Harvey Weinstein, Roger Ailes, Matt Lauer, Louis C.K., Kevin Spacey and Steve Wynn are among the recognizable names of alleged sexual harassers who made headlines in the past year, leading to the launch of the #MeToo movement.
The #MeToo movement has publicly revealed what many privately know: Sexual harassment and assaults occur all too frequently in the United States in all work environments. Thousands of women have shared their #MeToo stories on social media, including U.S. Supreme Court Justice Ruth Bader Ginsburg. Yet few incidents lead to legal consequences. Despite receiving 7,000 complaints in 2016 alone, the Equal Employment Opportunity Commission (EEOC) estimates that three out of four individuals who experience sexual harassment do not report it, with victims either downplaying the incident, avoiding the harasser, or trying to ignore, forget or endure the behavior. Psychological research suggests that this is in part due to the perceived ineffectiveness of such reports and the fear of retaliation, and can often lead to a host of psychological injuries, including depression and post-traumatic stress disorder, as well as workplace consequences, such as missed days and lower productivity.
But while the #MeToo social movement gives victims a safe space to voice their concerns, the legal road is far rockier for victims. Sexual harassment law originated in Title VII of the Civil Rights Act of 1964. In 1980, the EEOC established guidelines to distinguish quid pro quo harassment (benefits in exchange for sexual favors) from hostile work environment harassment (determined by whether a reasonable person would see the conduct as severe, pervasive and unwelcome). Under these guidelines, employers are directly liable for quid pro quo harassment, but they can avoid liability for hostile work environment harassment by showing that they provided a way to prevent the harassment and that the victim failed to use it (Faragher v. City of Boca Raton, 1998 and Burlington Industries, Inc. v. Ellerth, 1998).
As a result, sexual harassment law focuses attention on the victim’s actions rather than the perpetrator’s, putting pressure on the victim to report the conduct, though he or she may feel uncomfortable doing so. It also provides employers with an easy escape: By providing basic sexual harassment training, getting employee signatures on harassment awareness forms, and/or running cursory investigations on complaints, employers can fulfill their (bare minimum) legal duties. In Vance v. Ball State University (2013), the U.S. Supreme Court further insulated employers from responsibility by narrowing the "supervisor" definition to those with the power to hire or fire employees. That is, employers are liable when a supervisor harasses an employee, but if those in nonsupervisory roles engage in harassment, victims must show that the employee should have known his or her behavior was harassment—once again putting the onus of showing that harassment occurred on the victim.
The good news for victims is that the legal system often yields to the cultural zeitgeist; it just takes time for newly elected officials to appoint judges that represent the cultural climate. Research suggests that asking people to take the victim’s perspective (rather than relying solely on a vague, "reasonable person" standard) helps them understand the nature of the harassment more fully. By acknowledging the ubiquity of harassment, the #MeToo movement ensures that people see the victim’s plight from her or his perspective.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
