Is #MeToo movement remaking workplace legal landscape?
With a near daily flood of new accusations against harassers, is it possible the tide is turning against sexual harassment in the workplace?
Elizabeth Tippett, an associate professor at the University of Oregon School of Law thinks so. But justice for victims may not come from the courts.
Tippett said one Supreme Court case in particular, Farragher v. the City of Boca Raton, has helped employers duck liability for workplace harassment in some situations. She said courts are concerned with whether the employer provided a way for victims to bring complaints, and whether they tried to do something to stop the harassment – though they don’t evaluate if those fixes were superficial.
“Courts are not so focused on punishment,” Tippett said. “And in a way that allows the employer to have their cake and eat it too, because they can tell the victim that they did something but also keep the harasser on the payroll.”
Tippett said employees tend to have a notion that fairness rules the workplace. So when it is determined that someone has been a victim of harassment, but nothing happens to the harasser, it can be surprising and disheartening.
With the growing number of high-profile harassment cases, however, Tippett said publicly shaming employers could be a more effective way to get them to punish harassers. She said harassment has the potential to tarnish a company’s brand, and a company’s brand is much more valuable than even a high-ranking employee.
“So now, when employers stop to think about it, they have to worry about, ‘How is this decision going to look if this allegation later comes to light, and will we be able to defend the decision that we made?'” Tippett said. “And they have to think harder about it than they used to.”
She said even potential harassers have to think about how they will defend themselves now, making them more accountable as well.
“I think that’s good,” she said. “And I think a lot of the perpetual harassers that we’ve seen in the news are people who operated for many years without any accountability for the decisions they made and the effect that those decisions had on their victims.”
Tippett added that one form of discrimination shouldn’t be replaced with another. In an era where harassers are held accountable, it shouldn’t mean women are excluded from informal opportunities like mentoring, networking lunches, or other ways in which someone might further her career.
