The following is a chapter from Trumpism and its Discontents. Click to download a PDF of the book here.
By Catherine Albiston
In 1991, Anita Hill challenged the Supreme Court appointment of Justice Clarence Thomas by disclosing his sexually harassing behavior while he was her supervisor at the Department of Education and the Equal Employment Opportunity Commission (EEOC). Much ink was spilled discussing how these hearings represented a watershed moment in recognizing sexual harassment at work. At the time, Meritor Savings Bank v. Vinson (1986),1 the landmark Supreme Court decision that recognized that sexual harassment was discrimination under Title VII of the Civil Rights Act of 1964, was a few years old. Twenty-five years and many Supreme Court decisions on sexual harassment later, we are reliving that watershed moment in the #MeToo movement. Trump’s candidacy and presidency have withstood multiple accusations of sexual assault and harassment and has given rise to a Department of Education led by Betsy Devos that has spearheaded concerted efforts to undermine policies promoting greater accountability among college campuses and perpetrators. Given this new era of discourse on sexual harassment and sexual assault contextualized by Trumpist dismissiveness of these claims, what, if anything, has changed during those twenty-five years, and what might be the future of sexual harassment as a theory of discrimination?
When Meritor was decided, courts were still struggling to understand sexual harassment in the workplace. Was it private behavior beyond the reach of employer liability under antidiscrimination statutes? Or was it unequal treatment with regard to the terms and conditions of employment for which employers could be liable? Even after Meritor found sexual harassment at work actionable, courts struggled for decades to define what constitutes harassment. Was harassment a form of sexual desire, humiliating and demeaning bullying directed at disfavored groups, or the policing of stereotypes and norms about men and women? How far did employers’ responsibility go? Were they responsible for the harassing behavior of supervisors, coworkers, or customers? And to what extent, if any, should the targets of harassment be held responsible for their behavior in response to alleged harassment? Over the years, the Supreme Court has resolved these questions to develop a jurisprudence of sexual harassment. Compared with the stark questions about liability raised and resolved in Meritor, this jurisprudence offers a remarkably nuanced and sophisticated understanding of power and sexual harassment in the workplace, albeit an imperfect one with which not all commentators agree.
The #MeToo movement has now focused attention on sexual harassment again. #MeToo revealed that on the ground perhaps not much had changed despite the developing law. By exposing egregious behavior by powerful actors in Hollywood, Washington, and elsewhere, the #MeToo movement highlighted how power and sexual harassment are closely connected. Many of these powerful actors denied or minimized the accusations against them. They aggressively attacked their accusers and framed the systemic claims of the movement as individualized, sordid he said–she said squabbles. Media coverage also shifted the narrative. By focusing on salacious details, the media hypersexualized sexual harassment and obscured how harassment creates systemic structural barriers to advancement at work. The aggressive counterattack also reframed accused men (and their families) as the victims of serious (and implicitly unfounded) charges that threatened to destroy their careers and lives. This narrative ironically acknowledged the seriousness of sexual harassment accusations while simultaneously undermining the legitimacy of those who made them.
This chapter reviews how sexual harassment law has developed since Anita Hill’s testimony in the Clarence Thomas hearings. It then contrasts the systemic conception of sexual harassment in doctrine with the emerging framing and narrative of the #MeToo movement and the response to that movement – much of which has occurred in the shadow of and in response to Trumpism. Through this contrast, the chapter illuminates how the #MeToo debate legitimates arguments long since rejected in doctrine. The chapter closes with cautions about the limits of #MeToo and the pitfalls ahead in developing sexual harassment doctrine.
Doctrinal Developments since Meritor
Meritor represented the Supreme Court’s first major foray into sexual harassment jurisprudence, just a few years before Anita Hill raised the issue during Clarence Thomas’s Supreme Court confirmation hearing. This opinion began decades of line drawing about the meaning and harm of sexual harassment as well as about the limits of employers’ responsibility for their employees’ conduct. Although heralded as a major advancement in sexual harassment jurisprudence, Meritor both repudiated and reinforced stereotypes about gender relations and sexual conduct. It rejected arguments that short of rape, so-called voluntary sexual conduct in the workplace was private behavior for which the employer had no responsibility.2 It also held that tangible economic injury was not required for the harassing behavior of a supervisor to be actionable if that harassment created a hostile work environment that affected the terms and conditions of the plaintiff’s employment.3 In this way, the Court placed sexual harassment squarely within the definition of discrimination prohibited by Title VII.4
Even so, Meritor reflected and reinforced cultural stereotypes about sex and gender relations. For example, Meritor set out a legal standard in which the plaintiff bears the burden of demonstrating that the allegedly harassing conduct was unwelcome.5 Burdens of proof typically reflect assumptions about the ordinary state of the world, with the burden of proof placed on the party arguing that the ordinary state of affairs does not obtain in the case at hand. Placing the burden of proof on the plaintiff thus presumes that absent evidence to the contrary, women ordinarily welcome the sexual advances of men, even in the workplace.6 The Court went further to suggest, in dicta, that the plaintiff’s conduct and dress would be relevant to whether she welcomed the harasser’s attentions.7 These dicta opened up intense scrutiny of plaintiffs in sexual harassment cases and refocused the inquiry away from the harasser’s behavior toward whether the woman made sufficiently clear that sexual overtures were not wanted. This interpretation ignored how power disparities between men and women in the workplace might discourage victims from complaining. Instead, the stereotype of the scorned and vindictive woman raising sexual harassment accusations against her former lover lurks in this doctrine. The doctrine subtly reinforced the stereotype that women lie about rape and sexual assault.
