“But I thought this was America, where there is respect for women’s rights.” The woman who said this to me over a decade ago was a recent immigrant to the United States, and I was a very young and very fresh lawyer. She worked at a large warehouse in the area, and a couple of her co-workers would crack lewd jokes and grab her breasts and butt. She had tolerated it for a while and then complained to a supervisor who had brushed it off. She had continued at the job but recently a new hire, a younger man, had joined the other two. Now there were three harassers, and she felt she just couldn’t take it any longer.
Over the years, I’ve forgotten the woman’s name, but her words have stuck. She came only for the initial consultation, which the civil-rights firm that I worked for provided for free. I was at the bottom in the firm’s hierarchy and so I could do nearly all of them. It was not these interviews, but the post-briefing meetings with the senior lawyer (who was a full two—as opposed to zero—years out of school) that dissipated my long-nurtured idealism. In these terse chats, the senior lawyer would ask me: How much proof did she have? Were there others that she knew of who had suffered similarly? Did her employer have a sexual-harassment policy that was posted or in a handbook? Had she complained to a supervisor? Did she have a copy of that complaint? And, much to the dismay of nearly every client who had to sit across from me in the “library” that reeked of old takeout, would she be able to pay costs?
If there was proof—a recording, a couple of people willing to corroborate and testify to also having heard the comments, or, better still, harassed themselves—if there was no sexual-harassment policy nor designated human-resource officer, then things were looking good. If she had the capacity to pay at least a little bit toward costs, we would have had a done deal. But, of course, there was never, in those initial consultations, such a done deal. Most harassers are clever enough to hide their tracks, to find their prey when they have been left behind or alone. Corroboration is even harder; witnesses fear being sent to the unemployment line. This all achieves one thing: silence.
That last bit, about costs was usually the biggest surprise. Contingency fee, to most plaintiffs, does (and should) mean that they do not have to pay until there is a payout. The hand-to-mouth outfit where I worked (my desk was in a corner of the same library and some clients “worked off” their bills by filing and making copies), did in theory take cases on contingency. Civil-rights cases involved costs that were often quite large, requiring the firm to invest not only attorney time, but also thousands of dollars to pay for transcripts of depositions and experts. The attorneys’ fees would be waived until there was an outcome but the rest of it, or at least a bit of the rest of it, required some payment. We would not reject clients because they could not pay these costs, but we would accept them a lot faster if they could.
The woman’s case, unfortunately, was not, on its face, that strong. The legal elements were all there, but there was little corroboration; she did not know of any sexual-harassment policy, but I suspected one would be fished out when her employers heard of the complaint. I had to give her the usual bad news and explain to her the difficult nature of the case, the high costs involved, our inability to keep it secret, and the real danger she could lose her job. It was not a lecture I loved, and what she said seemed right; this was America, a self-declared international champion of gender justice. Where was it in the American workplace?
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All of this happened more than a decade before #MeToo but even as heinous men have fallen, in the media, in politics, and in entertainment, the information that lawyers hand out to women like her has not changed. It is still extremely difficult and even dangerous for ordinary women in the US who experience harassment in most workplaces to make complaints, let alone file legal cases. Even those firms that do not ask plaintiffs to contribute to legal costs are likely to turn away most potential clients who cannot present a ready compendium of proof gathered at their own initiative, or those who are willing to risk their jobs and possibly their entire careers, for the sake of outing an abuser.
One reason things are the way they are is the weaponization of procedure itself. Unlike criminal cases, with which the courtroom-drama-watching public is most familiar, civil cases do not involve the state advocating for the victim. The competition, therefore, is often between an individual plaintiff, with constrained legal resources, and a large corporation, with its expensively shod legal team. The latter’s strategy in nearly all cases is to arm all procedural means to get the case dismissed prior to it going to trial, where juries are more likely to deliver a verdict for the plaintiff. The war often begins with the 12b(6) motion, a seemingly benign rule through which the defendant can ask the judge to dismiss the case based on the plaintiff’s “failure to state a claim” in their initial pleadings. It can be filed mere weeks after the initial complaint.
