The #MeToo movement successfully challenged decades of pervasive sexual harassment in the workplace and all facets of society. Since then, the movement’s impact has reverbated throughout society, changing attitudes and spurring much-needed change. Workers, consumers, and citizens involved in the movement have not only held corporations and employers accountable for enabling sexual misconduct, but have also lobbied for legal reforms to effect meaningful social change.
Indeed, it is in the halls of Congress and state legislatures where #MeToo may have had the most tangible impact. At both the federal and state levels, legislators have responded to the movement’s demands for increased protections and remedies for survivors of workplace sexual harassment.
Federal Law Now Prohibits Mandatory Arbitration for Sexual Misconduct Claims
Employers have long used mandatory arbitration provisions to keep workplace sexual harassment and other claims out of the courthouse and out of sight. These clauses prevent workers experiencing unlawful discrimination and harassment from filing lawsuits in state or federal court and require them to waive their Constitutional rights to a jury trial if they want to have a job. Mandatory arbitration clauses require employees’ claims to be heard in arbitration, usually accompanied by an agreement not to disclose the allegations or the arbitration’s outcome publicly. . It is well known that employees win cases less often and for lower damages in arbitration than in jury trials before their peers, and employers win cases more often when they appear before the same arbitrators over and over again (the so-called “repeat-player advantage”).
However, because of #MeToo, employers can no longer use those provisions to silence victims of sexual abuse and harassment or deprive them of their right to seek relief in court. On March 3, 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act), which renders any contractual provisions mandating arbitration for sexual assault, harassment, and misconduct claims as no longer valid or enforceable.
Passing both houses of Congress with rare bipartisan support, the Act allows victims to choose between filing a civil lawsuit or going to arbitration to resolve sexual harassment or assault allegations. Specifically, the Act provides that “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute…, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which… relates to the sexual assault dispute or the sexual harassment dispute.”
The Act defines “sexual assault dispute” as one “involving a nonconsensual sexual act or sexual contact” and “sexual harassment dispute” as one “relating to conduct that is alleged to constitute sexual harassment under applicable… law.” A judge, rather than an arbitrator, will decide whether the Act applies to a given claim and arbitration provision, even if the agreement purports to delegate such decisions to an arbitrator.
Notably, the Act’s prohibition on forced arbitration provisions involving sexual misconduct claims applies retroactively. This means that any existing agreements or clauses that require arbitration of such claims will no longer be enforceable. Employers and other businesses that have relied on these provisions can no longer do so.
States Take Action
The #MeToo movement was equally impactful at the state level, with new laws passed that focused on both preventing workplace sexual misconduct and holding individuals and organizations accountable for their actions. According to a report by the National Women’s Law Center, 22 states and the District of Columbia have passed a total of more than 70 workplace anti-harassment bills since 2017. While many states have enacted post-#MeToo laws, California and New York, in particular, have been at the forefront of the changing legal landscape regarding sexual harassment.
In California, SB 1300 made it feasible for employees to pursue and prevail on sexual harassment and discrimination claims against employers by clarifying the standards courts use to establish a sexual harassment hostile work environment claim to reflect workplace realities. For instance, a single incident of sexual harassment is now sufficient to raise a triable issue regarding the existence of a hostile work environment. Similarly, SB 224 expanded protections for sexual harassment victims in professional services relationships outside the direct employer/employee relationship (e.g., actress/producer, founder/investor, lobbyist/legislator). The Golden State also extended the statute of limitations for filing an administrative charge involving sexual harassment from one to three years.
New York enacted several pieces of legislation similar to those adopted in California. It changed its Human Rights Law in several respects, including eliminating the requirement that harassment be “severe or pervasive” for it to be legally actionable, extending the statute of limitations for harassment claims to three years, expanding the law to cover all employers as well as non-employees and domestic workers, and allowing for an award of punitive damages to prevailing plaintiffs, among other changes.
Several states also passed laws addressing non-disclosure agreements (NDAs) which employers regularly used to prevent victims of sexual harassment from speaking out after they settled their claims. Such laws include California’s STAND Act in 2018 and the Silence No More Act in 2022, limiting employers’ ability to silence victims with broad NDAs when they speak out about discrimination and harassment claims. The previously cited National Women’s Law Center report notes that 16 states have enacted restrictions on NDAs since 2017.
Thanks to the #MeToo movement, breaking the law by engaging in or failing to prevent or remedy sexual harassment will come with far greater consequences, and workers now have more power to hold sexual harassers and their corporate enablers to account.