Meritor made clear that sexual harassment constituted discrimination, but it left open several important questions about the scope and consequences of that discrimination. Harris v. Forklift Systems (1993) resolved one such question by holding that conduct that was both subjectively and objectively offensive was sufficient to support a claim and that tangible psychological injury was not required.8 In Harris, the plaintiff’s supervisor not only sexually propositioned her, but also belittled her with abusive, gender-specific language such as “dumb-ass woman.”9 Harris thus reveals that sexual harassment may not be about sexual desire but can be about demeaning women and undermining their performance by treating them as mere sexual objects rather than as valued employees.10 The Court recognized this dynamic, noting that “an abusive work environment . . . that does not seriously affect employees’ psychological well-being . . . can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers.”11 Harris thus moves away from conceptualizing sexual harassment as workplace dating gone wrong to understanding harassment as a concerted effort to undermine women in the workplace and encourage them to leave. Indeed, some of the most egregious examples of sexual harassment target women attempting to integrate male-dominated occupations such as mining; investment banking; construction; and the science, technology, engineering, and mathematics (STEM) fields.12 Sexual harassment in this conception is a form of social closure to keep women out of jobs traditionally held by men.13
The Supreme Court established a third major principle in Oncale v. Sundowner Offshore Services, Inc. (1998), in which it recognized that same-sex harassment could be actionable under Title VII.14 Oncale involved an oil platform worker who “was forcibly subjected to sex-related, humiliating actions against him,” including physical assault and threats of rape.15 Both the harassers and the target of the harassment were men, raising the question of whether same-sex harassment was actionable under Title VII. Building on Harris, the Court held that actionable harassment “need not be motivated by sexual desire” and could also be “motivated by general hostility to the presence of women in the workplace.”16 The Court also suggested that same-sex harassment when there was “credible evidence [that] the harasser was homosexual” would also be actionable.17 Nevertheless, the Court did not recognize harassment as a form of policing gender identity and behavior, even though the facts of Oncale suggested as much.
At the time of Oncale, legal scholars produced substantial work that broadened the understanding of sexual harassment to include nonsexual forms of gendered harassment (such as that addressed in Harris) and cases of same-sex harassment targeting men who failed to conform to traditional masculine gender performance (such as Oncale).18 This scholarship moved sexual harassment as a concept beyond Catharine MacKinnon’s gender dominance theory19 at its origins to a more capacious understanding of power, gender, and workplace discrimination and exclusion. This new conception of sexual harassment was not limited only to men dominating women, or to sexual desire, or even to sexually explicit language and conduct. Instead, following Oncale, it conceptualized harassment “because of sex” to include sexualized harassment, nonsexual forms of gender harassment, and, importantly, harassment directed toward policing gender identity and gender performance.20 In this last theory, sexual harassment dovetailed with other Title VII precedent that held “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.”21
Modern campaigns against systemic sexual harassment build on this foundation. Long before Ashley Judd accused Harvey Weinstein of sexual harassment, investigative reporting had revealed widespread and long-standing sexual harassment, including rape, of women working in the janitorial industry.22 Far from one-off instances of boorish behavior, these accounts documented systemic sexual abuse of isolated and powerless women dependent upon their jobs. But this abuse of power in the employment relationship represents only one of many forms of systemic harassment. A second form focuses on undermining and excluding women who make inroads into traditionally masculine occupations. Although this behavior has often been characterized as a particular problem with blue-collar occupations such as mining or construction, a recent report by the National Academics and Sciences, Engineering, and Medicine documents systemic discrimination and harassment in the professional STEM fields as well.23
A third form of systemic sex-based harassment enforced gender identity norms on the basis of stereotypical assumptions about appropriate workplace demeanor, appearance, and even social associational behavior outside of work. When sexual harassment first emerged as a theory of gender discrimination, courts struggled with how to theorize this form of harassment, hindered in part by early precedents such as Meritor that had been based on overt, heterosexual, explicitly sexualized harassment. After Harris and Oncale established that harassment need not be sexualized or involve the opposite sex in its manifestations, sexual harassment doctrine came to recognize harassment’s gender-norm-policing function as akin to prohibited gender stereotyping already well recognized as discriminatory in both Title VII and constitutional doctrine.24 Most recently, in a dramatic and unexpected decision in Bostock v. Clayton County (2020), the Supreme Court held that Title VII’s prohibition against discrimination (and therefore also harassment) because of sex included discrimination on the basis of sexual orientation or gender identity.25
Thus, by the time the #MeToo movement came into public consciousness, legal doctrine and theory had moved far beyond the narrow idea of boorish sexualized behavior or requests for dates gone wrong as the template for understanding sexual harassment. Instead, sexual harassment represented, in both doctrine and theory, a sophisticated form of gender discrimination and gender-identity policing deeply implicated in power relationships at work and in the broader society.