Before a district-court judge who has little patience with sexual-harassment plaintiffs it can be the end of things, the presence of just a bit of gray in setting out the elements of the case could equal a total loss for the harassed. Some plaintiffs survive this stage, because the standard practice for judges is to permit them to amend the complaint if there is such a danger of dismissal. But judges don’t have to do even that.
Once and if the 12b(6) hurdle is overcome, others await. Discovery, the process via which plaintiffs and defendants “exchange” information, begins in earnest. Once again, the vast difference in resources dominates the process; defendant’s attorneys, often entire teams of them, will often send pages and pages of discovery requests, demanding information on everything from the plaintiff’s entire employment history (somewhat understandable) to the employment history of the plaintiff’s spouse to details of any and all complaints by the plaintiff throughout their lifetime, including things like when the plaintiff returned a pair of jeans and on and on.
In response to plaintiffs’ requests for human-resource documentation and previous complaints filed by others, defendants will often send over hundreds and hundreds of pages of records, often without specifying which are relevant and where in the piles such relevant material may be. The tactic is to bury the plaintiff’s lawyer with requests that are overbroad and hence would require either an appeal to the judge to intervene (not liked by most judges) or some form of compliance. Similarly, requiring a plaintiff’s attorney to sift through many hundreds of pages of discovery documents reduces the possibility that they will be able to hone in on what is missing or in there but intentionally buried.
That is not all of it. Sexual harassment cases depend on corroboration of the plaintiff’s allegations, and that means getting the statements of others who saw or heard the events take place have on the record and under oath. Willing witnesses can provide these in sworn affidavits, but others may have to be subpoenaed and then deposed. In a deposition, plaintiffs’ attorneys can question the witness under oath while having the proceedings recorded by a court reporter. Both depositions and the court reporters who record them are costly; the total cost of a single deposition, with transcribed copies and video recording, can come to well over a thousand dollars. Usually at least three or four of these are required.
If those obstacles can be scaled, another more formidable hurdle awaits—the prospect of dismissal at summary judgment. According to Rule 56 of the Federal Rules of Civil Procedure, a case may be dismissed prior to trial by jury, if there is no dispute of material fact and the party filing the motion is entitled to a judgment as a matter of law. As the conversations around #MeToo have revealed, sexual harassment can lie anywhere on the spectrum between lewd banter and occasional touching to sexual assault and violence. It is difficult to say exactly what level of evidence will allow the plaintiff to pass this line; many judges hand out dismissals if there is any ambiguity at all.
In Women’s Lives, Men’s Laws (2007), Catharine MacKinnon—who argued for the plaintiff in Meritor Savings Bank v. Vinson, the case that made sexual harassment impermissible under the Civil Rights Act of 1964—writes, “Social movements did not first define the issue of sexual harassment in the public mind to the degree that the courts did.” MacKinnon meant simply that it was individual women who wanted to fight sexual harassment, rather than a movement, that transformed it from a moral failing to a legal injury.
But now #MeToo has (finally) emerged as a social movement to champion an issue that defines nearly every American woman’s life. At the same time, the differing trajectories—#MeToo’s focus on social and public forms of naming and shaming, and the law’s concern with what happens in the courtroom—means that the two are operating on somewhat divergent paths.
This must change. The law must catch up with the #MeToo movement. One facet of this change, however, depends on a certain number of cases and a certain amount of precedent building up in a judicial circuit prior to a definitive decision by a higher court. This trajectory is almost always two steps forward and one step back.
