The Aftermath of the #MeToo Movement

Posted in: Employment Law

Not even a year has passed since the New York Times first published its story with multiple, serious allegations of sexual harassment and assault against Hollywood mogul Harvey Weinstein. This #MeToo movement restarted a week later, on October 12, when actress Alyssa Milano invited people to reply to her tweet with “me too” if they had been sexual harassed or assaulted. The phrase dates back to 2006, when it was invoked by Tarana Burke as a tool for women and girls of color who had survived sexual harassment or assault. But through its re-use in 2017, at a moment that captured the public’s attention and passion, #MeToo has taken on a life of its own. What’s different now?

#MeToo, Crowdsourcing, and the Tool of Public Pressure

From an institutional perspective, sexual harassment has always been treated like a legal problem. Employers manage their risk of being sued for sexual harassment much like they manage their risk of a workers’ compensation claim or a fire or any type of lawsuit. Sexual harassment is bad, in this world view, because it might lead someone to bring a lawsuit under Title VII or some other applicable anti-discrimination statute. What that translates to in practice is a set of precautionary and reactive measures that align closely with the rules of liability for sexual harassment. (The key rules of liability are summarized here.) Employers turn to policies, procedures, and training as the means of preventing and responding to sexual harassment because those are the things that courts reward when assessing liability.

The landscape has shifted, however, perhaps seismically, although it’s too soon to tell. Employers must now assess the risk not only from potential lawsuits, but from a variety of other external sources. The #MeToo hashtag has been used millions and millions of times; no form of social media is immune from #MeToo shares and re-shares. Media stories abound about sexual harassment (and sexual harassers), and, in some industries, people crowd-source spreadsheets to document harassment. “Shitty media men” is the first of the genre, which will undoubtedly be copied in other industries. The more people tell their stories, the more other people will tell their stories. The more stories are told, the more the tellers are believed. For a typical employer, the damage from a high-profile outing on social media or in the newspaper would dwarf the damage from a lost civil rights arbitration or lawsuit. As Catharine MacKinnon so wisely observed in a recent New York Times editorial, “[T]he #MeToo movement is accomplishing what sexual harassment law to date has not.”

Truth and Consequences

A recent study found that 417 high-profile executives and employees, from across the American labor force, have been accused of harassment in the last eighteen months. Although Weinstein’s outing as a serial sexual abuser and Alyssa Milano’s #MeToo tweet were not until October 2017, the high-profile scandals involving first Roger Ailes and then Bill O’Reilly at Fox News started some of this in motion. To make this list, a harasser had to merit at least seven national news mentions for sexual harassment—a mark of the person’s notoriety and interest to the public. The list includes celebrities, to be sure, but most are high-level executives—a surprising number of CEOs—who are not household names. A substantial number have been fired or suffered some other sort of formal repercussion.

Many of the accusations are based on behavior from the past—a natural flood-letting after years during which victims stayed silent and employers swept credible complaints under the rug in order to preserve the harasser’s career or avoid a hit to the institution’s reputation. But we should expect higher rates of complaint—and discipline—to continue even after the initial flood because the climate has made it safer for victims to complain and less safe for employers to ignore. That study mentioned above found that although the initial spike in complaints has subsided, the rates per month still far exceed the pre-Weinstein levels.

Sexual Harassment Is Neither a Thing of the Past, Nor an Isolated Behavior

Sexual harassment remains prevalent, despite decades of efforts to stop it. A 2016 report of an EEOC Task Force found that 60 percent of American women surveyed reported having experienced sex-based harassment. In any two-year period, four in ten women will experience at least one instance of harassment. These rates have held steady over several decades, and, as much as we might like to think it will dissipate eventually, millennials report higher rates of harassment than anyone else. Ninety percent of harassment victims in any setting are female, and half of male victims complain about behavior of other men. Harassment often occurs in tandem with sexist remarks and hostility, and the majority of bullies are also men.

Researchers have always known—and been able to prove—that sexual harassment does not occur separate and apart from other types of gender inequity. Sexual harassment is more common in work forces with poor gender integration. People with highly stereotyped attitudes about gender score higher on the “likelihood to sexually harass” scale. Victims are less likely to complain about harassment when they are greatly outnumbered by men at work. Women of color are more likely to be harassed than white women. These are just a few of the data points that show the interrelationship between sexual harassment and other types of inequality. But one side effect of the #MeToo movement is that other stories of racial and gender inequality may gain more traction. Recent surveys that the vast majority of respondents believe is more symptomatic of “widespread problems in society” than the product of individual bad actors, and most agree that while the issue of sexual harassment is “very important” sexual harassment is just one symptom of a larger set of gender problems. If one looks, there is plenty to see. Occupational segregation remains entrenched; the gender wage gap is stark and hasn’t lessened much since the 1980s; women do not advance at the same rates in most occupations nor reach the same heights as their male counterparts; and studies abound showing the persistence of implicit and explicit bias in addition to the vestiges of past discrimination. The fact that there are more CEOs of large companies named John than there are women (of any name) is telling.

Will Things Change?

There are many obstacles to change in the sexual harassment context. A core problem is that the typical employer’s approach to preventing and correcting harassment relies on victim reporting—a system endorsed and incentivized by the Supreme Court in a series of cases about sexual harassment liability. But most harassment victims do not report incidents of harassment to an authority figure inside or outside the workplace. Reporting is, in fact, the least common response of women who experience harassment—something only 8-15 percent of them do. Increasing reporting is no easy task, however. Women who do not report harassment cite futility—the belief that nothing will be done to fix the situation—and the fear of retaliation as their primary reasons for keeping quiet. When a woman makes this calculation and concludes that the benefits of reporting are outweighed by the costs, she is often right. Studies show that discrimination victims who file formal complaints end up worse off than those who don’t.

The #MeToo movement may address the futility concern, since employers feel greater pressure to take action in response to complaints—and might be held accountable at least by the public if the measures they take are merely calculated to minimize liability rather than to stop the harassment from recurring with the same or other victims. But it is too soon to tell.

In addition to the greater number of firings noted in the recent study, there is other evidence that business-as-usual might not be tolerated as much in the future. Several institutions are taking a close look at their own practices and proposing or mandating reform. To take just a few examples, the ABA House of Delegates passed a resolution urging a variety of changes in legal profession employers. The National Academies of Science, Engineering, and Medicine has just published a comprehensive and wide-ranging report, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine. Other professions and academic associations have redefined professional misconduct to include sexual harassment. Several states have passed or considered bills to limit the use of non-disclosure agreements in sexual harassment claims. It’s too early to take stock of the changes because the lasting and effective ones might be few and far between. But it is safe to say that sexual harassment is being taken more seriously by a variety of institutional players.

The Backlash Is Real

As with any social movement, the change is not all in one direction. The increased pressure and escalated discipline come with gender sidelining—minimizing the risk of a sexual harassment accusation by limiting contact at work with women. This is a well-documented phenomenon, which has become more common in the wake of #MeToo. The Harvard Business Review found that 64 percent of male executives were reluctant to meet one-on-one with junior female colleagues, while a New York Times survey found that 45 percent of men felt it was inappropriate to have dinner alone with a female co-worker and 22 percent at a meeting. While it is an actionable form of discrimination to refuse to work with women or assign them work on the basis of sex, these practices are pervasive and hard to prove. Avoidance can be devastating to a woman’s career, especially when her success depends on networking, mentoring, or business-building.


Although the sexual harassment happenings of the last year have been dizzying in number and style, this is only the first chapter. We must now move to the harder steps of reconsidering how best to prevent sexual harassment while protecting women’s career opportunities.

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