Doctrine has not always developed in more protective directions, however. Indeed, this conception of sexual harassment as a much more serious and systemic workplace problem led to a series of decisions that began to both delineate and cabin employer liability for harassment at work. These include Faragher (1998) and Burlington Industries (1998), two decisions that created a defense for employer liability for harassment by supervisors, even when the plaintiff proved the harassment had taken place.26 These decisions held that an employer had an affirmative defense to liability for sexual harassment by a supervisor if “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and . . . [if] the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise.”27 Although this rule arguably incentivized employers to create policies and structures to prevent sexual harassment, it also focused attention on whether women had done enough to object to harassment. This shift once again ignores the sharp power inequalities between harassing supervisors and their targets that might discourage women from complaining. This defense also enables employers to create policies and structures that signal compliance to courts but do very little to change interactions on the ground.28 In this way, employers can protect themselves from liability even if women prove actual harassment on the part of their supervisors. Nevertheless, even these problematic defenses put some obligation on employers to protect their employees from sexual harassment in the workplace.
#MeToo and What Is (Not So) New
The start of the #MeToo movement is often attributed to Alyssa Milano’s Twitter tweet on October 15, 2017, suggesting that “women who have been sexually harassed or assaulted” write #MeToo in response.29 Not many people know, however, that an African American woman named Tarana Burke started the #MeToo movement years before.30 Burke’s focus was on creating an organization and a community to help victims of sexual harassment and assault. After the #MeToo movement exploded in 2017, however, the narrative took on a life of its own, with unpredictable twists and turns following the Brett Kavanagh Supreme Court confirmation hearings in 2018 and revelations about powerful men in politics, Hollywood, and business. Unfortunately, the media storm about the current iteration of #MeToo has produced a backlash and a narrative at odds with Burke’s original focus on supporting victims of harassment and sexual abuse.
Three narrative themes in particular have emerged that are in marked contrast to the nuanced and relatively sophisticated developments in the law designed to prevent harassment. First, there has been a resexualization of what harassment means, with a focus on the salacious details of harassment accusations and with little to no attention paid to how sex-based harassment exploits, belittles, and undermines women in the workplace. Second, contentious debates over #MeToo have resuscitated the “lying witness” stereotype of women who accuse men of harassment or rape and have generalized that stereotype such that all women are now potential false accusers. Third, rather than focusing on the harm and systemic effects of harassment, commentators have questioned whether the harassing conduct, even if true, is serious enough to warrant punishing privileged and accomplished men. I next discuss each of these themes and how they contrast with doctrinal developments in more detail.
Sexual Harassment Is Not Always about Sex
One of the fundamental theoretical developments of sexual harassment law in recent decades has been to recognize that sexual harassment is not always, or even usually, motivated by sexual desire. Time and again, scholars have shown how harassers often combine sexualized comments and groping with gender-derogatory statements designed to undermine women’s competence and status in the workplace. Harassment is often a way to signal that women do not belong in a particular workplace and that their appropriate role is sexual rather than professional. Indeed, harassers often target women who are tokens or minorities in their professional settings as a means of putting them in their place.31 The most common form of harassment is gender harassment motivated by hostility toward individuals who violate gender ideals.32
By contrast, the #MeToo movement has resexualized sexual harassment. Media, both social and traditional, have something to do with this development because salacious details make for good copy. Empirical research about the aspects of sexual harassment considered newsworthy documents that the media disproportionately report classic examples of sexual harassment: senior men harassing junior or subordinate women.33 Media also focus on overtly sexualized conduct and particularly on scandalous allegations34 and disproportionately report successful litigation, exaggerating the threat of sexual harassment litigation.35 By contrast, media accounts seldom report on sexual harassment as a systemic issue or as an example of broader gender inequality.36 Instead, typical media coverage promotes narratives of sexual harassment as incidents of individual aberration, most often the actions of one individual against another.37
To the extent that media coverage—especially the extensive and feverish media coverage of the #MeToo moment—influences our understanding of gender relations in the workplace and the broader community, current media frames threaten to undermine the hard-won legal and social recognition that sexual harassment is a systemic problem that recreates gender inequality. Moreover, by promoting images of sexual harassment as physical touching, overtly sexualized behavior, and individually motivated and directed behavior, this narrative normalizes and excludes from popular understandings of sexual harassment the taunts, verbal abuse, and competence undermining actions such as those recounted in Harris that courts have long recognized as actionable.
