Title VII and the #MeToo Movement
23 Pages Posted: 17 Apr 2018
Date Written: April 17, 2018
The #MeToo movement has drawn unprecedented attention to sexual harassment in the workplace. But there is a disconnect between sexual harassment as popularly understood and sexual harassment as prohibited by Title VII. This Essay identifies those areas where the law and the public understanding of it most starkly diverge. These include the requirements of severity or pervasiveness, the issue of unwelcomeness, the availability of an affirmative defense for hostile work environment claims, and the time limits within which claims must be brought. Additionally, those making claims of sexual harassment fare poorly when they suffer retaliation for stepping forward. Internal complaints (which the affirmative defense essentially require be made) do not receive the absolute protection extended to formal charges of discrimination. And because many complaints concern conduct that has not yet reached the requisite level of severity or pervasiveness, the complaints are deemed not to be based on a reasonable belief that the law has been violated and thus are found unprotected.
This Essay identifies where the #MeToo movement, to the extent it reflects societal understanding of what the law should be, may impact judges’ application of governing legal standards. The law often evolves in response to changing social norms, and the #MeToo movement, in ways this Essay describes, has the opportunity to effect this evolution in the law’s approach to on-the-job sexual harassment.
Keywords: sexual harassment, #MeToo, Title VII, anti-discrimination, employment law, retaliation
JEL Classification: K30, K39
Suggested Citation: Suggested Citation