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WINTER 2019 TODAY’S GENER AL COUNSEL

Labor & Employment

#MeToo and Federal Law: Will the Courts Ever Catch Up? By Philip R. Voluck

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he #MeToo movement has radically changed the way society views sexual harassment. While it has been a pervasive problem in most workplaces for years, #MeToo has dramatically thrust sexual harassment into a global spotlight. With the public’s attention captured, many silent victims have been prompted to speak out, motivating employers to respond lest they face the wrath of employees and consequences of perceived inaction. Despite #MeToo’s global impact, the current state of American law is clearly at odds with the cultural changes #MeToo advocates. The law’s concern is much narrower. Will these differences persist, or will the federal courts warm to the fact that the protection they offer is not enough? Should they even consider lowering the thresholds to incorporate new codes of civility? It was back in 1986 when the United States Supreme Court unanimously ruled that sexual harassment is a violation under Title VII of the Civil Rights Act of 1964 — the federal law that bans sex discrimination. In 1998, the Court

expanded the law’s reach to cover “same sex” harassment, reasoning that Title VII’s prohibition of discrimination, “because of . . . sex,” protects men as well as women. However, the Court added a cautionary note that liability for sexual harassment will not transform Title VII into a “general civility code for the American workplace,” since Title VII is directed at discrimination because of sex, not merely conduct tinged with offensive sexual connotations. Federal courts consistently apply the high court’s reasoning that the law does not reach genuine but innocuous differences in the ways men and women routinely interact. Indeed, as Justice Anthony Scalia wrote, “petty slights, minor annoyances and simple lack of good manners” are not legally actionable. Another federal court explained, “These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a general civility code.” As a general rule, incidents must be more than episodic; they must be sufficiently continuous

and concerted in order to be deemed pervasive. A plaintiff must establish that he or she subjectively perceived the environment to be abusive and that a reasonable person would have perceived it as such. #MeToo is now seeking to hold businesses accountable under circumstances that are not currently unlawful. Businesses across the country are now confronted with the reality that #MeToo is part of our culture. Perhaps nowhere is this reality more evident than in the workplace, where the legally viable concepts of sexual harassment and hostile work environment were first born, and are still being litigated. Trying to incorporate the underpinnings of #MeToo — respect, awareness and sensitivity — into the workplace is proving challenging to many businesses. One reason is that governing federal law has not changed to incorporate the teachings of #MeToo. To the contrary, it remains rooted in the strict thresholds of proof required before an actionable claim of unlawful conduct can be brought. Off-color, distasteful and even vulgar remarks usually do not result in liability for employers. Strict evidentiary thresholds focusing on the nature and frequency of the harassment have been in force for decades. SEVERE, PERVASIVE AND UNWELCOME

Recent federal decisions indicate a gradual broadening in the types of sexual harassment cases that courts recognize; but they still hold that in order for sexual harassment to become an actionable legal claim it must be severe, pervasive and unwelcome. Courts have rejected claims of sexual harassment where the victim alleged that the harasser made an appreciative comment about her buttocks and deliberately touched her breasts, or where he

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