#HimToo: All Women Are Potential False Accusers
The #MeToo movement, originally begun to support survivors of sexual harassment and assault, has generated a #HimToo backlash that paints men as the victims of a climate of false accusations by feminists. Although it is difficult to verify the exact origin of #HimToo as a response to the #MeToo movement, one example is the tweet of the mother of Pieter Hanson, who claimed her son “won’t go on solo dates due to the current climate of false sexual accusations by radical feminists with an axe to grind.”38 When the tweet went viral, the embarrassed Hanson disavowed his mother’s assertion that he avoids dating for fear of being falsely accused of sexual misconduct and emphasized that he supports the #MeToo movement and not its #HimToo opposition.39 The original tweet generated a malleable and entertaining meme, but the underlying stereotype of dangerous, lying women falsely accusing innocent men of sexual misconduct reasserted itself in the popular consciousness as the #HimToo backlash spread.
Prior to this exchange, #HimToo had gained traction during the Kavanagh confirmation hearings as a way to discredit the nominee’s accusers. Conservatives tweeted #HimToo to show their support and to chastise women whom they believed had falsified sexual assault claims to defeat his Supreme Court nomination. This narrative echoed derogatory characterizations of Anita Hill as untruthful and vengeful during the Clarence Thomas confirmation hearings decades earlier in 1991, but it also went further. It generalized that narrative to an assumption that all women who accuse powerful and accomplished men of harassment are untruthful. In this sleight of hand, powerful and accomplished men, not the targets of their alleged harassment, became the victims. This framework aligns with a tactic seen in other aspects of Trumpism – namely, to attempt to discredit the source of an accusation of misbehavior in a manner that positions the rich and powerful male as the victim of alleged liberal bias.
Generalizing the lying accuser stereotype also helped depersonalize the claim that sexual assault accusations were false. Senators had learned from the Thomas hearings fallout that their personal attacks on women claiming sexual harassment could backfire. At the Kavanaugh hearing, they appeared unwilling to directly accuse witness Christine Blasey Ford of lying. Instead, allies of Kavanaugh weaponized gender in the battle for his nomination by relying on Rachel Mitchell, an Arizona prosecutor, to ask challenging questions40; producing a supportive letter from female contemporaries of Kavanaugh in high school the morning after the Blasey accusations surfaced41; keeping the nominee’s wife constantly before the camera42; and circulating pictures of Kavanaugh with his daughter’s sports team.43 The message: this was a man who supported and was supported by women—as if men who support women could not also be harassers (remember Bob Packwood?).44 Weaponizing gender in the general outcry over the Kavanaugh hearings was a way of displacing the target of harassment as the victim. If, as Kavanaugh’s supporters claimed, the wife and family of the accused harasser are the true injured parties, then the woman bringing forth the claim was victimizing women and children. This approach neatly blames the accuser, not the harasser, for the fallout from his alleged conduct and sidesteps serious consideration of the veracity of her claims. Sadly, this technique of attacking sexual harassment and violence victims is so well-documented that it has a scientific name, DARVO, which stands for deny, attack, and reverse victim and offender.45
Somehow the notion that men who have significant power might be in a position to harass women without consequence and also might be able to cover up that fact and get away with the harassment is lost in this “powerful-men-as-victims” theme. Related to this idea are powerful men’s claims in response to #MeToo that they no longer can be alone with women in the workplace, such as comments made by Vice President Mike Pence.45 A 2019 survey reported in the Harvard Business Review found that 19 percent of men said that they were reluctant to hire attractive women, 21 percent said that they were reluctant to hire women for jobs involving close interpersonal interactions with men (such as jobs involving travel), and 27 percent said that they avoided one-on-one meetings with female colleagues.47 The idea that men themselves are victims, especially powerful men who have the most to lose from false accusations, takes the focus away from their own agency and behavioral choices in refraining from the objectively offensive behavior that constitutes sexual harassment.
Ironically, while in the Anita Hill era sexual harassment was a means of excluding and undermining women in the workplace, now in the #MeToo era the mere theoretical potential for false claims, which are exceedingly rare, has become a justification for excluding and avoiding all women in the workplace. No longer is actual harassment required to exclude women; merely suggesting that any woman might at any time (falsely) accuse a man of harassment is a justification for avoiding women altogether in professional settings. Decades after Harris recognized how harassment undermined women’s progress in the workplace, this new narrative generates yet another headwind for women’s advancement as a second-order effect of sexual harassment.
