It feels like a lifetime has passed since the #MeToo movement gained significant traction in October 2017 and began reshaping the workplace. The movement helped sexual harassment victims speak out and be heard and resulted in a marked uptick in filed sexual harassment claims.
The #MeToo movement also put an increased focus on systemic issues, as alleged harassers and the organizations that employed them faced a reckoning in courts and in the media.
When the COVID-19 pandemic struck the United States in March 2020, work dramatically changed in ways few had ever imagined. The workplace shifted away from the office and into employees’ homes—creating a new space where employers had to guard employees from harassment, while the line between employees’ professional and private lives blurred.
The aims and spirit of #MeToo pressed forward, but the playing field changed and litigation lagged as courts struggled to operate during the pandemic.
October 2022 marks the fifth anniversary of the #MeToo movement. As the pandemic (hopefully) wanes and we continue to settle into our new normal, it is a prime time to evaluate the impact of the movement and how employers can continue to prevent sexual harassment in the workplace.
A Decrease in Sexual Harassment Claims
#MeToo indisputably made a mark on the rate of sexual harassment claim filings. In the wake of the #MeToo movement, sexual harassment claims filed with the U.S. Equal Employment Opportunity Commission (EEOC) spiked, increasing from 6,696 claims in 2017 to 7,609 and 7,514 in 2018 and 2019, respectively—an approximately 12 percent increase since 2017. The increase was not surprising, given the strength of the movement and the significant attention it garnered.
The trend changed in 2020. After the onset of the pandemic, the number of sexual harassment charges filed with the EEOC decreased to 6,587. In 2021, they decreased further to 5,581, dropping approximately 26 percent from the 2018 and 2019 numbers. That is to say, in 2021, the EEOC received fewer sexual harassment claims than it had immediately prior to the start of the #MeToo movement.
The EEOC also reported that from 2017-2021, the percentage of sexual harassment charges filed by males remained fairly steady, suggesting that the rate of harassment claims decreased proportionally across the sexes.
The obvious question is: why? It is hard to know the precise reason, but there are many factors that could have affected the filing numbers.
It could be that sexual harassment in the workplace has decreased as a result of increased workplace trainings designed to prevent such harassment. As discussed further below, some states have strengthened their sexual harassment training requirements, partially in response to the #MeToo movement, which may have reduced workplace sexual harassment.
The prevalence of the work-from-home model necessitated by the pandemic also may have affected the number of charges filed. The remote work environment could have resulted in fewer opportunities for sexual harassment, simply by virtue of employees not being in the same physical space together.
Or it could be that more women reportedly have left the workforce at a higher rate than men due to the pandemic, perhaps reducing the incidence of sexual harassment.
Whatever the cause, it is worth considering these factors and their relation to the #MeToo movement, especially as some companies shift employees away from remote work and back to the office.
Sexual Harassment Lawsuits Still in the Spotlight
Despite the decrease in EEOC charges, sexual harassment lawsuits and verdicts continue to grab headlines, especially in cases in which the damages assessed have been eye-popping.
For example, in March 2022, a California federal court approved an $18 million consent decree in a lawsuit brought by the EEOC against a company for alleged sexual harassment violations.
The resolution established a fund for victims of the sexual harassment and ordered injunctive relief aimed at stemming further harassment. It was widely reported in major media outlets.
While some of the early #MeToo litigation stalled during the COVID-19 pandemic, many of the cases have worked their way through the judicial system, and new cases are still being filed.
It is worth remembering that these more recent cases are being argued to judges and juries knowledgeable of and, in some cases, sensitive to the aims of the #MeToo movement. The #MeToo movement has arguably reframed and reset juries’ expectations in sexual harassment cases.
A verdict in favor of a plaintiff can be a costly outcome for a defendant, especially in jurisdictions that provide for uncapped punitive damages awards.
