Sexual Harassment in the Post-Weinstein World
11 U.C. Irvine L. Rev. 943 (2021)
SMU Dedman School of Law Legal Studies Research Paper No. 508
52 Pages Posted: 24 May 2021 Last revised: 28 Jul 2021
Date Written: 2021
The 2017 iteration of the #MeToo movement has brought tremendous attention to the problem of sexual harassment in the workplace, as well as in a variety of other contexts. We learned that sexual harassment is rampant, varied in form, and harmful, or, more accurately, that it is still all of these things. Sexual harassment at work has existed as long as women have worked, whether paid, valued, or enslaved. The law of sexual harassment has a much more recent provenance. Courts began to recognize harassment as a form of sex discrimination in the early 1980s, and the entire current structure of sexual harassment doctrine was in place by the end of the 1990s. The law, in broad brush, prohibits sexual harassment in the workplace and gives its survivors access to a variety of remedies when the employer permits it to happen. Yet today, almost four decades after the law first categorized sexual misconduct as a form of unlawful discrimination, an average American workplace can feel remarkably like a saloon in the Wild West.
This Article will explore the ways in which the #MeToo movement has affected (or might affect) institutional response to sexual harassment. This entails first understanding some early lessons from the #MeToo movement. Then, it explores the legal regime that both unequivocally treats harassment as prohibited and sometimes permits it to flourish. The Article will first consider the nature and degree of the problem, before exploring the development of sexual harassment law and the key components of the current legal doctrine designed to address misconduct. It will turn then to the ways in which existing law is inadequate and has largely failed to address sexual misconduct at work. It concludes with a consideration of whether #MeToo will push institutions harder, or at least differently, to respond to sexual harassment—and at what cost. In the end, it concludes that the #MeToo movement has brought powerful forces to bear on a problem that the law has failed to eradicate, but that larger problems of gender inequity will likely forestall further progress.
Keywords: Sexual harassment, Sex discrimination, Gender inequity, MeToo movement
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