Time’s Up? The Entitlement of Powerful Men
Perhaps the most disturbing theme to emerge from the #MeToo debates was an implicit weighing of the accused’s stature against the seriousness of the accusations. This narrative suggests the consequences for the privileged and accomplished accused should depend on the seriousness of his actions, from groping and propositions to rape, because he has so much to lose. Discussions about the accusations against Al Franken, some of which were captured in a photograph, questioned whether a pantomime grope of a sleeping woman should be enough to bring down a senator.48 More ominously, the father of a Stanford student athlete convicted of raping an unconscious woman suggested that a six-month sentence (already controversially light) “was a steep price . . . for twenty minutes of action.”49
And Donald Trump bragged about kissing, groping, and trying to have sex with women, stating, “When you are a star, they let you do it.”50 Legally, the identity and stature of the accused is irrelevant to the fact that unwanted touching constitutes assault and battery, and rape is, of course, a serious crime.51 Nevertheless, the high-profile identities of men accused in the #MeToo movement have become fodder for questioning whether harassment, even physical touching, is enough to warrant consequences for powerful and accomplished men.
Catharine MacKinnon argues that as a result of #MeToo, women are being listened to in a new way, but she also acknowledges this undercurrent of dismissiveness in the face of entitlement. She notes that Judge Kavanaugh’s Supreme Court confirmation hearing “presented Christine Blasey Ford’s sexual assault as a long-familiar dialogue between her facts and his resume. As framed by him, the question was whether someone as valuable and accomplished as he would be denied advancement over something as dubious and negligible as the abuse against Dr. Blasey.”52
Earlier, MacKinnon had argued that, at least initially, the #MeToo movement had looked like a shift from the bad old days when “[e]ven [in a situation in which a woman] was believed, nothing [a man] did to her mattered as much as what would be done to him if his actions against her were taken seriously. His value outweighed her sexualized worthlessness. His career, reputation, mental and emotional serenity[,] and assets counted. Hers didn’t. In some ways, it was even worse to be believed and not have what he did matter. It meant she didn’t matter.”53
Indeed, powerful men, many of them, are facing accusations of sexual misconduct, and a not insignificant number of them are facing consequences for that behavior.54 But so are the women who accuse them. Ironically, #MeToo, which began as a movement to support survivors of sexual assault and harassment, has provoked the vilification of women who have come forward. Although more women are disclosing their experiences of abuse at the hands of powerful men, one would be hardpressed to say that those women have been overwhelmingly accepted and supported. Christine Blasey Ford, who had initially asked Senator Diane Feinstein for confidentiality, received death threats, had to hire private security, went into hiding, and was unable to return to her job as a college professor.55 Unfortunately, Blasey Ford is not alone in facing backlash; women across the globe who have spoken up not only are experiencing verbal threats but are also being sued for defamation.56 But why are people so surprised to hear about sexual harassment? Studies show that at least one in four women has been sexually harassed at work57 and that two-thirds of those who report workplace mistreatment experience retaliation.58v Not surprisingly, most sexual harassment goes unreported.59 The current high-profile backlash against #MeToo accusers is unlikely to improve that statistic as women see the consequences of speaking out.60
Why is there so much vitriol and outrage against women who speak up given the documented widespread occurrence of sexual harassment, including behavior by powerful men who not only admit having harassed women but sometimes even brag about having done it? Here is where the systemic, power-based nature of harassment becomes apparent. Sexual harassment is simultaneously a privilege of powerful men; a means of keeping uppity, accomplished women in their place; and a key tool for maintaining gender hierarchy. Threatening that hierarchy, especially when doing so would affect powerful brethren, is far more than the sordid he said–she said story media tend to present. This perspective may help explain why people who have never met or perhaps even heard of the men accused in the #MeToo movement or the women who have accused them nevertheless feel that their own quite ordinary sons are endangered by its existence. The backlash is likely to discourage reporting of sexual harassment, leaving sexual harassment plaintiffs vulnerable to the defense that they unreasonably failed to take advantage of corrective measures provided by their employers, however ephemeral those measures might be.
The Future of Sexual Harassment Law
This chapter began by asking what, if anything, has changed during the twenty-five years since the Clarence Thomas/Anita Hill hearings and what the future of sexual harassment as a theory of discrimination might be. Legally, much has changed. Sexual harassment doctrine and theory has moved beyond regarding harassment as boorish behavior driven by sexual desire to a much more nuanced understanding of harassment. This nuanced understanding views harassment as social closure meant to undermine women and drive them from the workplace (especially in traditionally male-dominated jobs), as policing of gendered stereotypes about appropriate behavior for men and women, and, most importantly, as discrimination actionable under civil rights laws. Harassment is not merely rude; it represents the exercise of power to maintain hierarchy.
