New Year, New Plan

Three-hundred women from the film industry—including some of the most powerful women in Hollywood—began 2018 by announcing Time’s Up, a new plan to fight sexual assault, sexual harassment, and gender inequality. This came in the midst of a national conversation about sexual misconduct in the workplace following the numerous allegations against producer Harvey Weinstein and the emergence of the #MeToo movement. Part of the initiative includes the creation of the Legal Defense Fund, which will help minimize litigation costs for survivors of sexual harassment and assault claims. The Fund will be housed within the National Women’s Law Center’s Legal Network for Gender Equity. Northwestern Law alumna Tina Tchen and Roberta Kaplan will lead the Fund.

By providing access to legal representation, the Legal Defense Fund addresses one barrier facing survivors who seek judicial remedies for sexual misconduct in the workplace. But other barriers remain, especially with respect to claims of harassment. Sexual harassment in the workplace is actionable under Title VII of the Civil Rights Act of 1964, which prohibits employers from “discriminat[ing] against any individual” on the basis of sex. Yet, one of the questions raised by the recent flood of allegations is how the men accused—who often faced allegations of serial misconduct—consistently evaded facing any legal consequences. How did the judicial system fail to provide justice to countless victims, and how did it likewise fail to prevent repeated misconduct? A survey of the realities of sexual harassment law shows that Time’s Up has an uphill battle ahead.

Dismissing Harassment

The Equal Employment Opportunity Commission receives 90,000 charges of discrimination every year, one third of which involve some form of workplace harassment, according to a 2015 report. These numbers do not even account for those who are discouraged from ever filing a complaint or bringing a lawsuit,  which the EEOC has estimated could be as high as 75% of those who experience  harassment in the workplace. This low rate of reporting is perhaps unsurprising in light of the fact that the vast majority of sexual harassment lawsuits are unsuccessful. When the plaintiff does receive a remedy, it is usually through settlement or conciliation. In cases without a settlement, under 5% it to trial, and the rest are dismissed at an earlier stage of litigation.

What accounts for these high rates of dismissal? In part, they are due to the standard the courts have developed for evaluating harassment under the law. In Harris v. Forklift Systems, Inc. (1993), the Supreme Court held that harassment needed to be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Plaintiffs must show that they subjectively felt their conditions of employment were altered by the harassment and that the conduct would be seen as objectively abusive to a reasonable person. This standard, as applied by judges at the motion to dismiss and motion for summary judgment stages, has created an extremely difficult bar for plaintiffs.

One particularly egregious example comes in Baldwin v. Blue Cross/Blue Shield of Alabama (11th Cir. 2007). In that case, a male supervisor propositioned a female employee on multiple occasions. In addition to moving his zipper up and down while referring to the plaintiff as “babe,” he also “cornered her in his office and propositioned her by saying, ‘Hey, babe, blow me.’” Nevertheless, the district court held the harassment was insufficiently severe to survive a motion for summary judgment. Cases like Baldwin create a “domino effect” of binding and persuasive precedent that make the path more difficult for future plaintiffs. This framework discourages reporting of sexual harassment and incentivizes those who do seek a remedy to forego litigation in favor of settlements and private arbitration. These settlements often include non-disclosure agreements that prevent the victim from discussing the details of the events. This, in turn, allows serial misconduct to occur, as was the case with Harvey Weinstein.

For many, the #MeToo movement has illuminated the pervasiveness of sexual harassment and misconduct in the workplace. The Time’s Up Legal Defense Fund is an important step in addressing this problem.  It faces significant challenges, however, as the current state of employment discrimination jurisprudence too often fails victims of sexual harassment. If Time’s Up really wants to change sexism in the workplace, the movement will have to start by changing the law.