Backdating #MeToo

Abstract

The #MeToo movement radically altered the way that people think about workplace sexual harassment. For decades, women were expected to tolerate a broad range of sexualized conduct at work. However, the revelation of Harvey Weinstein’s misdeeds in late 2017, followed by the exposure of countless other bad actors, dramatically shifted the social narrative regarding appropriate workplace behavior. Conduct that employees once ignored or overlooked suddenly became the basis for vociferous objection; the perfunctory responses to harassment that many employers once adopted suddenly stood out as glaringly deficient.

While society has undergone great shifts in its understanding of and response to workplace harassment, the courts have been slow to respond to these changing views. Various academics and other commentators have argued that sexual harassment law must evolve to catch up to these social changes, but few courts have embraced (or even acknowledged) this new reality. More importantly, virtually no one has addressed how courts should treat cases that span the progression of these norm shifts – cases that may have arisen prior to the upheaval caused by the #MeToo movement, but which are being litigated in the aftermath of these new social standards. This seems particularly striking given the extent to which the legal framework for resolving harassment claims explicitly involves an understanding of broader norms: In an area of the law that turns so significantly on “reasonableness” – whether a “reasonable” plaintiff would have perceived a sexually hostile environment; how a “reasonable” employer or employee should respond in such circumstances – what happens when reasonableness becomes a moving target, even within the duration of a single case?

This article examines the extent to which current, more stringent social standards regarding workplace sexual harassment should be applied retroactively to cases that may have arisen before those standards came into being. Specifically, it examines what should happen when a court is faced with workplace behavior that would not have constituted actionable harassment at the time that such conduct occurred, but which likely would create liability for the employer under today’s expectations. Should courts “backdate” the new norms created by the #MeToo movement? This article discusses the ramifications for women – and for society at large – of engaging in such a retroactive application of these evolving standards.
 

Keywords: MeToo, sexual harassment, harassment, discrimination, employment