Sadly, despite the best efforts of advocates in the #MeToo movement, this is not the narrative we see today, although in some ways the new narratives derive from the success of advocates so far. After decades of doctrinal development, no longer is sexual harassment seen as unproblematic. We take harassment seriously—so seriously that when powerful men are accused, their supporters seek to discredit accusers as quickly and thoroughly as possible. Popular narratives continue to discount or question allegations against powerful men, even though the record shows that power is closely connected to harassment. And we continue to focus on and vilify the victim because challenging the hierarchy of power and gender relations is too destabilizing to contemplate and would give far too much power to those who have long been subordinate.
This vilification of accusers only amplifies the challenges of coming forward. The generalized assumption that anyone who complains of harassment is probably lying and the popular image of accusers as dishonest and politically motivated raise the bar for women deciding whether to come forward. Women who complain about sexual harassment risk being characterized by this stereotype of the lying, vindictive woman. Any women who watched #MeToo unfold, especially after the Kavanaugh confirmation hearings, will fear retaliation rather than anticipate support if they were to come forward with accusations against powerful men. What the law recognizes as actionable harassment—conduct that is objectively and subjectively offensive—can nevertheless be undercut by cultural presumptions that powerful and accomplished men should not be brought down by the complaints of their insignificant victims. Moreover, women who have been subjected to a different kind of gender-based harassment, one centered on gendered insults, taunts, and threats, are hard-pressed to see their experiences reflected in the #MeToo narrative. Finally, the generalization of the lying accuser stereotype threatens to undermine the advancement of all women if Vice President Pence’s avoid-women-at-all-costs policy becomes the norm.
The individualized he said-she said narratives of the #MeToo movement risk losing sight of the hard-won legal principle that harassment can be a tool for maintaining power and gender hierarchy. Who is missing from this narrative illustrates why this is so. Janitors raped on the night shift are nowhere to be found.61 After Bostock, LGBT workers may no longer be fired because of their sexual orientation, but the popular narrative of #MeToo has yet to address harassment on the basis of sexual orientation or gender identity. And pioneering women in male-dominated fields from construction to STEM continue to be driven out by demeaning and harassing behavior based on their gender nonconformity in choice of profession. For these workers, it is too soon to say that the downfall of a few powerful men for their sexually explicit behavior represents a watershed change in gender relations and sex-based harassment. Recapturing the systemic and many-faceted nature of harassment will require more variation and nuance in how the media cover it and how the courts understand it. Understanding the divergence between popular narrative and doctrine, however, is the first step toward closing the gap.
- 1. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986).
- 2. Id. at 68–69.
- 3. Id. at 64–68.
- 4. Id. at 65–67.
- 5. Id. at 68–69.
- 6. B. Glenn George, The Back Door: Legitimizing Sexual Harassment Claims, 73 B.U. L. Rev. 1, 28–30 (1993).
- 7. Meritor at 68–69.
- 8. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21–23 (1993). Note that discriminatory intent is not an element required to prove sexual harassment; objectively and subjectively offensive conduct suffices.
- 9. Id. at 19.
- 10. See id. at 22.
- 11. Id.
- 12. Claire Bingham and Laura Leedy Gansler, Class Action: The Landmark Case That Changed Sexual Harassment Law (New York: Anchor Books, 2002) (discussing the Duluth mining sexual harassment case); Molly Martin, ed., Hard-Hatted Women: Stories of Struggle and Success in the Trades (New York: Seal Press, 1988) (compiling firsthand experiences of women in the construction trades); William D. Cohan, “Women Say a Rigged System Allows Wall Street to Hide Its Sexual Harassment Problem,” New Yorker, Jan. 7, 2018, https://www.newyorker.com/news/news-desk/women-say-rigged-system-allows-... National Academies of Science, Engineering, and Medicine, Sexual Harassment of Women: Climate, Culture, and Consequences in Academic Sciences, Engineering, and Medicine (2018) (documenting the problem of sexual harassment across multiple scientific fields), https://www.nap.edu/catalog/24994/sexual-harassment-of-women-climate-cul....
- 13. See Catherine Albiston and Tristin Green, “Social Closure Discrimination,” Berkeley Journal of Employment and Labor Law 1 (2018): 39.
- 14. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).
- 15. Id. at 77.
- 16. Id. at 80.
- 17. Id.
- 18. For a review, see David S. Schwartz, “When Is Sex Because of Sex? The Causation Problem in Sexual Harassment Law,” University of Pennsylvania Law Review 150 (2002): 1697–1794.
- 19. Catharine A. MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (New Haven: Yale University Press, 1979).
- 20. Kathryn Abrams, “The New Jurisprudence of Sexual Harassment,” Cornell Law Review 83 (1998): 1169; Katherine M. Franke, “What’s Wrong with Sexual Harassment?” Stanford Law Review 49 (1997): 691; Vicki Schultz, “Reconceptualizing Sexual Harassment,” Yale Law Journal 107 (1998): 1683.
