As someone who teaches and writes about sexual misconduct, I am frequently asked what high-profile #MeToo events will mean for the #MeToo movement. So, what will Governor Andrew Cuomo’s resignation mean for #MeToo? It depends on whom you ask. Or perhaps the better question is — which #MeToo movement?
For the #MeToo movement that was designed to draw attention to how ubiquitous sexual misconduct is – how virtually every woman has an experience with sexual harassment, sexual assault, stalking or street harassment – events such as Harvey Weinstein’s conviction and Gov. Cuomo’s resignation are momentous. They demonstrate that more of us are finally listening to women and believing them when they tell their stories of having been harassed or assaulted.
But for those of us who were hoping for and are arguing in favor of legal reform, events like Cuomo’s resignation and Weinstein’s conviction are merely symbolic victories. These events have little to do with how harassment law operates in reality.
In other words, these high-profile events likely have little effect on would-be harassers, who can now claim that what they did was not nearly as bad as what Weinstein did. And these events likely have little positive effect on how employers react to reports of harassment in the workplace.
Here is why: Employers and employees don’t always recognize sex-based harassment as harassment if it doesn’t involve overt sexual advances. And yet, much of the disadvantage facing women (and some men) in the workplace is not caused by explicit proposals or demands for sexual activity. The more subtle hostility women face (especially in male-dominated workplaces) is not even recognized by most people as harassment. The public #MeToo movement has done nothing to change this reality in part because the news-making events are usually explicitly sexual.
Moreover, to the extent that the #MeToo movement has changed the behavior of would-be harassers and employers, it has done so in detrimental ways.
For would-be harassers (especially those in positions of authority), fear of accusations of sexual misconduct might lead these men to refuse to work with female subordinates. This leads to missed mentoring opportunities for these women that can (and often do) derail their careers.
From the employer’s perspective, the #MeToo movement has caused many to adopt zero-tolerance policies that can have perverse effects. One such effect is deterring victims of harassment from complaining about harassment because they are reluctant to cause the harasser’s termination, either because they care about the harasser and his family or because they are worried about a backlash from coworkers if their complaint leads to the harasser’s termination.
As for the law, we have yet to see the #MeToo movement inspire significant changes in the law surrounding harassment in the workplace. The #MeToo movement has not made the standard for proving harassment in the workplace any easier. Victims of harassment still must prove that the harassment was sufficiently severe or pervasive to create an abusive working environment, a constantly shifting standard that considers groping a woman’s breasts actionable harassment in some cases and not others.
And even when victims can prove that the harassment they suffered meets the high standard set by our courts, these victims still must hurdle the significant obstacles the law creates for assessing employer liability. If victims do not complain immediately, either because they hoped the harassment would go away on its own or because they were afraid of experiencing retaliation, they will lose their claims.
And employers often escape liability by doing the bare minimum to comply with the law — usually just having an anti-harassment policy, and not acting unreasonably when they receive a complaint of harassment. This focus on “file-cabinet compliance,” which gives employers a defense in most cases, is especially frustrating given that we know that these efforts are extremely unlikely to curtail workplace harassment.
And yet, despite this relatively negative assessment, there is one bright light. High-profile harassers and abusers being held accountable sends a symbolic message to women everywhere: Sometimes we believe you when you tell your story of sexual misconduct.
Nicole Buonocore Porter is distinguished university professor and professor of law at The University of Toledo.