so many who had previously been silent are now speaking, a fact that movement founder, Tarana Burke, emphasized in her address to Iowa State recently.

I wonder, though, whether it is true that increased demand at the EEOC is really attributable to the movement. As usual, empowering those who have been subjected to sexual misconduct is not an easy task. Disclosure is never enough, because the system has been rigged to ensure that the powerless have few paths to power. In the context of employment discrimination, what few understand is that employees who would allege a violation of their civil rights in the workplace have a very short period of time to do so: either 180 or 300 days from the date of the discrimination.

Think about it: ten years ago, your boss commented every single day that he liked your body.  You were paid well, you were supporting a family and had a mortgage. Other than these obnoxious comments, you really liked the job then and now, and God knows, you needed it.  You assumed that if you reported him your next job might be hard to find and, besides, the potential upheaval really wasn’t worth it—or at least that’s what you told yourself.  You started getting headaches from clenching your teeth while you were sleeping, but you told yourself that there are lots of stressors in life.  So you never turned him in, and while he’s no longer your direct supervisor so he hasn’t had a chance to make a comment in over a year, you know he’s still in the building.

Then it’s Fall 2017, and Harvey Weinstein and the #MeToo movement take off.  You do what feels right in this moment: you tell the company. It’s liberating, you commiserate online with thousands and in private with many friends and coworkers. Like the victims of clergy sex abuse that poured forth after the Spotlight report on the Boston Archdiocese, you learn the cruel reality of most laws surrounding sexual misconduct: the statutes of limitations are constructed to keep you out of court and your boss working. Since you can’t file a lawsuit, the next step occurs at the pleasure of the company.  If you’re the only one, the company may take no action whatsoever.  If there are others, it may well fire him so as to avoid future liability, but you’re not going to get justice.

How did we get into this predicament where we feel compelled to create rights for the downtrodden and we now encourage them to come forward, but have a legal system that just blocks them?  The answer is that when the civil rights laws were passed, the liberals exulted but the conservatives got busy with the procedural hurdles that would make it difficult to enforce the laws. There is little that is more effective in blocking a claim than a short SOL.

For those who are coming forward, it is true that there needs to be a community of acceptance and support, as Burke has advocated. But it is also true that without legal reform, the power relationships that have perpetuated sexual misconduct all these years will not be broken.

One need not look far to see how the public shaming that is now part of the #MeToo movement doesn’t reform the perverse system. President Donald Trump only let favorite aide, Rob Porter, go when it became public knowledge that he was credibly accused of domestic violence. Until then, he apparently didn’t care, and that is perfectly consistent with the power constructs in place. But the #MeToo movement purports to break those bonds in some way. Yet, mere months later, he has reportedly considered bringing Porter back into the White House. Movement or not, neither seems capable of seeing beyond their own sense of male entitlement.

The same is true for the Catholic bishops who relentlessly fight reviving the expired SOLs of their Church’s own child sex abuse victims and the insurance companies who speak softly on these issues but carry a very big lobbying stick. Victims can come out of the woodwork and point fingers that implicate them in thousands of cases, and they still march right into state capitols like New York’s with a sense of entitlement in the old order that Republicans too easily buy.

The bonds that weigh so heavily on the victims of sexual misconduct simply can’t be broken with shaming the perpetrators and acknowledging the victims. The law must change, and it must reset the balance of power.

Till then, the needs of the victims will remain untreated, and the promise of a new day for them is too likely to be broken by a society that has been built on the debasement of children and women and the empowerment of men. Those are facts.

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