The story of the Supreme Court case, Meritor v. Vinson illustrates just what I mean. Prior to the Meritor decision in 1986, the Equal Employment Opportunity Commission had favored strict liability for employers whose supervisors recklessly disregarded claims of harassment (in other words, employers who either knew or should have known of such claims and the only proof required was to show that they worked there), and there was some support in lower courts for this position. However, Meritor v. Vinson made it unclear whether employers were ever strictly liable for the harassment carried out by their employees. So it granted that sexual harassment was a legal claim, but hedged on whether employers should be held automatically liable if their employees harassed other employees.
It took the Supreme Court over a decade before it took up that issue, and the news was, again, only partially good for women who had been harassed. The step forward, in Burlington Industries v. Ellerth, was that sexual-harassment plaintiffs could sue based on the “hostile environment” created by a supervisor, even when “no tangible employment action” had been taken. The much more consequential step back was that employers were permitted an affirmative defense that allowed them to evade liability for the actions of their harassing employees. All an employer had to do was show first that they took “reasonable care to prevent and correct promptly any sexual harassing behavior,” and that the plaintiff “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.”
The consequence of the Ellerth decision was that the incentive behind creating an anti-sexual-harassment policy, having trainings, and even instituting an in-house reporting mechanism, became less about the actual prevention of sexual harassment and more about evading liability by meeting the criteria of the “affirmative defense” outlined by the Supreme Court. Since the “social movement” that could have demanded otherwise had not yet been born, there has, until now, been no one to object to this easy evasion of liability. Nor has there been anyone to expose the fact that the trainings and the policies stuck on the back of break-room doors were having no actual impact on what women experienced at work.
#MeToo has exposed the vast extent of these failures. The shaming of high-profile perpetrators, many of whom worked at corporations that had all the trainings and policies, is evidence of just how much of a failure these human-resources policies are. They form the ambient noise that exists but is rarely taken seriously. Since employers can avoid costs simply by showing that they have these policies, they do not have to make an effort, for instance, to investigate the background of hires to see if they have been the subject of complaints. The men mattered; the harassment, beyond the lip-service of policy manuals and perfunctory trainings, did not.
Writing for The New York Times in February, MacKinnon noted that #MeToo, an “uprising of the previously disregarded,” had eroded the disbelief of victims and the trivialization of the crime, both factors that have sometimes doomed complainants in court. In the past, it took three or four women, all of them testifying that they had been violated by the same man, for a plaintiff’s lawyer to “even begin to make a dent in his denial.”
Undoubtably, #MeToo has enabled a recalibration of women’s rights within the workplace. Yet, while the law was the first to begin the process of redefining the workplace, it has largely been left outside the current discussion. While changing cultural and social mores will inevitably have some positive effect on the way complaints are made and adjudicated, the judicial system has the potential to usher far more meaningful change.
If #MeToo wants to change the obstacles confronted by ordinary women who face harassment at work and who want to pursue legal action, then it must champion legislation that makes employers strictly liable for the actions of their harassing employees. While court decisions have paved the initial path of sexual harassment litigation, drawing from the Civil Rights Act of 1964, new legislation can specifically address the situation of women in the workplace and the sort of liability accruing to employers.
Such legislation would transform the conversation that women experiencing harassment have with their attorneys. Strict liability would shift the cost to employers, forcing them to evaluate prevention policies not as formalities to be presented before the court as ways to actually prevent sexual harassment. Instead of forcing women, many of whom earn minimum wage or not much more, to put deposition costs on their credit cards, hoping that they can amass enough to survive constant motions for dismissal, they would make employers forego hiring men who pose a harassment risk.
Such a translation of the power and vigor of #MeToo as a social movement into concrete legal change will ensure that it transforms not only the lives of celebrities and highly visible perpetrators but also the ordinary harasser and the ordinary harassed. When employers know that they will have to pay for the harasser who grabs butts or whispers and texts lewd messages to co-workers, they will make sure he is gone and gone fast. In the world where #MeToo means strict liability, harassment policies and reporting mechanisms would be geared to prevent occurrence rather than circumvent complaints, to focus on “problem men” who harass rather than “problem women” who complain.