- 21. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
- 22. “Rape on the Night Shift,” Frontline, PBS, Jan. 9, 2018, https://www.pbs.org/wgbh/frontline/announcement/amid-the-national-conver....
- 23. National Academies of Science, Engineering, and Medicine.
- 24. United States v. Virginia, 518 U.S. 515, 531–34 (1996) (reviewing historical stereotyping of women and constitutional challenges to the same); Price Waterhouse 490 U.S. at 251 (noting “Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes” when it enacted Title VII).
- 25. Bostock v. Clayton County, 590 U.S. ___ (2020), slip op. at 2.
- 26. Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlingon Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
- 27. Burlingon Industries, Inc. v. Ellerth, 524 U.S. at 745.
- 28. See generally Lauren Edelman, Working Law, Chapter 6 (2018).
- 29. Aisha Harris, “She Founded MeToo. Now She Wants to Move Past the Trauma,” New York Times, Oct. 15, 2018, https://www.nytimes.com/2018/10/15/arts/tarana-burke-metoo-anniversary.html.
- 30. Id.
- 31. See Emily A. Leskinen, Lilia M. Cortina and Dana B. Kabat, “Gender Harassment: Broadening Our Understanding of Sexual Harassment at Work,” Law and Human Behavior 35 (2011): 25–39.
- 32. Id.; Jennifer L. Berdahl, “The Sexual Harassment of Uppity Women,” Journal of Applied Psychology 92 (2007): 425–37.
- 33. Paula McDonald and Sara Charlesworth. “Framing Sexual Harassment through Media Representations,” Women’s Studies International Forum 37 (2013): 95–103. By contrast, empirical estimates indicate that harassment is also perpetrated by coworkers and customers and that men as well as women are increasingly the targets of harassment.
- 34. Id.
- 35. Id. at 99. It is well documented that discrimination claims are less likely than other claims to ever be filed in court, let alone adjudicated. Richard E. Miller and Austin Sarat, “Grievances, Claims, and Disputes: Assessing the Adversary Culture,” Law and Society Review 15 (1980): 525. In addition, media systematically exaggerate plaintiff wins and damages in employment actions, including in sexual harassment cases. See Laura Beth Nielsen and Aaron Beim, “Media Misrepresentation: Title VII, Print Media, and Public Perceptions of Discrimination Litigation,” Stanford Law and Policy Review 15 (2004): 237; Patrice Rosenthal and Alexandra Budjanovcanin, “Sexual Harassment Judgements by British Tribunals, 1995–2005: Implications for Claimants and Their Advocates,” British Journal of Industrial Relations 49 (2010): 236–57.
- 36. McDonald and Charlesworth at 99.
- 37. Id. The authors note that this individualization of the problem also encourages questions about the truthfulness of the claimant given that it is one person’s word against another’s.
- 38. Sandra E. Garcia, “A Mom’s #HimToo Tweet Ignites a Viral Meme, and Her Embarrassed Son Clarifies,” New York Times, Oct. 9, 2018, https://www.nytimes.com/2018/10/09/us/him-too-tweet-hashtag.html.
- 39. Id.
- 40. Matt Stevens, “What We Know about Rachel Mitchell, the Prosecutor Who Questioned Christine Blasey Ford,” New York Times, Sept. 26, 2019, https://www.nytimes.com/2018/09/26/us/rachel-mitchell-bio-facts.html.
- 41. Jennifer Peltz and Michael Kunzelman, “Women Supporting Kavanaugh Find Themselves in Storm’s Center,” Associated Press, Sept. 19, 2018, https://finance.yahoo.com/news/women-supporting-kavanaugh-themselves-sto....
- 42. Anna North, “In 1991, Virginia Thomas Defended Her Husband. Now Brett Kavanaugh’s Wife Is Doing the Same,” Vox, Sept. 24, 2018, https://www.vox.com/2018/9/24/17898668/brett-kavanaugh-wife-fox-intervie....
- 43. 43. Bob Cook, “One Thing We Know about Brett Kavanaugh: He’s a Girls’ Basketball Coach,” Forbes, Sept. 5, 2018, https://www.forbes.com/sites/bobcook/2018/09/05/one-thing-we-know-about-....
- 44. 44. Trip Gabriel, “The Trials of Bob Packwood,” New York Times, Aug. 29, 1993, https://www.nytimes.com/1993/08/29/magazine/the-trials-of-bob-packwood.html.
- 45. a. b. 45. Sarah Harsey & Jennifer J. Freyd (2020): Deny, Attack, and Reverse Victim and Offender (DARVO): What Is the Influence on Perceived Perpetrator and Victim Credibility?, Journal of Aggression, Maltreatment & Trauma, https://doi.org/10.1080/10926771.2020.1774695.