The short story is that although there has been a decrease in filed EEOC charges, the #MeToo movement has made its mark on sexual harassment litigation, and such litigation continues to be a potentially costly problem for employers.
The EEOC has indicated that eradicating sexual harassment in the workplace remains a top priority for the agency, suggesting that it will continue to pursue such matters aggressively.
#MeToo Shaping Legislation
#MeToo has also shaped some remarkable legislation. For example, at the federal level, President Biden recently signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. This law renders unenforceable arbitration agreements (and joint-action waivers) that were entered into predispute, where the dispute relates to sexual harassment or assault.
Under this new law, employers may no longer compel arbitration in sexual harassment disputes, meaning that employees have the opportunity to tell their stories in public, rather than in confidential arbitration proceedings.
Some states have passed legislation aimed at providing additional protections to employees who report sexual harassment. For example, in March 2022, the state of New York enacted legislation aimed at strengthening the state’s discrimination laws as part of its Equity Agenda.
According to a press release from the office of New York Governor Kathy Hochul, the Equity Agenda is “a wide-ranging plan to promote and support gender equity, racial equity, anti-hate, social justice, the LGBTQIA+ community, immigrants and new arrivals, and veterans with the goal of protecting the health, safety, economic opportunities, and fundamental dignity of every New Yorker.”
One piece of legislation prohibits employers from releasing an employee’s personnel file in response to the employee’s opposing an unlawful discriminatory practice.
Another item of the Equity Agenda established a confidential hotline that will be operated by the New York State Division of Human Rights and provide counsel to individuals with complaints of sexual harassment in the workplace.
Nondisclosure agreements (NDAs) also remain an issue in sexual harassment matters. Some states, such as Oregon, have enacted laws to prevent or curb the use of NDAs in harassment and discrimination cases, so that alleged victims are able to tell their stories and speak out against harassment. There is also public support for legislation that would prohibit the use of NDAs in sexual harassment cases.
As legislation continues to develop, employers may want to keep in mind that the trend seems to be in favor of providing additional protections to employees who report sexual harassment. Thus, employers may want to keep an eye toward the future in terms of their knowledge of and compliance with the ever-developing legal landscape.
Preventing Sexual Harassment Claims
As the #MeToo movement continues to evolve and shape the workplace, employers may want to revisit their policies to ensure they are complying with applicable federal and state laws. Employers might also want to consider the following points regarding creating an inclusive and welcoming work environment.
Setting the Tone
Workplace culture is often set from the top down, so it may be important to have buy-in for a welcoming and inclusive culture at the highest levels.
Indeed, in reacting to the “Great Resignation,” a recent trend in which employees have quit their jobs en masse, many companies are becoming even more aware of the negative effects of toxic work culture.
Of course, not all workplace toxicity involves sexual harassment, but organizations that do not take steps to prevent harassment may run the risk of losing talent at a higher rate while subjecting themselves to liability.
When members at the top of an organization are committed to equity and fairness, their values often filter down throughout the organization.
Setting Expectations for Remote Work
Periodic reminders about appropriate remote-work conduct may be helpful in ensuring that employees are behaving professionally, even when working from home.
Reminders may go a long way toward preventing sexual harassment claims that are premised, for example, on an employee’s displaying inappropriate material in his or her background during a videoconference.
Training
Not only do many states require sexual harassment prevention training, it may be in employers’ best interests to make it possible for employees, including managers and human resources professionals, to better identify sexual harassment, so they are equipped to address and prevent it.
Reporting Channels
Employers may also want to consider whether well-established channels exist through which employees may report harassment. It may be helpful to have more than one reporting channel, particularly if the channels are firmly established and known to employees.
Investigations
If an organization receives a complaint regarding sexual harassment, investigating the issue typically becomes a priority. Early intervention can often help to stem workplace problems before they escalate.
Additionally, investigations may help employees alleging harassment feel heard and appreciate that their claims are being taken seriously.
A version of this article was previously published in Law360.
