Harassers’ Rights and Employer Best Practices: The Quest for a Calibrated Approach in the Era of MeToo

Abstract

This article, prepared for the Annual Jack Pemberton Lecture on Workplace Justice, calls for the development of best practices for handling accused harassers in response to the MeToo movement. It contends that much of MeToo’s legacy will be determined by the voluntary choices of employers as they implement new policies and practices surrounding sexual harassment. It is therefore crucial that employers gain a better understanding of the nature and scope of sexual harassment and the risks of both over- and under-enforcement of anti-harassment norms. Through analysis of Harvey Weinstein’s final contract as Co-Chairman of the Weinstein Companies, the article juxtaposes the protections afforded to corporate darlings and the situation of rank-and-file employees accused of harassment. It makes recommendations to companies interested in forging best practices that will prevent serial high-level harassment while protecting vulnerable workers from overzealous enforcement. These include substantial changes to executive contracting practices and the adoption of calibrated disciplinary protocols informed by a deeper understanding of the harm of sexual harassment and its connection to institutional gender discrimination.