Tuesday, September 4, 2018
L. Camille Hebert, Is "MeToo" Only a Social Movement or a Legal Movement Too?, 22 Employee Rights & Employment Policy J. (2018)
This essay discusses some of the effects of the “MeToo” movement as a social movement, bringing issues of sexual assault and sexual harassment to the forefront. The essay then raises the question of whether that movement might also have implications for the law of sexual harassment. The essay discusses three elements of the law of sexual harassment—the “because of sex” requirement, the requirement that the harassment be subjectively hostile and objectively severe or pervasive, and the standard for employer liability for harassment—and explores the way that the “MeToo” movement might affect the way in which courts apply those elements. The essay then discusses other ways in which the law relevant to sexual harassment claims has been and may be changed by the movement, including with respect to mandatory pre-dispute arbitration agreements and nondisclosure agreements.