The Legal Implications of the MeToo Movement

71 Pages Posted: 12 May 2018 Last revised: 27 Jul 2018

Date Written: July 17, 2018

Abstract

This Article examines the implications of the MeToo movement for employment law and employment practices. Employers are likely to face increased liability for harassment, as courts eventually update their standards for what qualifies as “severe or pervasive” harassment, and demand more of employers seeking to establish the Faragher/Ellerth defense. Employers also face greater risks of public scandals, as employees speak out and state legislatures limit the enforceability of non-disclosure agreements.

Consequently, employers can be expected to take a more punitive approach to documented instances of harassment. This will not only include termination, but also meaningful intermediate forms of discipline like a demotion or the removal of supervisory responsibilities. To limit their potential liability associated with these more punitive measures, employers are likely to modify standard language in executive employment agreements and privacy policies.

Lastly, the Article explores how standard harassment policies may have contributed to the problems exposed by the MeToo movement. The Article advocates for transparent harassment policies that disclose the contextual factors that influence disciplinary decisions. Employers should also draft broader discrimination policies that treat discriminatory and harassing comments by supervisors as a breach of trust. These changes would harmonize employer policies with their underlying litigation risks, and better convey employer expectations in the MeToo era.

Keywords: Harassment, Discrimination, MeToo, #meToo, Arbitration, Non-Disclosure, Nondisclosure, Secrecy, Practices

Suggested Citation

Tippett, Elizabeth Chika, The Legal Implications of the MeToo Movement (July 17, 2018). Minnesota Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3170764

Elizabeth Chika Tippett (Contact Author)

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541-346-8938 (Phone)

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