- 47. “The #MeToo Backlash,” Harvard Business Review, Sept.–Oct. 2019, https://hbr.org/2019/09/the-metoo-backlash; see also Bess Levin, “Wall Street Goes Full Mike Pence to Avoid #MeToo Accusations,” Vanity Fair, Dec. 2018, https:// www.vanityfair.com/news/2018/12/wall-street-goes-full-mike-pence-to-avoi....
- 48. Jane Mayer, “The Case of Al Franken: A Close Look at the Accusations against a Former Senator,” New Yorker, July 22, 2019, https://www.newyorker.com/magazine/2019/07/29/the-case-of-al-franken.
- 49. Michael E. Miller, “A Steep Price to Pay for Twenty Minutes of Action”: Dad Defends Stanford Sex Offender,” Washington Post, June 6, 2016, https://www.washingtonpost.com/news/morning-mix/wp/2016/06/06/a-steep-pr....
- 50. David A. Fahrenthold, “Trump Recorded Having Extremely Lewd Conversation about Women in 2005,” Washington Post, Oct. 8, 2016, https://www.washingtonpost.com/politics/trump-recorded-having-extremely-....
- 51. After the Stanford student athlete case, California eliminated felony probation for rape committed when the victim was either unconscious or incapable of giving consent due to intoxication. California Penal Code § 1203.065 (2020).
- 52. “‘This Moment Turned Out to be Fleeting’: Nine Reflections on #MeToo, One Year On,” New York Times, Oct. 6, 2018, https://www.nytimes.com/2018/10/06/opinion/me-too-weinstein-one-year.htm....
- 53. Catharine A. MacKinnon, “#MeToo Has Done What the Law Could Not,” New York Times, Feb. 4, 2018, https://www.nytimes.com/2018/02/04/opinion/metoo-law-legal-system.html?a....
- 54. See “Post-Weinstein, These Are the Powerful Men Facing Sexual Harassment Allegations,” Glamour, May 18, 2019, https://www.glamour.com/gallery/post-weinstein-these-are-the-powerful-me....
- 55. Brittany Shoot, “A GoFundMe for Kavanaugh Accuser Christine Blasey Ford’s Private Security Met Its Goal in Just Hours,” Fortune, Sept. 19, 2018, https://fortune.com/2018/09/19/blasey-ford-supreme-court-nominee-kavanau... Amanda Arnold, “Christine Blasey Ford Speaks Out about the Threats She’s Faced,” The Cut, Nov. 26, 2018, https://www.thecut.com/2018/11/christine-blasey-ford-threats-gofundme.html; “Kavanaugh Accuser Christine Blasey Ford Continues Receiving Threats, Lawyers Say,” All Things Considered, National Public Radio, Nov. 8, 2018, https://www.npr.org/2018/11/08/665407589/kavanaugh-accuser-christine-bla....
- 56. Kara Fox and Antoine Crouin, “Men Are Suing Women Who Accused Them of Sexual Harassment. Will It Stop Others from Speaking Out?,” CNN.com, https://www.cnn.com/2019/06/05/europe/metoo-defamation-trials-sandra-mul....
- 57. Chai Feldblum and Victoria Lipnic, EEOC Select Task Force on the Study of Harassment in the Workplace, Report of Co-Chairs Chai R. Feldblum and Victoria A. Lipnic, US Equal Employment Opportunity Commission, 2016, https://www. eeoc.gov/eeoc/task_force/harassment/; see also James E. Gruber, “Methodological Problems and Policy Implications in Sexual Harassment Research,” Population Research and Policy Review 9 (1990): 235–54 (estimating 44 percent of women experience sexual harassment).
- 58. Lilia M. Cortina and Vicki J. Magley, “Raising Voice, Risking Retaliation: Events Following Interpersonal Mistreatment in the Workplace,” Journal of Occupational Health Psychology 8, no. 4 (2003): 247–65, http://dx.doi.org/10.1037/1076-8918.104.22.168.
- 59. Lilith M. Cortina and Jennifer L. Berdahal, “Sexual Harassment in Organizations: A Decade of Research in Review,” in The SAGE Handbook of Organizational Behavior, vol. 1: Micro Approaches, ed. Julian Barling and Cary L. Cooper (Thousand Oaks, CA: SAGE, 2008), 469–97.
- 60. This is an important reminder that even if reports of sexual harassment drop following #MeToo, that does not necessarily mean that harassment is also declining. It could be that women are no longer reporting harassment for fear of retaliation.
- 61. The Time’s Up Legal Defense Fund, at https://nwlc.org/times-up-legal-defense-fund/, is making efforts to support less privileged women in their sexual harassment claims. Nevertheless, the stories of these women are not the ones making headlines.